Jim Trotter files response to NFL's effort to dismiss his wrongful termination lawsuit
The battle before the battle has been joined.
The NFL, unable to take the Jim Trotter lawsuit to arbitration (i.e., the secret, rigged kangaroo court), will first defend itself against Trotter's claims by trying to get them thrown out. On Friday, Trotter's lawyers filed his response to the NFL's motion to dismiss.
PFT has obtained and reviewed a copy of the 22-page document. And while briefs of this nature are routinely riddled with legalese and citations to other cases decided in the past, the most potent stuff comes from preliminary statements that summarize the argument.
At page one of the Trotter response, he attacks the league's position as being "more notable for what it ignores than what it states." And the "Preliminary Statement" to the memorandum of law then explains the facts the NFL "largely ignore[s]."
First, Trotter's lawyers point out that the NFL "largely ignore[s] the fact that the Complaint alleges that Mr. Trotter engaged in three specific instances of clearly protected activity that each occurred two months, three weeks, and 12 days, respectively, before his termination."
Second, Trotter's lawyers write that the NFL ignores that Trotter "expressly raised the fact that the NFL failed to hire or promote a Black person into a leadership position in NFL Media or a full-time position on the NFL Media news desk."
Third, Trotter's lawyers explain that Trotter drew an "express parallel" between that dynamic and the pending lawsuit filed by Brian Flores and others against the NFL, for racial discrimination in the coaching context.
Fourth, Trotter's lawyers note that he "gave examples of discriminatory slurs used by NFL team owners . . . about Black players."
Fifth, Trotter's lawyers argue that, before Trotter made his complaints, Trotter was told that his employment contract would be renewed and his role "could even be enhanced."
The rest of the document provides the details to back up those basic propositions, before turning to the application of the law to the allegations Trotter has made. The details include a reminder that Trotter's complaint points out that Cowboys owner Jerry Jones said to Trotter regarding lack of diversity in team leadership, "If Blacks feel some kind of way, they should buy their own team and hire who they want to hire"; that Bills owner Terry Pegula allegedly said to another NFL employee regarding Black players protesting systemic discrimination, "If the Black players don’t like it here, they should go back to Africa and see how bad it is"; that complaints about the Jones and Pegula remarks went nowhere; that Trotter repeatedly raised his concerns about diversity in the NFL Media newsroom privately and publicly (including twice at the Commissioner's Super Bowl press conference); and that, after the second time Trotter confronted Goodell on the issue in a public setting, management's attitude toward him changed.
The memo also reviews the portion of Trotter's complaint recounting his conversations with his supervisor, which allegedly included encouragement that he "compromise" in order to "pay the mortgage."
While the NFL will have every right to defend itself on the merits, there's a very high bar when it comes to getting a case dismissed based simply on the contents of the initial complaint. The defendant in a civil action has to be able to show that, even if everything the plaintiff claims is true and correct, the plaintiff can't win.
It's hard to imagine any defendant having a snowball's chance on the visiting team's sideline during a Miami game in September of winning the case, if Trotter's allegations are regarded as true. But the NFL is willing to spend the time and money in an effort to get lucky at this stage, because it doesn't want to submit witnesses like Jones, Pegula, and Commissioner Roger Goodell to aggressive questioning during sworn deposition testimony.
The NFL also doesn't want to produce internal documents and other communications regarding, for example, the investigations (or lack thereof) regarding the Jones and Pegula remarks and the representation data for the newsroom. (Goodell was asked about it, again, last month and, once again, he found a way to talk around it.)
The NFL will have the last word in writing. Then, there could be an oral argument in open court. Some judges will issue a ruling without taking the time to get the lawyers together, if the right outcome is clear. This seems like one of those cases where a decision could be reached without the lawyers standing up in court and talking about the arguments they've made in writing.
Yes, it's very hard to envision the NFL winning at this level. Its position is far more buckshot than silver bullet. And, as Trotter's lawyers accurately explained, the NFL's effort to knock out the case overlooks if not completely ignores some of the strongest points Trotter has made in support of the idea that the decision not to renew his contract violated his legal rights.
