NFL sidesteps attempt to reconcile DE&I efforts with the defense to the Jim Trotter lawsuit

The NFL conducted a conference call on Thursday aimed at providing "a preview of the NFL’s DE&I and social justice efforts, with a focus on the league’s collective goals, commitments and progress."

It's a noble endeavor. It also goes to the heart of former NFL Network reporter Jim Trotter's lawsuit against the league. Although the ultimate factual defense will be that the decision not to renew his contract after he repeatedly complained (and questioned the Commissioner publicly) about DE&I efforts in the NFL Media newsroom came from budgetary considerations, the league's frontline defense is, basically, "We're legally authorized to do the things Trotter has accused us of doing."

So I asked during the conference call if the DE&I efforts could be reconciled with the position that, as articulated in the Trotter case, the NFL has the legal right to terminate the employment of an employee for complaining repeatedly about DE&I issues in the NFL Media newsroom.

"I think we've been clear before that ongoing litigation obviously is complicated, so — but I will say this," NFL executive V.P. and chief administrative officer Dasha Smith said in response. "That we are just as focused on our efforts at the league office with respect to diversity, equity, inclusion and ensuring that we have a very diverse workforce, and a place frankly where people can have open discussions. And we have a no-retaliation policy. So with respect to that, obviously, we have tremendous respect for Mr. Trotter, but with respect to addressing specific allegations in the litigation, I'm unable to do that. You can thank our lawyers for that one."

The question wasn't addressing specific allegations. It was addressing the big-picture issue of whether the league's DE&I efforts mesh with the legal position that Trotter's case should be thrown out because the NFL has the absolute legal right to do the things that Trotter claims the NFL did.

It's not some obscure technical point. Trotter's lawyers recently called the league's position "morally abhorrent."

"[T]he NFL literally takes the position that it is permitted to terminate an employee for raising complaints about an employer’s lack of inclusion," attorney David Gottlieb wrote to the presiding judge in late November.

While the league would, if push came to shove, claim that it was merely exercising its legal right to test the sufficiency of allegations against it in light of existing precedent, the fact remains that the NFL is saying, in essence, "We're allowed to do it, and we'll do it again."

If the league separately hopes to truly impress the media and, in turn, the general public regarding it's DE&I commitment, the league should devote more attention to the arguments being made on its behalf in court.

And, no, it's never good enough to say, "You can thank our lawyers for that one." The lawyers at all times work for a client. Regardless of what the lawyers advise, the client at all times remains in control of what the client says, and what the client does. Hiding behind legal advice is a quick and easy way to, as in this specific case, avoid answering an uncomfortable question that speaks to glaring inconsistency.