In the aftermath of media reports that exposed Jon Gruden’s bigoted emails to former Washington Football Team president Bruce Allen—leading to Gruden’s abrupt departure as the Las Vegas Raiders’ head coach—the NFLPA now wants the league to release more than 650,000 emails and other records obtained from the Washington investigation. The league, USA Today reports, has only shared Gruden’s emails with Raiders executives and does not plan to engage in any wider disclosure.
The NFLPA, which has no shortage of reasons to demand transparency, could now force a legal battle over the records.
Last summer, the NFL initially allowed Washington to self-investigate claims that former employees were sexually harassed in a hostile work environment. The team hired former federal prosecutor Beth Wilkinson to lead a probe. By early fall, though, the NFL took over the investigation at the urging of attorneys representing women who claimed harassment. Wilkinson and her team would later report their findings to league officials.
Three months ago, the NFL announced that commissioner Roger Goodell had reviewed the findings, concluding that Washington’s workplace operated in a “highly unprofessional” and disrespectful manner, especially toward women. The league fined the team $10 million. In a statement, Goodell thanked Wilkinson, indicated the investigation was over and signaled, it seemed, the matter was closed.
That all changed last Friday when The Wall Street Journal published emails leaked from the investigation. One email consisted of Gruden, while an ESPN employee in 2011, writing that NFLPA executive director DeMaurice Smith had “lips the size of michellin tires.” Gruden also expressed anger at Smith over the NFLPA’s handling of CBA negotiations. In an apology to Smith, Gruden claimed the statement wasn’t racially motivated and that he used the term “rubber lips” to describe anyone he thought was lying.
That evening, Smith won a contract extension by securing the minimum 22 votes from the league’s player representatives for approval. That vote occurred after the NFLPA’s executive committee earlier in the week declined to unanimously approve an extension, instead rendering a 7-7 decision that sent the vote on to the player reps.
On Monday, The New York Times revealed other leaked emails from Gruden that exhibited homophobic, misogynistic and otherwise offensive features. Gruden, in emails, described Goodell as a “faggot” and “clueless anti football pussy.” As reported by the Los Angeles Times on Tuesday, some of the emails previously appeared in heavily redacted forms as exhibits in a federal litigation in Arizona.
The NFLPA has a particular stake in perceptions of Smith among NFL personnel, especially as they relate to labor issues.
As executive director, Smith is ultimately responsible for negotiating CBAs with the league’s management council. CBAs are crucial documents for players. They establish how revenue is split with players and impose myriad rules that govern players’ wages, retirement benefits, drug testing and other important terms of employment. The existence of racist emails sent between club officials and former club officials—Gruden previously coached the Tampa Bay Buccaneers—about a union president could reasonably cause the NFLPA to question whether the league is a trustworthy and ethical partner.
The NFLPA also has a fiduciary interest in assessing whether the league acts in good faith when applying the CBA. Former San Francisco 49ers quarterback Colin Kaepernick brought a much-publicized collusion grievance, in which he argued that teams had violated the CBA by conspiring to exclude him. Before the grievance ended in a settlement, arbitrator and University of Pennsylvania law professor Stephen Burbank denied the NFL’s request for summary judgment. The denial meant that Kaepernick and his attorneys, Mark Geragos and Ben Meiselas, had shown enough evidence to raise a genuine issue of material fact. In other words, Kaepernick possessed some evidence of teams conspiring.
Gruden’s emails contained criticism for players kneeling during the national anthem. While collusion requires two or more teams conspiring, and Gruden didn’t represent a team at the time, the NFLPA could rationally deduce that some of the 650,000 emails collected contain information related to the national anthem controversy and, possibly, expose CBA violations.
The use of racist, homophobic and similarly pernicious tropes is also important since it raises questions about the players’ work environment and teams’ compliance with civil rights law.
According to Statista, about 58% of NFL players are black and about 12% are from other minority groups. No data is known about players who are LGBTQ+. Raiders defensive end Carl Nassib is the only openly gay player, though several former NFL players have announced they are LGBTQ+. The larger point is that many of the NFLPA’s union members are from demographic classifications disparaged and mocked by Gruden. The NFLPA could plausibly question whether Gruden’s views were unique or shared by other persons who were in, or closely connected to, the league.
The NFL, which is being compelled to share sensitive documents as part of the Rams litigation in St. Louis, is not without defenses. For one, the Washington investigation was predicated on confidentiality. That means witnesses were assured their cooperation, including when they shared emails and other electronic evidence, wouldn’t lead to public disclosure.
If pledges by attorneys hired by the NFL to conduct investigations are broken, it could create at least two problems for the league. First, it’s possible witnesses could bring legal claims against the league, such as those for detrimental reliance and privacy violations. Second, future league investigations could be hampered. Witnesses would be reticent about sharing knowledge and materials given what happened in the Washington situation.
The NFL can also invoke attorney-client privilege. Although the league described the Washington investigation as “independent,” it still paid the attorneys. Materials gathered—such as emails and transcripts of witness interviews—are subject to the privilege. The league can credibly argue the materials are shielded.
Lastly, the league is a private business that operates as it sees fit. While government agencies and state universities are subject to public records requests, private entities are not. The league’s investigation into Washington was not a joint NFL-NFLPA activity. The NFL need not automatically share materials it gathers with the union, or vice-versa. And like other businesses, the NFL can, if it so chooses, leak selected information to selected media.
It’s possible the NFL and NFLPA could resolve a dispute over access to emails. The league could share some emails, possibly in redacted form. The league might also permit the union to view the emails without sending physical or electronic copies.
If no agreement is reached, and if the union elects to press the matter, the NFLPA could pursue a charge before the National Labor Relations Board. Section 8(a) of the National Labor Relations Act obligates management to bargain in good faith and uphold CBA obligations. The NFLPA could argue the league has engaged in unfair labor practices by refusing to furnish information relevant to the bargaining relationship and misapplying bargained terms. As noted above, the NFL could contend it has no obligation to turn over confidential materials and that doing so would jeopardize future workplace investigations. The league could also insist that any grievances must first be resolved through collectively bargained dispute resolution procedures before any involvement by the NLRB.
