Last week, the NFL responded to Jon Gruden’s lawsuit alleging the NFL was the true actor behind the leaks that ultimately led to his termination with the Las Vegas Raiders. The NFL filed a multi-faceted motion to dismiss, in which they argued that the suit should be moved into arbitration in accordance with the NFL Constitution and Bylaws (which we won’t address here) and that Gruden’s lawsuit lacked cause. Specifically, they reasoned that Gruden cannot deny that he wrote the terrible statements in those emails and that those comments by themselves constituted enough cause for the Commissioner, Roger Goodell, to terminate Gruden’s contract under his executive powers.[1] This admission by the NFL gives us a significant indication on not only how they intend to proceed with Gruden’s lawsuit, but also the possible reasoning behind the NFL’s aggressively defensive strategy with regards to the contents of the Washington Football Team investigation.
This admission by the NFL indicates to some extent what we already suspected, that the NFL has (or at least indicates that they have) a detailed knowledge of the WFT Investigation emails. Further, they understand that the contents, when exposed, were cause enough for league personnel to lose their jobs (whether due to the Commissioner’s hand, as they argue they had the right to do, or Raiders Owner Mark Davis’ after the situation became untenable for his franchise). If the NFL does not now release the rest of the emails knowing they contain no further nefarious information, then I only see the following three scenarios as possible reasons why:
The contents, or the inaction shown by the NFL in response to reported misconduct, are so damaging to the league itself that they must do everything possible to prevent their publication. Some have already argued this is the real reason, including Pro Football Talk’s Mike Florio.[2]
The NFL (see: owners) do not want to create a precedent where public pressure, warranted or not, could cause the sale of an unwilling owner of a franchise (as the contents of the WFT investigation may force Owner Dan Snyder to do).
The NFL (again, see: owners) do not want to ever reach the discovery phase of any lawsuit they are involved in, no matter the gravity of the underlying documents (as they attempted to avoid in the St. Louis Rams lawsuit).[3]
If Scenario 2 or Scenario 3 are reality, then I think there have been (or need to be) some serious discussions at the NFL Headquarters about what is ultimately best for the organization. I say “organization” in reference to the NFL itself, as much as you consider it that and not an association of 32 separate individual businesses (as Federal Courts have found).[4] But if you consider what’s best for the organization, then there’s a legitimate argument to be made that transparency in this case, aka the release of the WFT investigation emails, may begin the long, slow, painful process of rebuilding public trust in the institution of the NFL to handle these issues on their own in a morally-correct way (assuming they care about that sort of thing).
This is not a new concept for the NFL. They have released extensively detailed reports on investigations in the past, with the Ray Rice investigation being a prime example.[5] To do so now would be a wholistic recommendation that would need concurrence from the PR, Legal, and Organizational Management teams, but its not absurd to think that we’re reaching a point where that is the reality. The cost of protecting Dan Snyder (or any other league personnel implicated by these documents) or the privacy of these documents purely to avoid discovery in Scenario 3 is most likely no longer outweighing the benefit of restoring some semblance of public faith in how the NFL treats its employees and players by releasing the contents of the investigation. If their leadership team has an interest in being (much less being viewed as) a morally-conscious or value-based organization, they should be able to see that. I realize that may be naïve to think they care, but let’s assume based on their various community service and engagement initiatives that they might.[6] To continue to dig in based purely on avoiding precedent or discovery would be an indication by Roger Goodell and his team that they are more interested in the individual desires of the 32 NFL franchise owners than what is ultimately “good for the gander,” something that we suspect is part of the job description of NFL Commissioner and comes with Roger Goodell’s rumored $60 million dollar salary.[7]
The NFL is a conglomeration of smart people, which is why everything I just said is unlikely to have played out, because ultimately someone smarter than me (an ever-growing segment of the population) would have figured out by now that this is hurting the NFL way more than it’s helping. That’s why Scenario 1 starts to look more and more likely, whether due to the heinousness of the original offense or the lack of action by the NFL, which if it is the latter continues to grow by the day. If that inaction is the root of all of this legal maneuvering, then I would only advise that there is a saying about bad news and time. As Dan Wallach pointed out, this information will come out eventually, there’s too much public interest now for it not to.[8] The end of that bad news not getting any better with time may be when the leaders of the NFL are sitting in front of Congress or emptying the contents of their desks and walking out onto Park Avenue.
Michael DiLiello is an Army Officer transitioning to the Sports Law field and will enroll as a 1L in the Fall of 2022. His opinions are purely his own and do not reflect the opinions of the United States Army, the Department of Defense, or any other external agency.
Twitter: @Mike_DiLiello
[1]Mohr, Dani. 2022. NFL files motions to dismiss Jon Gruden's 'baseless' lawsuit: 'He has no one to blame but himself'. January 09. Accessed January 28, 2022. https://www.sportingnews.com/ca/nfl/news/nfl-motions-dismiss-gruden-lawsuit/21ems6gzx8nw12wztnm098fyk [2] Florio, Mike. 2021. Former WFT employee possibly sheds light on why NFL is covering up the results of the investigation. December 23. Accessed January 28, 2022. https://profootballtalk.nbcsports.com/2021/12/23/former-wft-employee-possibly-sheds-light-on-why-nfl-is-covering-up-the-results-of-the-investigation/. [3] Wallach, Dan, and Dan Lust. 2022. Conduct Detrimental: S3 E68; 10:05-22:40. [4] Wallach, Dan. 2021. NFL Can’t Transfer Gruden Lawsuit to Federal Court Due To Corporate Status. November 19. Accessed January 28, 2022. https://www.conductdetrimental.com/post/nfl-s-status-as-unincorporated-association-may-bar-removal-of-gruden-lawsuit-to-federal-court. [5] Mueller, Robert S. 2015. REPORT TO THE NATIONAL FOOTBALL LEAGUE OF AN INDEPENDENT INVESTIGATION INTO THE RAY RICE INCIDENT. WilmerHale. [6] NFL. n.d. NFL In The Community. Accessed January 28, 2022. https://www.nfl.com/community/. [7] Saul, Derek. 2021. NFL's Roger Goodell Reportedly Makes $63.9 Million Per Year — Here's How That Compares To Other Top Execs And Sports Commissioners. October 29. Accessed January 28, 2022. https://www.forbes.com/sites/dereksaul/2021/10/29/nfls-roger-goodell-reportedly-makes-639-million-per-year---heres-how-that-compares-to-other-top-execs-and-sports-commissioners/?sh=453f25cd5702. [8] (Wallach and Lust, Conduct Detrimental: S3 E68; 10:05-22:40 2022)
