Sexual Harassment Is Illegal, Even in the NFL

On June 22, the House Committee on Oversight and Reform released a 29-page memo detailing its eight-month investigation into how the National Football League and the Washington Commanders football team handled claims of sexual harassment of the team’s female employees that came to light in 2018.

The committee found that after hiring Washington attorney Beth Wilkinson to conduct an investigation—later taken over by the NFL—Commanders owner Daniel Snyder and his legal team proceeded to conduct a “shadow investigation,” using private investigators to harass and intimidate witnesses. They even created a 100-page dossier to target victims, witnesses, and journalists who had shared “credible public accusations of harassment” against the team.

When employers engage in such egregious attempts to discredit accusers and shift the blame, jurors can punish them through sizable compensatory and punitive damage verdicts. The NFL and its individual teams are no different than any other workplace in the country. They may pay higher salaries and offer more perks, but they are subject to the same laws as every other US employer.

Targeting the Victims

Snyder was obligated to prevent sexual harassment by promptly investigating and taking corrective action, including termination, against perpetrators. Instead, he double-downed on that harassment by investigating the victims and engaging in adverse threats and intimidation.

Football is the nation’s most popular sport, pastime, and—wink wink—”boys will be boys.” That Snyder settled similar allegations in 2009 was an inconvenient coincidence for the league.

When questioned under oath, NFL Commissioner Roger Goodell said that he couldn’t recall having been informed of such allegations, despite the fact that the NFL’s general counsel Jeff Pash had been part of an extremely close relationship with Washington team management for more than a decade.

Pash was not only an integral part of Goodell’s team but also the person responsible for investigating illegal and improper activity within the NFL.

The NFL Is a Unique Entity

The NFL’s bylaws and constitution give Goodell authority to resolve disputes between owners, to impose discipline, and to establish policy. But for larger issues—such as, presumably, the Snyder controversy—he refers to the league’s executive committee. A decision to force the sale of a team requires a three-quarters vote, or 24 of the 32 team owners.

At the same time, each team is a separate employer with its own rules, procedures, and payroll and HR department. It is, however, expected to conform to NFL rules and policies and can face discipline for noncompliance. The relationship is not unlike that of fraternities on college campuses, where each fraternity must adhere to the policies and procedures of its national organization while also complying with the rules of its host campus.

Given Snyder’s history, should there not have been a clear NFL policy on sexual misconduct? Goodell implied as much when asked whether Snyder’s 2009 conduct, if substantiated, would violate the league’s policy.

“Yes, absolutely,” he responded. Regarding the 2018 allegations, he said, the NFL “would consider discipline if the results of the investigation warrant.”

But the NFL won’t release the results of its investigation, even with names and other identifying information concealed. How do you deter bad behavior when it is kept secret? If there is no disclosure, there can be no transparency.

When asked by Rep. Jamie Raskin (D-Md.) why it would “pay hundreds of thousands or millions of dollars to investigate sexual harassment in a toxic workplace environment” and then fail to publish its report, Goodell said that “redaction doesn’t always work in my world.” There were apparently no such qualms when the NFL published a report about sexual harassment at the Miami Dolphins in 2014.

What’s the Penalty?

Who will pay the price for Snyder’s alleged transgressions? Snyder may soon face his accusers in court, as sexual misconduct claims are no longer subject to mandatory arbitration. He might also confront roadblocks in his efforts to raise money for a new stadium. Ultimately, the other owners could force him to sell the team.

But the NFL should not get off scot-free. Despite Goodell’s words, the league’s hands are unclean. Its top law enforcement officer was not only conflicted in investigating and addressing bad behavior, he was allegedly complicit in the activity. At a minimum, the NFL must take proactive steps to prevent such conduct before new victims—from any of its teams—come forward.

The league cannot turn a blind eye to conduct that has been rampant for many years, not just in Snyder’s team but across multiple organizations. It must implement and enforce policies, procedures, and consequences that are known, understood, and enforced across all teams. It must establish a complaint procedure, conduct regular training, protect whistleblowers, and practice early intervention.

Until it does these things, the NFL should be considered a potential co-defendant. As an enabler, it should also be subject to legal claims by the victims whose lives were upended by the harassment and the subsequent intimidation conducted by Commanders owners and management.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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V. James DeSimone is a civil rights attorney at V. James DeSimone Law of Marina del Rey, Calif. He has practiced for 36 years representing those whose civil and constitutional rights are violated.