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Legal Intelligencer: Internal Investigations in the NFL: Lessons for Organizations Large and Small

For practitioners, these Daniel Snyder events provide helpful tips relating to how organizations both large and small should conduct internal investigations.

In the January 20, 2022 edition of The Legal Intelligencer, Edward T. Kang of Kang Haggerty co-authored “Internal Investigations in the NFL: Lessons for Organizations Large and Small.

Daniel Snyder, the embattled owner of the Washington Football Team, has been in the news again recently for all the wrong reasons. No stranger to scandal, Snyder has now been accused of interfering with the 2021 investigation into the workplace environment of his organization. This is just another in a long list of controversies Snyder has found himself embroiled in, which include suing financially distressed season ticket holders during the Great Recession, banning fans from bringing signs to FedEx Field, and rebranding his franchise after its former namesake was retired. This, coupled with Washington’s lack of success during his tenure, has led some to label him the worst owner in all of professional sports.

The Washington Post interviewed me in July 2020 to get my take on “inherent question looms over the Washington NFL team’s investigation of its workplace culture: If owner Daniel Snyder is paying the law firm tasked with inspecting his franchise, how can the ensuing report be considered independent, as Snyder insists it will be?” Just last month, the Post reported Snyder used a bribe, intimidation and private investigators to thwart a probe into allegations of Washington Football Team workplace misconduct, Congress demanded answers from the NFL. I’ve addressed the subject matter in this civil litigation column twice before—in “When to Hire Outside Lawyers to Conduct an Internal Investigation” in November 2019 and revisiting the subject in April 2020. The recent report from the Post is a reminder that an internal investigation is more relevant now than ever.

Despite its past and present controversies, the Washington Football Team remains an incredibly valuable asset, with Forbes estimating it to be worth $3.5 billion in their most recent annual ranking of the world’s sports franchises. This is an appreciation of over $2.5 billion since Snyder bought the team in 1999, despite Washington’s mere two playoff wins in that same timespan. As an owner in one of the most high-profile sports leagues in the world, the recent accusations against Snyder have attracted considerable attention and comment. For practitioners, these Snyder events provide helpful tips relating to how organizations both large and small should conduct internal investigations.

The original allegations about the workplace environment of the Washington Football Team are too numerous and salacious to cover in this column. Suffice it to say that these accusations detail a culture of rampant misogyny which, at its most innocuous would be considered sexual harassment, and at its worst may rise to the level of criminal acts. To thoroughly investigate these allegations, the team hired Beth Wilkinson, a veteran litigator whose impressive resume ranges from the prosecution of the Oklahoma City bombers to lead outside counsel for the FTC’s investigation into Google. In doing so, the organization cleared the axiomatic first step of any legal inquiry: hire competent counsel. The NFL would later assume oversight of this probe in August 2020.

Wilkinson, an outside attorney with no past involvement in this matter, also possessed another critical characteristic for this type of investigation: independence. Too often when organizations find themselves in need of an internal investigation, they assume that this means they should rely on an investigator from the organization. But this is a pitfall that should be avoided, as internal personnel are likely to have conflicts of interest or predispositions of the parties and circumstances involved. Further, an internal investigator reporting to higher level executives implicates obvious power dynamic concerns. One can imagine the reticence a Washington Football Team employee might feel presenting a report critical of the organization to Snyder, a man famous for suing journalists who do just that.

To prevent such concerns, organizations should deemphasize the “internal” aspect of internal investigations and hire outside counsel to conduct the review. This independence is critical, not just to the actual integrity of the investigation, but also to its perceived integrity. Even if an organization did have the resources, personnel, and protections in place to generate a truly independent report using one of its own employees, the results of this investigation would inevitably be subject to more scrutiny than if the review were conducted by an outside party. If the Washington Football Team had conducted its own review that ultimately cleared the organization of any wrongdoing, these finding would obviously be treated with intense skepticism.

But independence is more than just a prerequisite for a qualified investigator, it is a continuing obligation on the part of all individuals involved, and this is where Snyder and his agents have erred. As first reported by The Washington Post in mid-December, Snyder and his attorneys attempted to prevent Wilkinson from interviewing a woman who had accused him of sexual assault relating to an alleged 2009 incident on his private plane. This was the same incident that Snyder and his organization had settled a year earlier for $1.6 million, while not admitting any wrongdoing.

