Witnesses Clamor for NFL Email Evidence as Gruden Mulls Lawsuit

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During league meetings last week, NFL commissioner Roger Goodell asserted the NFL would not release materials gathered by attorney Beth Wilkinson in the Washington Football Team sexual harassment investigation, explaining the league assured witness confidentiality and wanted to “protect those who came forward.”

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But Goodell’s position has faced challenges from, among others, those who represent witnesses.

Attorney Lisa Banks, an attorney for 40 former WFT employees, told ESPN’s Outside the Lines that Goodell’s explanation is “disingenuous and false.”

While breaches of assurances could prompt witnesses to sue the NFL, Banks stressed that sharing investigatory information is not an all-or-nothing proposition—that some details could be made public without betraying confidence and that redacted accounts could provide information without identifying victims.

The NFL is sitting on a trove of information, including interviews with more than 150 people and a collection of 650,000 emails. While the league fined WFT $10 million in July, it declined to issue suspensions or strip draft picks, and eschewed sharing a written report about the investigation.

The league in the past has hardly been averse to issuing written reports. In 2015’s Deflategate controversy, the NFL released the 139-page Wells Report, which contained myriad details gathered from witnesses and leveled sharp accusations against specific people. An 82-page report by an engineering firm retained by the NFL was also made public.

The NFL’s sincerity in uncovering facts has similarly attracted skepticism. A person familiar with the WFT investigation told Sportico the NFL refused to indemnify participants, even with a carve-out for claims arising from the wrongdoing of the participant. Without indemnification, witnesses might have been less inclined to tell the truth and less willing to share evidence. They had reason to fear fallout from violating a non-disclosure agreement with the team.

Meanwhile, CBS Sports reports that former Las Vegas Raiders coach Jon Gruden is “mulling” the possibility of suing the NFL and Goodell after leaks of 10-year-old, bigoted emails resulted in the coach’s resignation.

A lawsuit by Gruden would face many hurdles.

For starters, it’s unclear how he could prove that a league official was the leaker. The league was in custody of the Gruden emails prior to their disclosure, but reporting indicates the Raiders also gained possession. Gruden reached a settlement with the Raiders to resolve the end of his employment. Such a settlement normally releases each side of potential legal claims against one another, meaning Gruden would likely be barred from suing the team.

Some have speculated the NFL secretly released the emails to damage Gruden, whose emails ridiculed Goodell (and many others).

For at least a couple of reasons, this speculation is problematic.

First, controversial emails sent by league executive vice president Jeffrey Pash were also leaked. Pash is arguably the second most powerful person in the commissioner’s office after Goodell, with whom Pash is close. Pash would be an odd person for the league to target in a leak.

Second, leaked materials have undermined the NFL’s image and damaged its standing with lawmakers. The House Committee on Oversight and Reform demands the NFL turn over, by this Thursday, numerous files and clarifying statements about the WFT investigation. This demand, which threatens to expose NFL business practices and potentially trade secrets, is a direct result of the leaks.

Meanwhile, Gruden wouldn’t get assistance from the reporters who obtained copies of his emails. They can’t be compelled to share sources and have a journalistic duty to preserve confidentiality.

Even if Gruden could establish the NFL was responsible, he would face difficulties in mounting a successful legal claim. Gruden sent emails to then-WFT president Bruce Allen in the normal course of his professional relationship and friendship. Unless the emails were marked “confidential,” “private” or a similar designation, Gruden likely lacked a credible expectation of privacy.

Gruden’s background would also work against him. In 2011, he was a 48-year-old former Super Bowl-winning coach who had 11 seasons of NFL head coaching experience under his belt. He was likely aware, or should have been aware, that emails sent to teams are subject to league oversight in the event of an investigation.

To that point, the NFL has substantial investigatory powers over teams as part of the league’s constitution. The commissioner can hire legal counsel to conduct investigations, among other steps to safeguard the league’s best interests.

CBS Sports suggests that Gruden could explore a claim for tortious interference, meaning wrongful interference with his employment. But in addition to the problem of identifying whom to sue, Gruden would have to overcome the fact that his own words—not the leak—damaged his employment. It’s also possible the league could argue that Gruden erred procedurally by failing to pursue a grievance with the league before resigning. Under Article VIII of the league constitution, Goodell has “full, complete, and final jurisdiction and authority” to resolve any dispute between coaches and any clubs.

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