In the wake of the scandal emerging from leaked emails, Congress wants answers from the NFL—and wants them soon. The demand could spark a legal showdown between the league and Congress over disclosure of private records. It could also generate hearings where NFL commissioner Roger Goodell, Washington Football Team owner Daniel Snyder, league executive vice president Jeffrey Pash and other prominent figures are invited, if not subpoenaed, to testify.
In a letter to Goodell dated Oct. 21, House Committee on Oversight and Reform chairwoman, U.S. Rep. Carolyn Maloney (D-New York), and U.S. Rep. Raja Krishnamoorthi (D-Illinois) seek numerous files and points of clarification about the NFL’s sexual harassment investigation into the WFT.
Goodell has a Nov. 4 deadline to voluntarily produce a massive, far-reaching data trove, including:
* All documents, communications, reports and findings from the WFT investigation;
* All league policies and procedures relating to the use of confidentiality agreements and NDAs by the league and its teams;
* A list of all NDAs used by the league and teams since 2016, and notation as to whether each resulted from any allegations of discrimination and retaliation;
* A statement of reasons for why WFT supposedly “requested” that the NFL assume oversight over the attorney WFT hired to investigate itself, Beth Wilkinson, and why the NFL agreed;
* A statement explaining how, precisely, the NFL oversaw Wilkinson’s investigation—including which NFL executives conducted such oversight—and what, if any, changes Wilkinson made when oversight shifted from WFT to NFL;
* A statement explaining Pash’s role in the WFT investigation;
* A statement explaining which person or persons at the NFL instructed Wilkinson to provide her findings without an accompanying written report and an explanation as to why that was the case;
* A statement that provides a list of all meetings or briefings that Wilkinson gave to the NFL, including any interim reports or read-outs.
The committee finds it curious that the investigation—which involved interviews with more than 150 people, collection of 650,000 emails and a $10 million fine—lacked an accompanying written report. In comparison, the NFL’s Deflategate investigation in 2015 produced the 139-page Wells Report and an 82-page “science” report authored by a firm retained by the NFL (not to mention a more than 20,000-word rebuttal published by the Patriots). Both Deflategate reports were made available to the public.
The committee regards the absence of transparency particularly troubling given allegations that WFT offered to pay former female employees to sign non-disclosure agreements. NDAs, the committee worries, might have been used to conceal conduct prohibited by Title VII of the Civil Rights Act.
The committee also seems to doubt the league’s boasting of impartiality when it conducts investigations. Emails sent by Pash to WFT and Patriots executives during their respective investigations appear to corroborate that concern.
The NFL ought to be worried. The committee is the House’s main investigative entity. It has broad authority to investigate topics, including “any matter” within the jurisdiction of other committees.
This committee has aggressively used its sweeping powers in sports industry scandals. Most memorably, the committee investigated steroids and PEDs in baseball. In the 2000s, it held high-profile hearings, during which Mark McGwire, Rafael Palmeiro, Roger Clemens and other players testified. The committee’s dogged pursuit contributed to MLB’s hiring former U.S. Senator George Mitchell to chronicle and expose PED use. Clemens, meanwhile, didn’t impress committee members. They thought he knowingly lied, and they referred the matter to the Justice Department. Clemens was indicted with obstruction of Congress, false statements and perjury. A jury later found him not guilty.
Goodell is no stranger to the committee. In the early 2010s, it demanded Goodell and NFLPA executive director DeMaurice Smith share information about HGH testing and held hearings on HGH testing in sports.
The league’s compliance could lead to disclosure of records and admissions that might damage the reputations of its leaders. It could also spawn additional legal problems.
Leaks of Jon Gruden’s emails have invited serious questions about the prevalence of racism, sexism and homophobia in the NFL. Leaks of Pash’s emails have sparked conversations about whether each team is treated fairly. While the Associated Press reported from a source that no other current team or league personnel used disparaging language akin to Gruden, such a claim is only verifiable if the emails are seen.
The league and Wilkinson also assured witnesses that their cooperation in the WFT investigation would remain confidential. Those parties could potentially sue the NFL for detrimental reliance and, if any contracts were signed, breach. The NFL would also lose credibility for future investigations. Prospective witnesses would be skeptical of NFL guarantees if the league betrays pledges to WFT witnesses.
The NFL could also worry that compliance would adversely impact ongoing litigation in St. Louis. The league faces a January 2022 trial over its application of rules in the Rams relocation to Los Angeles. If any of the 650,000 emails relate to the Rams and haven’t yet been disclosed to the St. Louis plaintiffs, the NFL’s trial prospects could dim.
Also of likely concern to the NFL: the fallout from setting a precedent that makes its private investigations subject to a public review in Congress. Expect the same review for future NFL investigations.
The NFL hasn’t indicated if it will comply. The league told The Hill it would speak with Maloney’s office “soon” and that it believes workplaces should be free of harassment and discrimination.
The NFL has several options. It could fully comply, but that seems unlikely for reasons explained above. Another option is to share some of the documents, possibly with redactions. Then, on other documents, the NFL could invoke attorney-client privilege or work product doctrine, which are materials developed by an attorney for a client in anticipation of litigation. The league could also ask for more time. It’s unknown if the NFL has reviewed each of the 650,000 emails to determine the possible legal impact of disclosure.
The committee’s letter anticipates likely NFL justifications for refusing to comply. The letter stresses that potential litigation “shall not be a basis to withhold any information.” It also warns that any claim of privilege must be accompanied by a detailed explanation and descriptions of privileged documents.
If the NFL’s response fails to assuage committee members, they could seek subpoenas of witnesses and documents. In response, the NFL could move for a court order to block a subpoena.
The league could stress that the documents are privileged. It could also argue that committee members have misinterpreted the absence of a written report. The league is a private business and can generally conduct its affairs as it wishes. It has no automatic obligation to produce a report in every investigation. A public report for Deflategate does not bind the NFL to issue a public report for sexual harassment claims. The league could further underscore that while football air pressure allegations go to game competition, sexual harassment allegations involve decidedly more sensitive information.
If Congress finds the NFL uncooperative, it could resurface a longstanding threat. It could introduce legislation to limit or rescind the Sports Broadcasting Act of 1961. The SBA exempts the NFL, as well as MLB, NBA and NHL, from Section 1 of the Sherman Antitrust Act when a league signs national TV deals for “sponsored broadcasting” of games (meaning free, over-air-games and thus not through cable or paid satellite services). Prior to the SBA, the NFL and its teams, which are competing businesses, were found to be breaking antitrust law through national TV deals.