Arizona Cardinals Docked $2.96M in Defamation Split Decision
Arbitrator and former NBA chief legal officer Jeffrey Mishkin issued a split decision Monday in former Arizona Cardinals VP of player personnel Terence (Terry) McDonough’s case for unlawful retaliation and related claims against the Cardinals and owner Michael Bidwill.
While Mishkin found McDonough failed to prove unlawful retaliation, intentional infliction of emotional distress and invasion of privacy, he established the Cardinals, through an outside public relations firm, defamed McDonough.
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Last year, McDonough filed a demand for arbitration with the NFL after he learned his Cardinals contract would not be renewed. As detailed in the Brian Flores and Jon Gruden workplace litigations against the league, NFL employment contracts and the league constitution place the NFL as overseer of disputes between executives and their teams. That approach is designed to keep disputes out of court.
McDonough believes the Cardinals let him go because he objected to the use of burner phones in 2018. The team had suspended then-GM Steve Keim in the aftermath of him pleading guilty to a DUI charge. McDonough and other Cardinals officials received burner phones to communicate with Keim during his suspension. McDonough accused the Cardinals and Bidwill of breaching his contract, age discrimination, civil conspiracy and other claims.
In response, the Cardinals hired a PR firm, which issued a lengthy and seemingly intemperate statement savaging McDonough as a father and human being. The statement contained:
· Vague references to McDonough’s “difficulties in his personal life and his often volatile demeanor toward colleagues.”
· A claim to “disturbing allegations of extreme domestic violence by Terry.”
· The assertion “After we hired Terry, we received a spontaneous overture from a close family member of his, writing that he was ‘troubled and perplexed’ about ‘recent changes in Terry’s behavior’ and that Terry had ‘abandoned responsibility’ to one of his children and cut her off financially. He characterized the way Terry ‘presents his good Dad image’ as ‘all just a ruse’ and described the hardship and personal hurt their family was enduring as a result.”
· A reference to “threats of violence toward a colleague at a widely attended Christmas party for co-workers.”
The team, McDonough argued, defamed him by stating he had financially cut off and abandoned responsibility for his special needs daughter. He also said the assertion he engaged in “extreme domestic violence” was entirely untrue. A defamatory statement is a false assertion of fact about someone that causes them reputational harm.
Mishkin stressed the absence of evidence showing McDonough acted in those abhorrent ways. Five days before the Cardinals accused McDonough of abandoning his special needs daughter, McDonough said he drafted a memo about relocating to North Carolina to be with his daughter.
McDonough also maintained the Cardinals knew he hadn’t financially cut off his daughter since they were in possession “of emails discussing the amount of child support necessary for McDonough’s daughter’s care, as well as a court order” declaring McDonough “had no responsibility for support.”
Another problem for the Cardinals concerned the so-called “close family member” source. That source, Mishkin explained, was a letter sent by McDonough’s former father-in-law, Stan Kavan, to Larry Fitzgerald in 2018.
Mishkin observed that describing a former in-law as a close family member is “undoubtedly a stretch,” especially since such a person may be biased against McDonough and not a neutral narrator. The Cardinals also used quotations around some phrases that didn’t appear in Kavan’s letter. Mishkin critiqued the Cardinals for “fully” adopting and endorsing Kavan’s allegations as “details” of McDonough’s character when they were unproven accusations.
In his 62-page order, Mishkin at times criticized McDonough, who is from a prominent sports family including his father, the late Boston Globe columnist Will McDonough, and brothers ESPN broadcaster Sean McDonough and former Phoenix Suns GM Ryan McDonough. Mishkin found McDonough had breached the confidentiality of the arbitration process last year by emailing an NFL journalist.
The arbitrator also found some of McDonough’s legal arguments unpersuasive. McDonough failed to prove a causal link between his objections to using a burner phone in 2018 with his termination five years later. “To the contrary,” Mishkin wrote, “the overwhelming evidence suggests that Mr. McDonough was relieved of his duties as a result of a staffing decision made by the Cardinals’ new general manager, Monti Ossenfort.”
Mishkin was also unconvinced by McDonough’s narrative that he was on the verge of becoming a general manager but is now “unemployable” as a result of the Cardinals’ PR statement. Mishkin said the facts told a different story. McDonough interviewed for only one GM job between 2017 and 2023 and had been demoted twice by the Cardinals during that stretch.
Mishkin acknowledged former Carolina Panthers and New York Giants GM Dave Gettleman’s testimony on McDonough’s behalf. Gettleman opined “the accusation that Terry ‘abandoned’ his special needs daughter … is so abhorrent that no one in football is ever likely to consider hiring Terry.” But Mishkin said Gettleman was obscuring McDonough’s demotions from #2 to #7 in the front office—demotions that would have dissuaded other teams from hiring McDonough.
McDonough sought $60 million to $90 million in punitive damages, which are designed to punish a wrongdoer and deter others from engaging in the same misconduct. As a comparable case, McDonough cited E. Jean Carroll v. Donald Trump. Carroll, an author, established that Trump sexually assaulted her in the 1990s and then defamed her while he was President of the U.S. (Trump denies wrongdoing and has appealed). A jury awarded Carroll $18.3 million in compensatory damages and $65 million in punitive damages in a case McDonough said featured “facts that resemble those in the matter at hand.”
Mishkin thought otherwise. He concluded a more appropriate metric for punitive damages, given due process requirements, is three times McDonough’s compensatory damages.
Mishkin awarded McDonough $2.25 million in punitive damages, along with $600,000 for emotional distress and $150,000 for harm to reputation. But he directed McDonough to pay the Cardinals $20,000 as a sanction for breaking a confidentiality order and $25,000 in Cardinals’ legal fees for defending against his unsuccessful contract-based claims. McDonough’s net damages award is $2.955 million.
McDonough and/or the Cardinals can petition a judge to vacate the arbitration award, but federal law requires a judge review an arbitration award with high deference. Mishkin’s legal reasoning is extensively detailed and supported by authority, evidence and testimony. If either side challenges him, they’d face an uphill fight.
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