Naturally, in conducting her comprehensive review of the organization, Wilkinson sought to interview Snyder’s accuser. To prevent this, Snyder and his attorneys allegedly offered this woman additional money to maintain her silence. Beyond this, Snyder is said to have hired private investigators to intimidate potential witnesses, a charge which he and his attorneys deny. At least two members of Congress, Rep. Carolyn Maloney of New York and Rep. Raja Krishnamoorthi of Illinois, have now called on the NFL to turn over all evidence it has relating to this alleged obstruction of the investigation. This is not the first time Congress has taken an interest in the investigation, as the House Committee on Oversight and Reform had sent a letter before requesting information on the probe. Commissioner Roger Goodell has promised to cooperate with this request.

Wilkinson did reportedly end up interviewing Snyder’s accuser, but soon found herself on the receiving end of a lawsuit seeking to bar any disclosure relating to the 2009 allegation. The plaintiff in this suit was David Donovan, the team’s former general counsel, who claims he brought the suit to defend his own reputation as the overseer of the original investigation. Many, including Wilkinson herself in court filings, have speculated that Donovan only brought his suit at the behest of someone else as an attempt to hinder her investigation.

Wilkinson did eventually present her findings to the NFL, although a formal report was never released. Goodell held a press conference in July of last year where he announced that Snyder would be fined $10 million and have to temporarily step back from the day-to-day operations of the franchise, although no specific factual findings were disclosed. Many complained that the vague two-paragraph “summary of findings” released by the league was essentially a press release, and that the very serious allegations against Snyder and his franchise should have been resolved with more transparency. This is a common public relations dilemma faced by organizations conducting such reviews, but this fallout can be avoided or at least mitigated if the proper steps are taken in advance.

As with many aspects of public relations, managing expectations is key. Organizations should define deliverables early on, so that the public and stakeholders are not blindsided by the eventual result. Part of the backlash against the NFL stems from the public’s surprise at the laconic statement issued after such a lengthy and detailed investigation. If the league had communicated more effectively early on that Wilkinson’s eventual findings would remain confidential, and given convincing reasons about it, it is likely that the backlash would be less severe.

Relatedly, the NFL could have done a much better job at explaining why the report needed to remain confidential, and likewise should have communicated this as early as possible. Total transparency is not always desirable, and there are sometimes good reasons to keep certain aspects of an investigation confidential. Often, certain witnesses may only agree to cooperate if their identity and testimony is not made public. Especially when dealing with sensitive issues like sexual harassment or potential criminal exposure, individuals with relevant information may not be willing to share their knowledge if they know that it will eventually be publicized. Further, if this confidentiality is not kept, future investigations may be compromised when witnesses no longer believe an organization’s promises of such.

This was, of course, not the league’s first foray into such investigations, as former Carolina Panthers owner Jerry Richardson was forced to sell the team in 2018 after various workplace allegations were made against him. The NFL had largely followed the same playbook in that investigation, hiring competent counsel, conducting a thorough investigation, and fining Richardson a multi-million dollar sum. While the NFL’s public statement regarding that investigation’s findings were comparably terse, the public outcry was noticeable muted compared to current controversy surrounding the Washington Football Team. This is most likely because of one key difference in the outcomes of these investigations, namely, that Richardson is no longer an NFL owner.

While all organizations regardless of size will likely find themselves in need of an internal investigation from time-to-time, the frequency and scope of these investigations scales considerably as an organization grows. And while these investigations serve many purposes, such as avoiding litigation and disciplining wrongdoers, large organizations in particular should consider the public relations impact of such investigations.

The NFL’s investigation into Snyder and Richardson offer lessons for organizations of any size. First, organizations should hire a competent and independent investigator. Second, they should ensure that this independence is never compromised and that the investigation is allowed to proceed unimpeded. Third, they should set expectations as early as possible, especially when it comes to transparency. Finally, they should follow the recommendations of the investigator, both with respect to remedying prior transgressions and preventing future ones.

While the NFL faced considerable scrutiny surrounding its previous investigation into Richardson, this scrutiny largely focused on the allegations themselves, not the NFL’s handling of the probe. With the more recent investigation into Snyder, and the newfound allegations that he may have tampered with it, the public seems less likely to accept a brief press release and monetary sanctions. Without greater transparency regarding the findings of this probe, the public has no way to reconcile whether it believes the punishment levied is sufficient. It is laudable that the NFL has demonstrated that no one, not even NFL owners, is exempt from investigation. And, if the most recent allegations against Daniel Snyder are true, it seems almost certain that he will face the same fate as Jerry Richardson.

Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at ekang@kanghaggerty.com.

Kang Haggerty associate Ryan Kirk served as co-author of this article.

Reprinted with permission from the January 20, 2022 edition of “The Legal Intelligencer” © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

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