Sexual misconduct claims could determine course of Tiger Woods case: What we know

The domestic dispute between Tiger Woods and his ex-girlfriend, Erica Herman, took a drastic turn on Jan. 26, putting it on a path that’s led to where it is now – out in the open and headed for one of two possible big developments:

►Woods could pay her to go away.

►Or Herman could make a damaging accusation involving sexual misconduct.

That’s how the case appears to be set up right now after the latest filings in court this week from Woods’ attorney, legal experts told USA TODAY Sports.

"It appears to me, quite frankly, that she’s saying, 'Pay me money, or I’m going to start talking,' " said Ryan Saba, a civil trial attorney in Southern California who is not involved in the case but has been following it.

A judge also could kick the matter back into confidential arbitration to be resolved privately. But that all seemed to go out the window that day in January when the American Arbitration Association (AAA) placed their private conflict proceedings into abeyance.

The AAA did this because Herman said her conflict with the famed golfer involved a “sexual harassment dispute,” a claim that could allow her to get out of private arbitration and take her case to public court instead, according to court records obtained by USA TODAY Sports. Herman at the time cited a new federal law, enacted last year, that ended forced confidential arbitration in cases of sexual harassment or assault.

Last week, Herman also filed a lawsuit against Woods that seeks to release her from her nondisclosure agreement (NDA) with Woods, a document from 2017 that binds her to secrecy about their private life. In that case, she also cited the federal Speak Out Act, which can invalidate NDAs in cases of sexual harassment or assault.

Yet she has not made any specific public allegations of such misconduct.

Why not? And doesn’t she need to soon?

Here is a look at where the case might be headed and why she might have to make scandalous accusations unless Woods resolves this with a financial settlement before then.

What led to this?

Herman started this last year by filing a landlord-tenant complaint in state court after the couple broke up in October. After about six years together, she said she was forced out of his residence but had an oral tenancy agreement to remain at his seaside mansion on Florida’s Treasure Coast for five more years. She claimed more than $30 million in damages after being locked out in violation of the agreement.

She filed this lawsuit against a trust established by Woods for his home, not Woods himself, which helped it evade attention from the news media until she filed a related lawsuit in public court last week that named Woods as the defendant.

This was all merely a conflict about his home and money until January, according to court records. Before that, Woods had tried to steer the dispute back into confidential arbitration. In December, he initiated such a proceeding that sought to resolve the conflict there in accordance with the NDA, which requires their disputes to be resolved in private arbitration and not in public court.

But then Herman dropped a legal bomb of sorts.

What is Herman implying?

She invoked these new federal statutes to get around the NDA and confidential proceedings, citing “sexual harassment” or “sexual abuse” but not going into detail. She wants a state court in Florida to determine whether she can be released from her NDA in these circumstances but has not spelled out why.

She implied she could reveal more if given this green light by the court, saying in her more recent lawsuit against Woods that she is unsure whether she may disclose “facts giving rise to various legal claims she believes she has.”

“We do not know anything about the substance of these claims, and the NDA means we won’t know anything until a court decides whether or not the Speak Out Act applies,” said attorney Ann Olivarius of the firm McAllister Olivarius, which has represented survivors of abuse and those who have experienced discrimination. “All we know at this stage is that Herman’s attorney checked a box on the filing that says her NDA is unenforceable for that reason.”

Does she have to go into detail?

Yes, if she wants to proceed in public court, experts said, though it’s not clear how. Perhaps she could make allegations under seal in public court, said Saba, who represented numerous women in the sex abuse scandal involving University of Southern California gynecologist George Tyndall.

“If she’s truly been sexually harassed or sexually assaulted, then she’s right, but she needs to say that she has been,” Saba said. “Otherwise, she’s misusing the statute. It’s designed to protect people from the Harvey Weinsteins of the world.”

These laws came in response to those who abused NDAs and forced confidential arbitration to hide their sexual misconduct, such as in the cases alleged against Weinstein, the disgraced movie mogul.

“You can’t just say this statute applies without making allegations that the statute applies,” Saba said. “You can’t just say there’s this statute out there. This is a landlord-tenant case. This is not a sexual harassment or sexual assault case. Not yet at least.”

Woods’ attorney, J.B. Murray, has made the same argument: This is not a sexual harassment case, but is instead a private dispute between Woods and Herman that should be resolved in confidential arbitration as required by their NDA. Murray’s recent court filing called her a “jilted ex-girlfriend” and “not a victim of sexual assault or abuse sought to be protected by Congress when enacting the statute.”

How much does she have to say?

In order to proceed in public court and be released from her NDA, she needs to tell the court something about how her case involves sexual harassment or assault. How much she needs to reveal is another question. That’s because these are new laws, virtually untested and unguided by case precedent.

“To my knowledge, there are no cases that have gone to trial under the Speak Out Act,” Olivarius said. “Herman’s is one of the first, and certainly the first of any prominence.  We won’t know what thresholds apply until cases start hitting the courts.”

Besides citing these new federal statutes, her attorney only made one other reference to sexual misconduct allegations. It came on the civil cover sheet for the lawsuit against Woods filed last week. “Does this case involve allegations of sexual abuse?” asked the form.

“Yes,” answered Herman’s attorney.

Her attorney answered "no" to the same question for the lawsuit against the trust in October. All of this still could be enough to get Woods to act now. He is famously private and doesn’t want another run of bad publicity after his previous divorce, sex scandal and string of dangerous driving incidents.

Will he pay her to go away?

It depends on what he thinks she might say and if it has any basis in fact. He could seek to have her held in breach of the NDA and ring up her legal bills, too. Or he might not have the appetite for a public dispute against her at all, whether it’s meritless or not.

“I think what she would like to do is have this settled,” said Mark Fenster, a law professor at the University of Florida. “The best way to do that is to create as much adverse publicity for Tiger Woods as possible. He obviously doesn’t like adverse publicity. He’s had some in the past, and that’s the whole point of the nondisclosure agreement and the arbitration agreement. The only way the Speak Out Act would apply would be if she could make such allegations, in which case she gets around the NDA.”

Which leads them to where they are now: She must support her claims. Otherwise, the court could put the case back where it was in January – confidential arbitration and out of the public eye.

“Nothing about Ms. Herman’s claims relates in any way to a sexual assault dispute or a sexual harassment dispute, nor could they,” Woods' attorney said in a public court filing this week. “Accordingly, Mr. Woods respectfully requests that this Court first determine that (the federal statute) does not apply to the claims in this case and, next, compel the arbitration of the claims in Ms. Herman’s Complaint.”

Follow reporter Brent Schrotenboer @Schrotenboer. Email: bschrotenb@usatoday.com

This article originally appeared on USA TODAY: Tiger Woods' ex-girlfriend cites misconduct in suit: What's next?