Roger Goodell’s Congressional Testimony: a Scouting Report

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NFL commissioner Roger Goodell will testify this morning before the House Committee on Oversight and Reform in a hearing titled, “Tackling Toxic Workplaces: Examining the NFL’s Handling of Workplace Misconduct at the Washington Commanders.”

Goodell will appear virtually, and he will have to defend the league from committee members who have already concluded that his league “has failed to set appropriate standards for handling workplace misconduct.”

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The committee, chaired by U.S. Rep. Carolyn Maloney of New York, also invited Commanders owner Daniel Snyder to testify. Snyder declined, as is his right. The decision prompted a committee spokesman to blast the embattled owner as sending “an unmistakable message” that he “has something to hide and is afraid of coming clean to the American public and addressing major worker protection concerns facing the NFL.”

The hearing is scheduled to last two hours, and Goodell is the only listed witness. He could face dozens of questions from members who know many in the public will be watching the livestream. Some might use the opportunity to make speeches rather than pose questions.

Here are 11 points to watch:

1. Goodell has done this before. Don’t expect him to be rattled.

Goodell—whose father, Charles Goodell, was a U.S. Senator and Congressman in the 1960s—is no stranger to testifying. In 2009, he testified before the House Judiciary Committee in a hearing on concussions and other neurological injuries suffered by football players. The 63-year-old executive has also testified in legal proceedings, including for an arbitration for Ray Rice’s suspension and a Texas lawsuit involving seats at Super Bowl XLV. Expect him to remain composed and stick to talking points and preselected themes.

Goodell is surely aware the stakes for answering questions under oath are different from when answering questions posed by journalists and broadcasters. Knowingly lying to the media might be unethical, but is not illegal. Knowingly lying while under oath can give rise to criminal perjury charges.

This committee has a history of acting against sports witnesses it finds untruthful. In committee testimony in 2008, Roger Clemens denied allegations he used performance enhancing drugs. The committee didn’t believe him, referring the matter to the Department of Justice. Clemens was indicted for obstruction of Congress, false statements and perjury (a jury later found him not guilty).

2. The virtual format cuts both ways for Goodell.

During the pandemic, witnesses in Congressional hearings have been offered the chance to testify in person or virtually. The virtual format provides Goodell both advantages and disadvantages.

On the plus side, Goodell will control the setting in a room that he and his staff pick. He won’t be photographed going into the hearing like a defendant entering a court proceeding. He won’t face reporters awaiting him in the hearing room or outside of it. Though Goodell will likely remain on camera for as long as there are questions, he could terminate his participation whenever he likes—a move far less awkward to do virtually than in person. Remember, he has not been subpoenaed. He’s voluntarily participating.

On the downside, Goodell will miss the chance to chat in person with committee members before the hearing and try to soften them up and ease tension. He also won’t be able to read the room as he would by being there.

3. Expect Goodell to walk a fine line between acknowledging need for improvement while insisting no laws were broken. 

Many of the questions will concern topics at issue in ongoing litigation or active legal investigations. Anything Goodell says could be used by those suing the league or its teams, or by states’ attorneys general who are investigating the NFL over the treatment of female employees.

Goodell likely won’t say, “I can’t answer that upon the advice of counsel,” as he’d come across as evasive or weak. He’s the commissioner, after all.

Instead, expect him to (1) deny the league has broken laws but (2) acknowledge the NFL needs to improve on issues of gender and diversity in the workforce, detailing various initiatives to accomplish those goals. For instance, he’ll stress the league has hired former U.S. Attorney and Securities and Exchange chair Mary Jo White to thoroughly investigate workplace misconduct allegations.

4. When advantageous, Goodell will distinguish the league from teams.

Of all the major sports leagues, the NFL has been the most aggressive in claiming “single entity” recognition, meaning the league and its teams operate as one. The NFL argued that sentiment in American Needle v. NFL, a case before the U.S. Supreme Court in 2010. The NFL sought to be recognized as one with its teams, in the same vein that a parent company has subsidiaries or departments (think Microsoft with divisions for PCs and Xboxes). The reason: If the NFL and its teams are one, “it” can’t violate Section 1 of the Sherman Antitrust Act, which only governs competing businesses (plural). The league lost 9-0 at the Supreme Court. The  justices reasoned that the league and clubs aren’t a single entity since teams are independently owned.

Fast-forward to today. As a strategy for directing blame away from the league, Goodell could adopt the opposite viewpoint. He could stress that teams are independently owned, and their employees don’t work for the league.

To that point, Goodell might depict the Commanders’ workplace as unrepresentative among NFL teams. Goodell has to be careful not to suggest the league is powerless to oversee team employees—it isn’t, and many NFL policies are worded to apply to all employees. Still, Goodell will likely mention that the league had limited authority over former employees of the Commanders accused of wrongdoing.

5. Goodell’s comments could forecast whether NFL might move to oust Snyder.

Goodell will be asked for his reaction to Snyder rebuffing the committee. Snyder’s attorney took a swipe at committee members, saying the owner would only cooperate if the committee shows interest in obtaining materials “in a manner consistent with appropriate due process and fairness protections.”

The committee could also demand Goodell address a story published by The Washington Post Tuesday evening, about a 2009 allegation in which a female employee accused Snyder of groping her and asking for sex. Snyder denied any wrongdoing. The matter was resolved through a $1.6 million settlement. It’s unknown if the team reported the allegation to the NFL pursuant to the league’s conduct policy.

