The NFL faces potentially far-reaching investigations into its workplace practices and allegations of gender, race and age discrimination through harassment and pay disparities.
New York Attorney General Letitia James and California Attorney General Rob Bonta announced on Thursday they have issued subpoenas to NFL executives regarding claims of hostile work environments in league offices in New York and California, respectively.
James and Bonta cite NFL-related lawsuits related to employment and media coverage of workplace controversies connected to the league. The subpoena cites a New York Times story from last year in which more than 30 female former NFL employees claimed a “stifling, deeply ingrained corporate culture” that “demoralized” them, “drove some to quit in frustration” and “left many feeling brushed aside.”
Subpoenas are written orders to share documents, or provide written or oral testimony, related to a legal proceeding or investigation. James and Bonta might seek emails, texts, memos, notes and other written materials sent by NFL executives, including commissioner Roger Goodell, regarding workplace matters and sensitive topics. Subpoenas can also require the answering of written questions while under oath or testimony given in person.
Whether the investigations lead to meaningful action remains to be seen. The AGs could pursue civil litigation against the NFL and its officials. The investigations might also generate evidence and testimony that could be used against the league in litigation brought by private individuals, such as Brian Flores in his employment discrimination case. Or, more cynically, they generate headlines on the day they are announced, provide political value to James and Bonta—both of whom are elected officials—and lead nowhere until they are eventually forgotten.
In a statement released to the media, the NFL pledged to “fully cooperate” but suggested the investigation was unnecessary.
“The NFL offices are places where employees of all genders, races and backgrounds thrive,” the league said. “We do not tolerate discrimination in any form.”
While the NFL says it will cooperate, the details of that cooperation remain to be seen. The NFL does not have to automatically comply with the subpoenas or other demands for information. Attorneys for the league could challenge them in court through motions to squash and other procedures.
The NFL could object to the subpoenas on several grounds, including that complying with them would interfere with contractual relations and infringe on workplace privacy. The league can argue the subpoenas would compel disclosure of sensitive information contained in personnel files that are governed by workplace policies. Employers usually make extensive efforts to avoid having to turn over personnel files in light of privacy considerations.
The information might also be subject to nondisclosure agreements contained in termination arrangements and settlements. The league could insist it would breach contractual duties owed to former employees–and face potential lawsuits—by complying with the subpoenas. If that defense sounds familiar, it’s because the Washington Commanders and the league used it to challenge a Congressional investigation into the Commanders’ workplace.
The NFL might also invoke attorney-client privilege and work-product doctrine, which exempts materials obtained by attorneys in investigations if in anticipation of litigation or trial. To the extent the NFL has consulted with attorneys in addressing workplace allegations, those consultations might gain immunity from disclosure.
Arguments grounded in trade secrets law might also assist the NFL, particularly if turning over emails and other documents contain sensitive business information. Although trade secrets might not provide a complete shield from subpoenas, they could allow for substantial redactions.
Lastly, the league might insist that to the extent wrongdoing has occurred in its private workplace, the appropriate vehicle to address them is through litigation brought by employees and former employees—not, the NFL might contend, are politically or and publicity-driven investigations.