Gruden Sues NFL, Goodell for Forcing Resignation

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Jon Gruden is taking Roger Goodell to court, blasting the commissioner as responsible for a “malicious and orchestrated campaign” that destroyed Gruden’s career.

Last month the 58-year-old former Las Vegas Raiders head coach resigned in disgrace—and walked away from about $60 million left on a 10-year, $100 million contract—following the publication of leaked emails he sent while an ESPN broadcaster in 2011. On Friday, he filed a 21-page complaint in a Clark County, Nev. district court. The case, which names the league and Goodell as defendants, is premised on Gruden’s belief that the NFL unlawfully leaked emails obtained in the Washington Football Team workplace misconduct investigation.

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“There is no explanation or justification,” Gruden’s attorney, Adam Hosmer-Henner, said in a statement, “for why Gruden’s emails were the only ones made public out of the 650,000 emails collected in the NFL’s investigation . . . or why the emails were held for months before being released in the middle of the Raiders’ season.”

Gruden’s emails to then-WFT president Bruce Allen were derogatory. They also mocked Goodell, whom Gruden described as a “clueless anti football pussy.”

Much of Gruden’s complaint continues a ridicule of Goodell, except without crass language. Goodell is portrayed as overreaching, dictatorial and manipulative. Those alleged character defects, the complaint charges, were especially apparent as they related to Goodell’s treatment of Gruden.

“It is certainly not within Commissioner Goodell’s authority,” the complaint insists, “to disclose confidential information to the media or to pressure a team to fire one of its employees because that employee insulted Commissioner Goodell.” The complaint goes on to criticize the league for declining to release other emails and for directing its attorneys to refrain from publishing a written report on the WFT investigation—even with members of Congress demanding the investigation’s materials.

The complaint then asserts that Goodell and the league “attempted to create a distraction from the controversy over their handling of the Washington Football Team investigation.” They did so, the complaint maintains, by leaking emails in order “to publicly sabotage Gruden’s career.”

The alleged email release was targeted, the complaint says, to inflict the maximum damage on Gruden. The coach appears certain the NFL was the leaker since the lead investigator, Beth Wilkinson, shared the emails with the NFL and presumably no one else (though the NFL reportedly shared Gruden’s emails with the Raiders). The New York Times was a beneficiary because, Gruden’s attorneys write, it “is one of the NFL’s customary outlets for leaking information to the media.”

Gruden, who seeks monetary damages, brings seven claims. Among them are intentional interference with contractual relations, tortious interference with prospective economic damage and negligence. The claims maintain, among other theories of liability, that the NFL (1) his future potential business dealings, including endorsement opportunities; and (3) unreasonably violated a duty to preserve confidential evidence obtained in a workplace investigation.

How will the NFL respond?

As a starting move, the NFL will likely move to have the case removed (transferred) to federal court. The league might assume that a federal judge, who has a lifetime appointment, is less likely to be biased than a state judge, who is elected. Another risk with a trial in Clark County is that a judge can permit cameras in the courtroom, whereas cameras are barred from federal trials.

The NFL will also likely seek the dismissal of the case, armed with several arguments.

First, the league will dispute that it was the leaker. Gruden’s complaint maintains the NFL was the leaker largely through a process of elimination—the emails went from Wilkinson to the NFL. A court might not find that logic persuasive, since establishing the chain of custody of emails (and the WFTw, law firm, NFL and Raiders’ servers that hosted them) is not as straightforward as physical evidence. Also, if Goodell was the leaker, why would he have also leaked unflattering emails sent by his trusted confidant and arguably the league’s second most powerful executive, executive vice president Jeffrey Pash?

Gruden won’t get help from the reporters who broke the stories. They will refuse to share any information about the sources. They can invoke their reporters’ privilege, a right journalists possess under the First Amendment to refuse to reveal sources.

Second, Gruden might struggle to establish he had a legally protected expectation of privacy. It does not appear Gruden designated his emails as confidential. In fact, even the complaint says he sent them as a “friend and former coworker” of Allen’s. Gruden arguably should have known that emails are permanent records and can become publicly disclosed, particularly when the emailer, like Gruden, is famous.

Third, the NFL can insist that Gruden only has himself to blame. He wrote the emails. Goodell didn’t. To the extent the emails have damaged Gruden’s career, perhaps, the NFL might insist that Gruden should look in the mirror for the ultimate culprit.

Fourth, the NFL can insist it owes no duty to safeguard emails sent by Gruden. The NFL is a private business and was not in contract with ESPN broadcaster Gruden. By sending emails to WFT, Gruden brought his words into the NFL’s jurisdiction.

Gruden, however, doesn’t need to win the case to inflict damage on the NFL. Should his complaint advance past a motion to dismiss, a judge would order pretrial discovery. Gruden would no doubt like to force Goodell to answer questions under oath—where knowingly lying could trigger criminal perjury charges—about how reporters from The New York Times and Wall Street Journal obtained copies of the emails.

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