NFL Network response to Jami Cantor’s claims shows disconnect between lawyers and P.R.

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Deadspin has posted the full content of the document filed by the NFL in connection with the claim of sexual harassment made by former NFL Network employee Jami Cantor. As expected, the claim made by the league that Cantor consented to the behavior about which she complains flows from the standard, cookie-cutter approach to preparing a formal “answer” to a civil complaint.

The problem for the NFL is that there was no apparent coordination between the lawyers at Proskauer Rose, who did a cut-and-paste-and-revise based on past answers filed for past clients in past lawsuits, and the NFL’s public relations function.

Here’s how it works. Law firms maintain sophisticated internal databases that allow all prior documents prepared in all prior cases to be searched and retrieved. When a junior associate (typically, someone a year or two out of law school) receives the assignment to prepare the first draft of an answer to a complaint in a case dealing with allegations of workplace misconduct, the young lawyer finds an answer from a similar case and uses that past document as the template for the new document.

In addition to responding to the specific allegations made by Cantor (the NFL’s answer contains a blanket denial of anything and everything), the answer to the complaint operates as a placeholder for so-called “affirmative defenses” that may or may not eventually be supported by the facts developed once the lawyers begin studying relevant documents and grilling knowledgeable witnesses. The goal in listing affirmative defenses isn’t to be accurate but to be comprehensive, listing anything and everything that could possibly emerge in any way as the basis for the handful of defenses that the defendant relies on at trial.

That’s why the NFL’s answer has 46 different defenses. Scroll through the document. They’re all there, nearly 50 tiny flags planted in the legal ground, allowing the NFL to proceed with the case knowing that any defense that ultimately may be justified by the facts has been preserved in the extended laundry list of defenses articulated at the outset of the case.

It happens all the time. It’s good, prudent lawyering. And, in 99.99 percent of all cases, none of the defenses listed in the answer create a separate problem for the client.

In this case, however, the Seventeenth Defense does. “The alleged conduct of the Defendants complained of in the Complaint was approved, consented to, authorized, and/or ratified by Plaintiff through her actions, omissions, and course of conduct; accordingly, the Complaint and each purported cause of action therein are barred,” the answer declares on page 4.

It’s an appropriate legal defense, given that sexual words and deeds among co-workers can’t become sexual harassment in the eyes of the law if the employee who complains about it later wasn’t actually offended by it at the time. It’s a poor P.R. strategy, however, given the perception that the NFL is blaming the victim.

Given the broader climate in which this allegation against Cantor is being made, it’s a horrible look for the league to suggest that, if there was inappropriate conduct in the workplace, she essentially was “asking for it.” Although this doesn’t mean the NFL should have completely waived the potential defense of consent, the NFL’s lawyers and its P.R. professionals should have worked together to create a strategy that would have allowed the defense to be preserved without giving the media a plausible basis for accusing the NFL of being tone deaf, at best.

And that’s ultimately the problem with cookie-cutter lawyering. The lawyers, who are merely looking to check off the current item on the daily to-do list and move on to the next thing, get numb to the parade of largely meaningless documents that roll down the assembly line. Sometimes, however, someone needs to press pause and realize that there may be words and phrases in the perfunctory legal filings that will result in all sorts of unfortunate words and phrases being directed against the client by the media.

Clearly, that didn’t happen in the NFL’s first legal filing in response to Jami Cantor’s claims.

22 responses to “NFL Network response to Jami Cantor’s claims shows disconnect between lawyers and P.R.

  1. The NFL made their bed. Whether they are saving themselves or making matters worse remains to be seen. My take at the moment suspects the latter. But all the rest of us can do is spectate while this plays out.

  2. One thing that jumps out at me as surprising. If a law firm has a client as big as the NFL, would they not have a process in place where all documents undergo a thorough senior review before being sent out? It just strikes me as a good precaution for protecting a relationship so lucrative.

  3. Given the long and extensive list of lies that has come out of the league office under Goodell, I wouldn’t believe a single one of their defenses.

  4. Now would be a good time for the league to launch another multi-million dollar investigation into whether Brady’s shoelaces are in fact regulation length…

    Look a squirrel!!! That’s not a history of covering up and minimizing concussions, it’s a deflated football!

  5. Excellent analysis. One important addition: Many affirmative defenses have to be asserted in the initial response to a Complaint or those defenses are deemed waived. That situation could be difficult to explain from a PR standpoint. However, the NFL should have released some form of statement accompanying the filing, if only to give their friendly media some talking points.

  6. Can’t the NFL ever do anything quietly? Didn’t Goodell learn anything during his time in the PR department?

  7. pelatin says:
    January 26, 2018 at 10:57 am

    One thing that jumps out at me as surprising. If a law firm has a client as big as the NFL, would they not have a process in place where all documents undergo a thorough senior review before being sent out? It just strikes me as a good precaution for protecting a relationship so lucrative.
    ——————–

    Like they did with the “independent” Wells Report?

  8. Consent or no consent…The work place is not an environment that should condone or allow such behavior, by any party, period.

  9. The real question is whether it is wise to give up what may be a valid and helpful defense just for PR purposes. It may very well be that the NFL and the law firm chose to retain the defense over looking bad. However, I suppose the language could have been structured to make it less pressworthy.

  10. It is tone-deaf, but it strikes me as the network essentially daring the defendant to go into the details, implying that it can share things that won’t look good for her.

    Presumably, the goal of all that is to encourage a quick and relatively modest settlement, and to discourage the defendant’s team from running wild with this from a PR standpoint.

    In short, taking a minor risk that looks not so good to help prevent a much bigger PR quagmire. Good idea? Who knows.

  11. Or, Goodell is trying to cover this up so it doesn’t appear they’ve been looking the other way for years and years, similar how he got caught in a federal court lying over and over again.

  12. It kind of depends on what information the NFL has. If the league has texts from those accused that show their behavior was encouraged in some way, then they have the right to reference that in their brief.

    I think a long overdue problem has been brought to light. But both the accuser and the accused have rights. If there is evidence that some of this was consensual, I see reference to that as ‘defending the accused’ not ‘blaming the victim’. The process is about getting to the truth, wherever that leads.

  13. Maybe, just maybe the NFL has a copy of all the texts that she sent back to these guys and that is how they arrived at the “consent” defense. As usual, the NFL is the bad guy here when you have no idea whether they have information that demonstrates her complicity in the events and is now just a bitter former employee. Maybe they don’t but the length of time for the response indicates that they likely have some idea. In the current environment one with an ounce of common sense would think that they would tread softly and their immediate suspension of the parties involved demonstrate that they took it seriously.

  14. I mean, anyone who uses some critical thinking and understands how due process works would understand that a lawyer who chose not to include such a defense wouldn’t be doing their job. Today, people’s feelings about a few words in a meaningful document have more power amongst the chattering class than the basic tenets of a constitutional democracy.

  15. Good analysis, but there is a partner at Proskauer Rose, who probably has an annual income of 7 figures, who is responsible for what his client submits to the court and not a second or third year associate who did the first draft. The PR nightmare is on him, not the associate.

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