A lawsuit against golfer Tiger Woods by a former girlfriend could be the first to raise questions on the scope of a newly enacted #MeToo law.
Erica Herman said in a complaint in a Florida state court that a nondisclosure agreement she and Woods signed shortly after they began a romantic relationship should be voided under the Speak Out Act, passed late last year. The law cancels these types of pacts in cases where an NDA or nondisparagement pact was signed before allegations of sexual harassment and sexual assault.
The agreement, which court documents show was signed in 2017, forces any disputes, claims, or controversies between the two to be resolved by confidential arbitration. But Herman is asking the Florida court to void that agreement based on the recent federal law, even though the case didn’t originate with a sexual assault or sexual harassment claim.
“While it is very obvious that the intent of the statute is to eliminate the use of nondisclosure and nondisparagement clauses in the employment or contracting context, I don’t know that the expressed text of the statute is limited to that,” said James Paretti, an employment attorney in the Washington, D.C., office of Littler Mendelson P.C. “It’s an interesting case because it’s certainly not the test case I think Congress would have had in mind.”
Herman originally brought the case in October against a Woods trust that owns the house where they both lived for a potential infringement of a Florida real estate law. Among other charges, Herman claims that she was inappropriately expelled from her home.
Woods and Herman signed the agreement after they began a romantic relationship roughly six years ago, according to court documents. But while there are reports that Herman worked for restaurants owned by Woods, attorneys say the filings indicate the agreement wasn’t signed in a strictly professional context but rather as a private contract for a romantic relationship, similar to a nuptial agreement.
Lawmakers emphasized in the Speak Out Act’s preamble and during discussions about the law that NDAs that have curbed the ability of victims of sexual assault and harassment to speak about their workplace experiences.
But the statute’s language didn’t specify the context under which any nondisclosure contract must be signed to become unenforceable, attorneys said.
Given the law’s vague language, a private contract derived from a romantic relationship also would fall under that umbrella, said labor and employment attorney Chris Anulewicz of Balch & Bingham LLP in Atlanta.
“The intention of the legislation is to make NDAs like this, and in the context of employment or otherwise, be non-enforceable,” said Anulewicz. “We’ve had the #MeToo movement and a lot of other allegations where women were forced into silence because of NDAs, and Congress said, as a matter of public policy, that we don’t want that to be the case anymore.”
The Speak Out Act could be interpreted to apply only to NDAs between employers and employees or independent contractors, and those between providers of goods and services and consumers since those are the contexts referred to in its preamble, said Rachel Arnow-Richman, a professor of labor and employment law at the University of Florida.
“A party seeking to enforce an NDA outside these specific professional contexts could argue that the agreement doesn’t fall within this statute at all,” said Arnow-Richman.
The Woods legal team has said in court filings that the dispute should go to arbitration, according to their agreement. But in her March complaint, Herman said the agreement is nonenforceable because of the recent law even though she hasn’t yet made a sexual assault allegation.
Adam F. Sloustcher, a California employment attorney with Fisher Phillips, said the Golden State is starting to see sexual assault or sexual harassment claims as part of efforts to void nondisclosure agreements in wrongful termination and workplace discrimination cases. But the Woods case is novel because it isn’t a workplace-related contract, and Herman hasn’t made a claim of sexual nature.
“The filing suggests that she has information that could violate the NDA, and wants the NDA declared void because of the statute saying that an NDA preventing the sharing of information to support sexual assault or sexual harassment claims is illegal,” said Sloustcher, who is co-chair of sports practice at Fisher Phillips. “She’s not yet bringing the claims or allegations that she has, but she kind of is implicitly.”
Sloustcher said courts may decide to let the sexual harassment or sexual assault allegation go to court separately, and the other disputes be arbitrated in cases with multiple claims.
Herman’s team is being cautious so they don’t violate the agreement, but they ultimately must make some type of sexual misconduct claim if they want to void the NDA, Anulewicz said.
“When you’re making these types of allegations in court, you are going to have to show the court what it is that you’re talking about,” he said. “Whether or not those allegations ultimately go public, it’s something for the court to decide but they’re gonna have to show that. Don’t show it or don’t plead it and they’re going to be out of luck.”
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