In a motion to dismiss, the league ridiculed Gruden as “painting himself as the victim in a fictional story,” and emphasized that Gruden created trouble for himself by penning emails containing “racist tropes and misogynistic and homophobic slurs, inflicting harm on public figures, NFL players, and anonymous women alike.”
The league flatly dismissed Gruden’s assertion that NFL commissioner Roger Goodell leaked decade-old, “non-confidential” emails as “internally inconsistent.” The motion said Goodell did not leak emails and maintained that “even accepting Gruden’s meritless allegations as true solely for purposes of this motion, not a single cause of action in his kitchen-sink Complaint can survive, for numerous reasons.”
Last November, Gruden sued the league and Goodell over what Gruden contends was a “malicious and orchestrated campaign” to destroy his career.
The case centers on the leaking of Gruden’s emails to The New York Times and The Wall Street Journal. As an ESPN employee in 2011, Gruden regularly corresponded with then-Washington president Bruce Allen. The emails contained derogatory remarks, including a message wherein Gruden labeled Goodell a “clueless anti football pussy.” Gruden’s emails were among the 650,000 obtained by attorney Beth Wilkinson, whom the NFL retained to examine sexual harassment accusations involving Washington Football Team personnel.
Gruden, 58, resigned in disgrace last October, leaving behind an estimated $60 million in his Raiders contract.
Gruden’s complaint includes seven claims, including intentional interference with contractual relations, tortious interference with prospective economic damage and negligence. Gruden insists that his potential employment and endorsement opportunities have been ruined. He maintains the league unlawfully failed to secure confidential materials.
Gruden doesn’t refer to tangible evidence that Goodell, or any specific person, was the leaker. His complaint nonetheless surmises that since “Goodell was a frequent target in the leaked emails,” the commissioner “retaliated by harming Gruden’s reputation and ending his career with the Raiders.”
In Wednesday’s court filing the league aggressively repudiated Gruden’s theories of liability.
“Gruden concedes,” the NFL stressed, “that he wrote the disclosed emails and does not allege that any of the information contained in them was false in any respect. Simply put, Gruden’s allegation is that he was harmed by the truth—the statements he concedes he wrote in multiple emails.” Further, the league maintains that the league “would have been privileged to disclose Gruden’s emails” if it so wanted.
In addition, the league underscored that “had the NFL parties wanted to fire Gruden, they had no need to resort to ‘leaks’ to force his resignation (or to force the Raiders to fire him).” This is because “they themselves had the right to cancel Gruden’s contract: the NFL Constitution grants the Commissioner the ‘complete authority to . . . [s]uspend and/or fine’ or ‘[c]ancel any contract or agreement’ of any ‘coach’ ‘[w]henever the Commissioner, after notice and hearing, decides” the coach “has either violated the Constitution and Bylaws of the League or has been or is guilty of conduct detrimental to the welfare of the League or professional football.”
While Gruden blames Goodell, alternative theories have been posited. The Washington Post suggested that WFT owner Daniel Snyder is a potential leaker due to his dislike of Allen and NFL executive vice president Jeffrey Pash, a Goodell ally whose emails were also leaked. In that scenario, Gruden would have been collateral damage, not an intended target. Other potential leakers could be those involved in Wilkinson’s investigation, ESPN employees, Raiders employees (with whom Gruden’s ESPN emails were shared) or even hackers. Echoing this point, the NFL on Wednesday said that Gruden’s emails “were already sitting in the hands of Gruden’s many recipients.”
Gruden can hope the case advances so that Goodell is ordered to provide sworn testimony, but if Goodell testifies that he had no part of the leaks, the case likely collapses. Gruden has no way of forcing the reporters who obtained the emails to reveal their sources, because of reporter’s privilege under the First Amendment.
Even if Gruden could prove Goodell or another NFL official was the leaker, he wouldn’t necessarily win. Gruden must establish that Goodell or the league owed a duty to Gruden and that the duty was breached.
To that point, Gruden emailed without any assurance of privacy. There’s no indication the emails were marked confidential; even if they were “confidential,” they were still emails, which, like other forms of electronic evidence, are vulnerable to disclosure. Having previously coached in the NFL (1990, 1992 to 2008), Gruden was likely aware that WFT emails, like those of other teams, were subject to league oversight. He also presumably knew that the NFL has been suspected of leaks to national media over the years.
Gruden might be an unintended beneficiary of a separate legal matter. The House Committee on Oversight and Reform chair, U.S. Rep. Carolyn Maloney, along with U.S. Rep. Raja Krishnamoorthi, have demanded records on the WFT investigation. The committee has deemed the NFL not fully compliant. Subpoenas could be issued, and Goodell could be forced to testify. Or nothing might happen, especially as other matters in an election year are prioritized.
Clark County District Court Judge Nancy Allf is presiding over Gruden v. NFL. On Feb. 1, she will hold a hearing to admit out-of-state attorneys to work on the NFL’s defense. Additional hearings will likely be scheduled for the spring and summer.