Shortly before The Washington Post published its damning story concerning the alleged harassment of 15 women who worked for, or reported on, the Washington Redskins, the team retained an outside counsel, Washington D.C. attorney Beth Wilkinson. Her role wasn’t clarified until after the story ran. According to a statement by team owner Daniel Snyder, Wilkinson—a former federal prosecutor—and her law firm, Wilkinson Walsh, “are empowered to do a full, unbiased investigation and make any and all requisite recommendations.”
The NFL, meanwhile, says it will meet with Wilkinson and her colleagues “upon the conclusion of their investigation.” The league will then “take any action based on the findings.”
This arrangement begs obvious questions. Why doesn’t the NFL investigate? Why would the league rely on the team’s findings when the team is the alleged wrongdoer?
“Independent” investigations by teams sometimes attract skepticism. The attorneys are paid by the teams and enter into an attorney-client relationship with them. Ethics rules require that attorneys zealously advocate for their clients.
Given that Snyder is ultimately paying the attorneys’ bills, could their report conclude in writing that the team broke the law (which might strengthen potential legal claims by the complainants and also give them additional reason to sue) or that Snyder engaged in conduct that could warrant his removal from the league?
Sue Ann Van Dermyden, a senior partner at Dermyden Maddux Law Corporation and a workplace investigations expert whom the Sacramento Kings hired to investigate coach Luke Walton for alleged sexual misconduct, tells Sportico that a workplace investigation “rarely if ever determines if conduct is unlawful.”
Attorney-investigators are also not retained to advocate for the client, Van Dermyden said. Instead, the role of the attorney-investigator is mainly two-fold: 1) determine by a preponderance of the evidence if the alleged workplace misconduct occurred; and 2) assess if any misconduct violated an employment policy or contractual agreement. A report that addresses those two areas neither attempts to answer if laws were broken nor speculates on other points of inquiry (such as whether a league should take action against an owner).
Even if the Washington investigation is not designed to advocate for the team, materials gathered and transcripts of interviews conducted by attorney-investigators are typically subject to attorney-client privilege. This can make an investigation inaccessible to others—a not insignificant worry when Washington could be sued by the complainants or if the NFL demands a full accounting. However, Van Dermyden notes that it is not uncommon for clients to waive the privilege to show a good faith response and establish “that they did the right thing.” Being able to show a good faith response can support certain defenses if the company ends up in litigation.
There are still other issues. The Post notes that several of the complainants are concerned about breaching nondisclosure agreements. Unless the Redskins waive those NDAs or the league indemnifies the complainants, the complainants (and their attorneys) might be wary of speaking with team-retained investigators.
The NFL deferring to the Redskins is also, arguably, a change in practice. In 2018, the league oversaw a workplace investigation into Carolina Panthers owner Jerry Richardson. Richardson allegedly partook in physical and physical sexual misconduct of women who worked for the team. The Panthers initially announced they had, like the Redskins, hired outside counsel, but the league then stepped in.
A league source tells Sportico that the Panthers’ investigation should be distinguished from the allegations contained in The Post story. The source stresses the Panthers’ investigation “was centered on the owner” whereas the Redskins’ matter “is centered on the club.”
Although The Post depicts Snyder as possibly knowing about the harassment and as insensitively mocking ex-business operations president Dennis Greene for having been a male cheerleader, The Post emphasizes that none of the complainants accuses Snyder of harassment. The source also underscores that the league “will support the investigation as necessary” and carefully review findings.
Further bolstering the NFL’s perspective, it is not unprecedented for teams to investigate workplace misconduct or for attorneys hired by the team to produce credible reports. Misconduct by team officials is seemingly more within the team’s purview: it would have been committed by team employees, not league employees.
In 2018, the Dallas Mavericks hired two accomplished attorneys, former Manhattan prosecutor Evan Krutoy and former federal prosecutor (and former attorney general of New Jersey) Anne Milgram to investigate allegations of sexual misconduct by Mavericks employees.
As reported by Sports Illustrated, the NBA was comfortable with this arrangement for several reasons. First, Kurtoy and Milgram had national reputations to uphold. They would not have agreed to partake in a facade. Second, neither had ties to Mark Cuban or the Mavericks. They were located out-of-state, too. Third, the NBA embraced the idea of separate law firms examining the findings and testimonies. That dynamic created opportunities for different viewpoints. Fourth, while the Mavericks’ investigation was led by attorneys retained by the team, the NBA insisted on “full and complete” access to all evidence and testimonies.
The Mavericks’ investigation, which led to a detailed 43-page report, provides reason to believe that Wilkinson’s report will be similarly authoritative. She, like Kurtoy and Milgram, is a highly-respected attorney who has a reputation to uphold.
Yet not all are persuaded. Given the extensiveness and grotesqueness of the accusations and given that Snyder’s franchise was previously implicated in alleged harassment of cheerleaders, some around the league believe the NFL and Roger Goodell should be directly involved. As things stand now, the NFL will rely on a report by team-commissioned investigators.
Sportico spoke with one team president who is incredulous the league is not conducting its own investigation into Snyder.
“Would they do that to a lesser owner? No way.”