In the summer of 2020, several employees of the Washington Football Team alleged that it maintained a toxic work environment rife with sexual harassment. After an investigation, the NFL fined the Washington Football Team $10 million and Washington agreed to implement the investigator’s recommendations. The NFL, however, did not publicly release the report.
Separately, Jon Gruden recently filed a multi-count lawsuit against the NFL shortly after he resigned from his job with the Las Vegas Raiders. His allegation is that the NFL allowed his emails to be leaked from the investigation involving the Washington Football Team. Mr. Gruden used racist, misogynistic, and homophobic slurs in emails he sent to a Washington employee. While Mr. Gruden is suing the NFL, he was not an NFL employee, or an employee of the Washington Football Team.
What Actually Happened?
In July 2020, the Washington Post reported that 15 female employees of the Washington Football Team had experienced sexual or verbal abuse. In a follow-up article, former cheerleaders alleged that they were recorded without their consent during swimsuit calendar shoots in 2008 and 2010. And Rachel Engleson, a former Washington Football Team employee and customer service representative, recently published her story in the Washington Post in which she explained “my eight years working for Washington in my 20s were excruciating, full of sexual harassment and verbale abuse.” While she reported the sexual harassment she endured to her boss, team executives, and lawyers, she wrote that most employees failed to act (and the ones that tried, were fired). She also passed up an interview for a promotion because her potential boss was known for his verbal abuse.
It is sometimes forgotten that sports teams are large employers. In addition to employing athletes, teams employ coaches, business executives, trainers, cheerleaders, a human resource department, marketing and sales employees, and other staff.
Because of the public allegations, an outside law firm conducted a workplace investigation. As part of investigation, more than 150 witnesses were interviewed and about 650,000 documents were collected. While the NFL subsequently fined the Washington Football Team $10 million (a relatively small fine for a billion-dollar entity), the NFL did not publicly release a report. In some past investigations, the NFL has released public reports (ranging from almost 100 pages to more than 240 pages). The NFL’s failure to release its report in this instance has led to public backlash.
While he never worked for Washington, Mr. Gruden has been associated with the NFL in various capacities. He previously coached the Oakland Raiders and Tampa Bay Buccaneers (leading them to win a Super Bowl). Between 2009 and 2018, Mr. Gruden worked for ESPN as a broadcaster. In 2018, he signed a contract in which he would receive $100 million over 10 years to work for the Raiders.
Mr. Gruden remained friends with Bruce Allen, who worked for the Washington Football Team. Between 2011 and 2018, Mr. Gruden sent several emails to Mr. Allen using degrading slurs, including slurs Mr. Gruden directed at NFL leadership (including the NFL commissioner and the executive director of the NFL’s Player’s Association). As part of the separate workplace misconduct investigation, the investigation also collected Mr. Gruden’s emails to Mr. Allen.
While the report of the investigation remained confidential, the New York Times and the Wall Street Journal received and released Mr. Gruden’s emails in October 2021. Due to the backlash of his comments, Mr. Gruden resigned from his position on October 11, 2021, and reached a settlement with the Las Vegas Raiders (though the terms of the settlement are not public). About one month after resigning, Mr. Gruden filed a lawsuit against the NFL.
What Does This Have To Do with Employment Law?
The investigation regarding the Washington Football Team involves allegations of rampant workplace misconduct and sexual harassment. Ms. Engleson’s article further explained that “There was no way to avoid the team’s culture of rampant harassment — at FedEx Field, at the practice and office facility then known as Redskins Park, at the preseason training camp in Richmond, or at off-site gatherings such as rallies, dinners and client events. It was everywhere and anywhere there was a team executive.”
Companies utilize outside law firms to conduct investigations, to take witness interviews, and to review documents. Based on the findings of an investigation, companies then make workplace decisions. In this case, there was a monetary fine and confidential settlements. The Washington Football Team has also stated it will implement the investigator’s recommendations.
Mr. Gruden filed an untraditional employment lawsuit that referred to his treatment by the NFL as “Soviet-style character assassination.” In his seven-count lawsuit, he alleges that the NFL intentionally released or leaked his emails to harm him. As a result, he claims the NFL tortiously interfered with his contractual relationships and prospective economic advantages (including his NFL contract and his other sponsorships and endorsement deals). He also claims the NFL engaged in negligence and alleges civil conspiracy and aiding and abetting. He seeks the balance of his contract “less offsets,” which likely means the amount he received as part of his settlement from the Las Vegas Raiders.
Mr. Gruden’s lawsuit is unusual because he was not an employee of the Washington Football Team, he was not the subject of the NFL’s investigation, and the NFL never released a public report. Mr. Gruden is not alleging he was wrongfully terminated (which he cannot do because he resigned), nor is he alleging he was defamed or disparaged. He also is not denying he sent the emails. And he is not alleging he was a whistleblower. On the surface, this is a difficult situation.
But Mr. Gruden appears to have some litigation leverage for several reasons: (i) the NFL appears to have deviated from past practices by not releasing its report, (ii) Mr. Gruden was not the subject of the underlying investigation, (iii) someone provided Mr. Gruden’s emails to the New York Times and the Wall Street Journal, and (iv) this situation will have a significant financial impact on Mr. Gruden. In addition, members of Congress have pushed for a public report of the investigation. Mr. Gruden might be able to leverage public outcry regarding the Washington investigation as leverage for his own negotiations.
While Mr. Gruden’s lawsuit is unique, unfortunately the situation involving the Washington Football Team is not. Ms. Engleson ended her article with this:
To endure all of this — to come forward to share a terrible experience, to seek change at a place that so desperately needs it and to have it go nowhere — left me heartbroken and discouraged. Goodell and the NFL have essentially buried more than 20 years of information, and they’ve demonstrated to survivors and women everywhere that they don’t care about us and that the harm we suffered doesn’t matter.
Publicly releasing the investigation’s findings would be a first step in regaining trust from WFT fans — showing that the league will step in when a franchise is in disarray. It would also signal that the NFL is willing to be a change agent for industry-wide standards on workplace culture and values. Releasing a written report would be just the starting point, though. The actions taken next would indicate whether the NFL can adhere to its core values: respect, integrity, responsibility to team and resiliency.
On behalf of the brave women and men who came forward to participate and spark change within the WFT and the NFL, I can say we deserve more than to be used as a PR shield to justify not releasing a formal report. It’s time for the NFL to let the world see Wilkinson’s findings and her recommendations for the future of the franchise.