Much has been written and said about so-called Non-Disclosure Agreements in recent months, primarily in the realm of presidential politics. But it was the existence (and violation) of multiple NDAs that directly contributed to the decision of Panthers founder Jerry Richardson to sell the team. And it’s possible that NDAs could soon have limited use by NFL franchises.
In Thursday afternoon’s hey-its-not-Friday-so-the-media-can’t-call-it-a-bad-news-dump announcement that Richardson will surrender $2.75 million of his multi-billion-dollar windfall for selling the team as a fine, the Commissioner points out that not-really-independent investigator Mary Jo White recommends a prohibition against the future use of NDAs “to limit reporting of potential violations or cooperation in League investigations under the Personal Conduct Policy.”
In other words, civil settlement agreements between teams and current or former employees may still contain confidentiality provisions, like most settlement agreements do. But the NFL will require that exceptions be recognized to: (1) allow the team to report the incident giving rise to the settlement to the league office; and (2) permit the current or former employee to cooperate with an NFL investigation.
Frankly, there should be no need for a prohibition on the use of NDAs as it relates to the reporting of an incident because the team should report the incident well before it becomes the subject of a signed and sealed confidentiality agreement. The Personal Conduct Policy requires immediate reporting of any allegations that, if true, would result in a violation. So if the settlement agreement with the NDA targets allegations that, if true, would constitute a violation of the Personal Conduct Policy, the disclosure to the league office should be made at the moment the team first becomes aware of the allegation of workplace misconduct.
That’s the ultimate problem in this specific case. Richardson had current or former employees threaten litigation regarding alleged workplace misconduct, and he settled the claims without advising the league office of the allegations. And if the recipients of the settlement proceeds hadn’t violated the NDAs, no one would have ever known.
In big business, that’s hardly an uncommon practice. From the moment the Richardson story first broke, a fair question emerged regarding the extent to which other owners or franchises have entered over the years into similar agreements in order to resolve claims that could have resulted in litigation in open court.
Like the NFL did with the Saints’ bounty scandal (which first introduced us to not-so-independent investigator Mary Jo White), the NFL apparently has opted to fill the rabbit hole with cement in lieu of exploring how many of the other 31 rabbits are living in there. Chances are at least one or two (or more) are scurrying around down there, hoping not to be found.