[Editor's note: This item initially was posted on Saturday afternoon. But since it will be mentioned during NBC's Football Night in America, we've adjusted the time stamp so that those of you who take the bait set by Bob Costas will be able to find it easily.]
After months filled mainly with silence and one denial of the existence of settlement talks, Brett Favre’s camp has made its first substantive communication regarding the NFL’s ongoing investigation into the question of whether Favre violated the league’s Personal Conduct Policy in 2008 via his interactions with former Jets in-house sideline reporter Jenn Sterger.
With the Favre camp now convinced that litigation is inevitable, their message is simple: “Give us a lawsuit.”
So said Richard Gerakitis, an Atlanta-based employment lawyer who recently spoke extensively with PFT in the wake of Phil Reese’s Thursday appearance on The Dan Patrick Show, at which time Reese presented in frenetic detail many facts (some relevant, some not) as to the ongoing situation.
Reese’s comments, which can be heard at DanPatrick.com, carried three major points: (1) Reese said that Sterger won’t sue the league, the Jets, or Favre if the NFL suspends Favre and adopts a “program” aimed at preventing sexual harassment in the workplace; (2) Reese said that Sterger never complained to the Jets about Favre’s behavior; and (3) Reese implied that Sterger never communicated to Favre that she found his behavior, whatever it may have been, to be offensive or unwelcome.
The significance of Reese’s comments cannot be overstated. After his first point strongly suggested that a lawsuit will happen if a suspension doesn’t, his next two points potentially undermined any eventual lawsuit by tending to prove that Sterger wasn’t truly bothered by Favre’s actions, a key ingredient in proving sexual harassment based on the creation of what the law classifies a hostile work environment.
We suspected that the remarks would be enough to prompt a response from Favre’s camp. And they did.
“What is this?” Gerakitis told PFT regarding Reese’s comments. “Give us a lawsuit that enables us to find out what her allegations are. We can defend against a lawsuit. We can’t defend against the attempted manipulation of the media by trying to only give selective portions.”
Gerakitis, who has been working on this matter behind the scenes with Favre’s agent, Bus Cook, since September, believes that a lawsuit is inevitable, based on Reese’s remarks to Dan Patrick. “Reese sounds desperate,” Gerakitis said. “He sounded desperate on that interview with Dan Patrick. Reese spoke with such anxiousness I kept wondering, ‘He must see this cratering and he’s going to pull out all the stops.’”
Sterger’s lawyer, Joseph Conway, tells PFT that a decision to file suit has not yet been made.
“I can’t say definitively,” Conway said. “From day one, whether the public wants to believe it, the number one thing is to clear Jenn’s name. Although she hasn’t done anything wrong, there is a perception that she bears blame. We want justice done. We want the person to be punished, and we think that will vindicate Jenn.”
As to the punishment issue, both Conway and Reese backtracked from Reese’s suggestion to Dan Patrick that a suspension will be required. “If there’s a finding by the NFL in our favor and some kind of program put in place, we will not sue,” Conway said. “If not, the possibility exists. . . . [The NFL] would have remedies other than suspension. If they come out with a finding against [Favre], we’ll live with what the NFL thinks the right punishment is.”
So why did Reese tell Dan Patrick a suspension will be needed? “I was amped up, I was pissed off, I was tired, I hadn’t slept in three days, I felt like I had been jerked around all week,” Reese told PFT. “I was referring to a conversation with the league before the interview [of Sterger], where they said, ‘If you meet with us voluntarily and you present evidence that clearly shows [Favre] was in violation of the Personal Conduct Policy, this Commissioner holds all players accountable for their actions and takes a hard-line stance against sexual harassment and [Favre] would be suspended.’ I’m not calling for the NFL to say [to Favre], ‘You’re not playing on Sunday.’ I’m looking for an acknowledgment from the league that he did something wrong.” (Reese said that the representations were made by NFL V.P. of security Milt Ahlerich in a meeting that occurred on November 8, three days before the actual interview of Sterger by the league.)
Though Conway said upon his initial involvement in the case that he will be pursuing any legal remedies available to Sterger (he now brushes that off as standard lawyer talk, and that it didn’t actually reflect Sterger’s intentions or objectives), Conway says that Sterger only wants her name to be cleared.
“A finding of wrongdoing clears her name,” Conway said. “From when the story first came out, she has taken a beating in the media. She has lost her job. She’s unemployed. There’s a perception that she did something to cause this.”
Gerakitis doesn’t see the connection. Gerakitis explained that, in his view, “it makes no sense” for Sterger to try to clear her name via a finding of wrongdoing against Favre in light of the “path” she has chosen for her career, which has included posing for publications like Maxim and Playboy, working for the Jets in revealing clothing, and attending Florida State games wearing only a bra.
“It’s hard to imagine any judge wouldn’t look at her background and experience, her modeling career, her relationship with co-workers, her attire on the sidelines when she worked for the Jets,” Geratikis said. “I can’t think of many Falcons employees who dress that way when they’re a ‘sideline hostess.’ I can’t imagine Erin Andrews or Jill Arrington or Wendi Nix dressing that way.” Gerakitis also explained that a legal proceeding would entail a review of, for example, language used by Sterger in the workplace, which would help shed light on whether she truly was offended by or objected to any communications she may have received from Favre.
“She cannot show that she’s the victim of sexual harassment,” Gerakitis said. “She has no claim against the league, Brett, or the Jets.”
The frustration in the Favre camp flows from the fact that, within the confines of the NFL’s investigation, Favre has no ability to clear his own name, at least as it relates to the contention that he sexually harassed Sterger. Gerakitis believes that, with Reese publicly introducing the possibility of a lawsuit, the matter would best be resolved in the court system.
It’s hard to disagree with that. Though the league has shown in the context of the Ben Roethlisberger case a willingness to split from the legal process and make its own decisions, some matters simply can’t be resolved absent an ability to gather all facts, to cross-examine the parties, to compel any reluctant witnesses to testify, and to apply legal standards of evidence and proof to the question of whether a violation of the law occurred.
Sexual harassment is a serious charge. In our view, the league isn’t equipped to make a reliable decision that it did or didn’t happen. Regardless of whether Favre is guilty of sexual harassment, it’s now clear that the people working on his behalf would strongly prefer an opportunity to explore and present the case in a forum that allows for full, fair, and complete investigation of all potentially relevant facts and circumstances.
In the end, the question from a legal standpoint (and from the perspective of the Personal Conduct Policy) isn’t whether Favre sent inappropriate text messages or photos. The question is whether he engaged in severe or pervasive behavior of a sexual nature that Sterger found to be offensive and unwelcome. The circumstances call for a much more careful view of her actions — and inactions — than the NFL is able to provide.
We’ve got more information from both sides that we’ll be posting over the next 12 to 18 hours as to specific issues relating to the case. Already, this opening chapter has extended far beyond the ideal duration of an article written in this medium. Check back later tonight and tomorrow morning for further updates.