A day after former Washington Commanders employees told members of Congress that Daniel Snyder and other team executives sexually harassed them, The Washington Post reports the league and team reached an agreement that neither side would disclose investigative findings absent mutual agreement.
The agreement highlights the legal authority of the league—a private business that oversees other businesses (NFL teams)—to decide what, if any, information is publicly shared and how the sharing takes place.
Snyder has fully denied the harassment allegations, calling them “outright lies.”
The “Common Interest Agreement” was signed, the Post reports, before the NFL took control of the workplace misconduct investigation. In July 2020, Washington hired former federal prosecutor Beth Wilkinson to investigate allegations detailed by the Post concerning women who allege they were harassed. Two months later, the NFL took over the investigation and Wilkinson would report to the league, rather than the team.
On Friday the Post revealed that as part of the shift in investigatory control, Snyder gained certainty that documents (such as potentially damning witness statements) wouldn’t be released without his blessing. The Post says the House Committee on Oversight and Reform’s investigation into Washington’s workplace misconduct uncovered the agreement.
The controversial decision by the NFL in July 2021 to announce a team fine of $10 million without an accompanying report now makes sense. At the time, the league offered only a generalized statement of rebuke. The move was in stark contrast to other league investigations into alleged team misconduct. For instance, in Deflategate, the NFL shared hundreds of pages of documents concerning accusations against the Patriots and its employees over slightly under-inflated footballs.
The league insisted it couldn’t release Washington documents and witness statements governed by nondisclosure agreements due to privacy considerations. However, attorneys for the accusers dispute that account. The accusers are now telling their stories to members of Congress.
To be clear, the NFL can lawfully reach agreements with its member teams and owners on disclosure of investigatory materials. The league doesn’t have to release anything, nor must it be consistent in when it opts for transparency and when it opts for secrecy. It is not a public entity and thus not subject to public records requests.
Likewise, the NFL can rely on attorney-client privilege and work-product doctrine (which exempts materials obtained by attorneys in investigations if in anticipation of litigation or trial) to reject requests for information, including from those suing the league and from lawmakers. Those privileges are not only relevant in the Washington investigation, but also in the NFL’s new probe into allegations by Brian Flores that Miami Dolphins owner Stephen Ross offered to pay him to lose games. Further, the league might argue certain documents contain trade secrets that lend another layer of protection.
But no privilege is without limit. Democrats on the committee threaten “alternate means” of obtaining “all documents pertinent to the Wilkinson investigation, as well the Wilkinson findings” if they’re not furnished by Feb. 14. Those means could include subpoenas that threaten contempt criminal charges for non-compliance. The league, however, could petition a federal judge to block any requests that violate document privileges and confidentiality.
There’s still another route for disclosure. Jon Gruden’s interference and negligence lawsuit against the NFL demands the Washington materials. While Gruden’s lawsuit faces challenging odds, the litigation is yet another difficulty for the league and its complex relationship with Snyder, his team and the records it keeps.