If Goodell expresses harsh criticism for Snyder, it could signal the commissioner is open to the owner’s removal. To be clear, removal of an owner would be unprecedented and remains highly unlikely. It would require, among other steps, a vote to remove by at least three-fourths of the 31 other ownership groups. Some owners would likely worry about the precedential impact of ousting a fellow owner.

6. Expect questions about other owners accused of misconduct with women.

Among owners, Snyder will receive the most attention since the hearing is about the Commanders. But committee members might observe that Snyder isn’t alone among owners accused of misconduct with women.

The league fined former Carolina Panthers owner Jerry Richardson after he was accused of making unwanted sexual advances towards female staff. Jerry Jones settled a lawsuit over claims he forcibly kissed a woman and, until the charges were dropped, Robert Kraft faced misdemeanor solicitation charges over alleged sexual services at a spa.

Goodell might be asked about how he can effectively police owners when they are also the group that employs him.

7. Expect questions about nondisclosure agreements.

While the hearing is attracting media attention mainly because of Goodell and the Commanders, it will also tackle a broader topic of interest to human resource professionals and employment lawyers: the use, or as the committee says “abuse,” of workplace nondisclosure, confidentiality and non-disparagement agreements.

Maloney has introduced legislation to restrict the use of NDAs and set uniform rules for when they are allowable. The gist of that topic is that employers sometimes use NDAs for illegitimate purposes (such as concealing workplace misconduct) and that Congress should intervene.

NDAs have become controversial in the wake of the #metoo movement on grounds they silence victims. They also quiet witnesses who could offer corroborating testimony. Several states—including Virginia (where the Commanders are headquartered) and Maryland (where the team plays home games)—have passed laws limiting their use. Traditionally, however, NDAs have been used to protect company trade secrets and other proprietary information.

The committee has repeatedly complained that its Commanders’ investigation has been stymied by NDAs, which forbid team employees and former employees from discussing their experiences upon threat of being sued for breach of contract and other claims.

8. Expect questions about ticket policies and prevention of fraud by teams.

In April, Maloney and U.S. Rep. Raja Krishnamoorthi of Illinois sent a letter to Federal Trade Commission chair Lina Khan expressing concern that “Commanders executives may have withheld millions of dollars in refundable security deposits owed to customers” and that the team may have also “concealed revenues that were owed to the NFL as part of a revenue-sharing agreement that redistributes revenues to 32 teams in the League and helps set salaries for the League’s football players.” The Commanders have flatly rejected these accusations as falsehoods raised by an ex-employee.

Goodell will likely be asked to address this specific controversy, and to explain more generally how teams and the NFL conducts audits of revenue.

9. Expect questions about the use of mandatory arbitration clauses.

Members of Congress can use hearings to ask witnesses about topics that might seem outside the stated topic. For example, last June, NCAA president Mark Emmert testified before the U.S. Senate in a hearing on name, image and likeness. Several senators asked him about non-NIL subjects, including the eligibility of transgender athletes.

Emmert was prepared for those questions. Expect the same from Goodell, who could be asked about hiring of minority coaches and team executives—a topic central to Brian Flores’ lawsuit against the league and several teams. A key defense for the NFL is that Flores’ employment contract with the Miami Dolphins contained a mandatory arbitration provision. The league is also relying on that defense in Jon Gruden’s lawsuit against Goodell and the league. Thus far, the defense hasn’t worked in Gruden’s case.

In March, the House passed the Forced Arbitration Injustice Repeal Act, which would limit opportunities for companies to mandate arbitration with its workers and consumers. The bill has not been passed by the Senate.

Goodell might offer traditional defenses of arbitration, including that it leads to a faster and private dispute resolution process for all involved.

10. Deshaun Watson could emerge as a topic.

Deshaun Watson, who on Tuesday settled 20 of the 24 lawsuits alleging sexual misconduct, is arguably relevant to a conversation on workplace misconduct in the NFL. His former team, the Houston Texans, allegedly shared NDA language with him, and his current team, the Cleveland Browns, has been criticized for rewarding him with a record-breaking contract.

Goodell will likely tread carefully in discussing Watson, who, if he’s suspended, could file an appeal overseen by Goodell. The commissioner doesn’t want to make a statement that could later be used by Watson’s attorneys in court to say he prejudged Watson. That said, Goodell might say he takes the allegations seriously and is awaiting a ruling by the NFL-NFLPA jointly appointed disciplinary officer, retired Judge Sue Robinson.

11. There’s likely not much Congress can do to the NFL or Snyder after the hearing.

The hearing will attract headlines, but the “what’s next” is murky. The NFL is a beneficiary of federal laws that, in theory, could be repealed or amended.

For instance, the NFL to some degree benefits from the Sports Broadcasting Act of 1961, a law that supplies the NFL (and the NBA, MLB and NHL) with a limited exemption from antitrust law in the context of national TV contracts when aired over free TV.

The NFL also benefits from tax laws regarding bonds issued by local governments for stadium construction. During the league’s national anthem controversy, then-President Donald Trump warned the NFL he could pursue a repeal of those laws.

The likelihood of Congress making good on such threats seems low. This is a midterm election year, and members will frequently be off campaigning. The Republicans are also expected to win a majority in the House, meaning the House Oversight Committee’s leadership and accompanying priorities will change.

That’s not to say there aren’t political consequences of the hearing. The Virginia General Assembly recently delayed a new stadium for the Commanders in the aftermath of controversial comments by defensive coordinator Jack Del Rio about the Jan. 6 insurrection. Those politicians could watch the hearing and draw opinions from it.

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