With the NFL taking over the Washington Football Team investigation into alleged workplace misconduct, the flow of factual findings will move in a new direction that could spell more trouble for majority owner Dan Snyder. At a minimum, the team will lose its attorney-client privilege and be at greater risk to potential leaks. Meanwhile, Snyder will seek to retain both control of the message and ownership of the team.
As Sportico detailed in July, the league permitted the team to self-investigate claims made in a Washington Post story that 15 female former employees were sexually harassed by male executives amid an unprofessional workplace culture. Snyder was not accused. However, he allegedly failed to take preventative steps or impose remedial measures, and now new accusations have engulfed the team.
Attorneys Lisa Banks and Debra Katz represent 12 former Washington employees who are accusing the team of harassment and abuse. They petitioned the NFL, and the league office agreed to take over the investigation. Snyder and his wife, Tanya, released a statement asserting that it was their idea for the league “to assume full oversight of the investigation.” The couple insisted that such a development would ensure “the results are thorough, complete and trusted by the fans.”
An attorney who previously served as counsel for an NFL team tells Sportico that, despite the Snyders’ assurance, the league’s pivot reflects negatively on the embattled owner. The move, the attorney says, suggests that “fear of reprisal” is a legitimate worry for the league and “may have shifted things.”
If witnesses are worried that Snyder could sue them—he has a litigious history and recently sought a subpoena against a former employee, Mary Ellen Blair, based on his suspicions that she may have shared libelous information with a media company located in India—they would be less inclined to cooperate. “From the league office perspective,” the attorney says, “it’s unclear how they could feel good about the results of a team-supervised investigation” without key witnesses interviewed.
Noted sports attorney Jack Mula sees it differently. Mula was general counsel of the New England Patriots during the Spygate controversy and is familiar with league investigations. He believes the NFL’s pivot reflects a number of factors, including discussions between Banks, Katz and Lisa Friel, the league’s special counsel for investigations, and also the influence of Washington’s new president, Jason Wright.
“Jason,” Mula says, “is trying to instill a new culture—stop the bleeding and decay that has hurt the franchise in recent years; show others the right way [and] show how things will be done correctly.” Mula adds that the team relinquishing potential legal claims under non-disclosure agreements signed by onetime employees “is akin to everyone getting to the bottom of what really happened…. Honesty is the first chapter in the book of wisdom.”
Until this week, Washington oversaw its own investigation. With the league’s blessing, Washington hired attorney Beth Wilkinson, a highly respected former federal prosecutor, to lead what was termed an “independent” review.
Washington’s ability to retain the investigating attorney supplied the team with potential legal and public relations advantages. Most notably, materials gathered and transcripts of interviews of witnesses—be they accusers or bystanders—would be subject to attorney-client privilege.
A second Washington Post investigative story, published on Aug. 26, eliminated that advantage when it revealed additional accusations of mistreatment of female employees. Several accusations centered on Snyder. One involved a witness who claims that he had requested video material of cheerleaders, at times partially naked, be made into a DVD. Another involved a former cheerleader who insisted that Snyder encouraged her to join his male friend in a hotel room.
In a statement, Snyder dismissed the accusations as part of a “hit job” fueled by disgruntled former employees and predicated on uncorroborated finger-pointing.
Going forward, Wilkinson will report to the league, with whom the attorney-client privilege will rest. This means that information gathered and witness statements will be transmitted to the league, not the team. The league will control whether and how materials are publicly disseminated. Any tactical advantages previously enjoyed by Washington are likely lost.
One possible worry for Washington is the risk of investigatory leaks from league officials to journalists, who could then use damaging information to criticize the team and Snyder.
Mula, however, doesn’t foresee league leaks as likely in the Washington investigation.
“This isn’t about a playing rule or the amount of air in the football,” Mula asserts. “This is about people’s lives and sexual misconduct, a much more serious topic. I don’t think the league or any of its employees in this case will be talking about the investigation [with journalists].”
Could the investigation lead to Snyder’s expulsion from the NFL?
Unless Snyder voluntarily chooses to sell, the odds of that happening appear remote.