Four days ago, at the outset of the annual low tide for the NFL’s news cycle, the league managed to drop its conclusions regarding the investigation of the Washington Football Team. To protect its strategic decision to keep any and all details regarding the things learned by attorney Beth Wilkinson through interviews of more than 150 people over the course of a probe that racked up, we’re told, upwards of $7 million in legal fees, the NFL didn’t ask Wilkinson to prepare a written report of her findings.
Of all the stunning things about the NFL’s handling of the case, the decision to not ask Wilkinson to reduce the outcome of her efforts to writing becomes the most glaring and confounding. Lawyers who are commissioned to conduct major investigations always cap their efforts with a written report of their findings.
Well, almost always.
But even without a written report, the details of Wilkinson’s investigation exist somewhere. Surely, she and her staff didn’t refrain from taking notes during the many interviews. Possibly, Wilkinson’s team recorded some of the interviews, with audio and perhaps even video. Undoubtedly, communications among and between investigators and/or league officials became memorialized in emails, memos, text messages and the like, containing thoughts, impressions, conclusions, and other assessments of the accusations and their actual or perceived credibility.
So what happens with all that stuff? Lawyers don’t conduct investigations, report their findings verbally, and then promptly delete the materials from which the findings emerged. Maybe the lawyer in this case did just that, if directed to do so by those who commissioned the investigation, all under the clunky guise of ensuring full and complete confidentiality for those who came forward to speak but ultimately with the goal of hiding the truth.
That would be highly unlikely. With potential litigation against the team looming, Wilkinson risks a whole host of problems if she creates evidence that would support such claims and then expunges it. (Presumably, lawyers Lisa Banks and Debra Katz, who represent more than 40 former employees of the team, have advised Wilkinson in writing to preserve the evidence.)
Assuming the evidence still exists, how would any of it come to light? If/when former employees file lawsuits — and if those lawsuits don’t spark settlements before the facts come to light (e.g., the concussion cases) — the findings and the impressions will be revealed, in some form or fashion up to and including in open court. But litigation isn’t the only way to get to the bottom of what Wilkinson found and when/how she found it. If the situation attracts the attention of Congress, a committee hearing could be convened, with subpoenas issued and questions asked in a public setting. Likewise, an ambitious and creative prosecutor could impanel a grand jury and explore whether and to what extent the conduct that resulted in the general findings from Commissioner Roger Goodell rises to the level of one or more violations of applicable criminal laws.
Remember, Goodell concluded “that for many years the workplace environment at the Washington Football Team, both generally and particularly for women, was highly unprofessional,” that “[b]ullying and intimidation frequently took place and many described the culture as one of fear, and numerous female employees reported having experienced sexual harassment and a general lack of respect in the workplace,” that “[o]wnership and senior management paid little or no attention to these issues,” and that “senior executives engaged in inappropriate conduct themselves, including use of demeaning language and public embarrassment.”
What’s the line between “highly unprofessional” behavior, “bullying and intimidation,” a culture of “fear,” sexual harassment, demeaning language, public embarrassment and criminal liability? Without knowing the facts, it’s impossible to know.
Thus, whether through civil litigation, Congressional curiosity, criminal prosecution, or some combination of the three, the league’s effort to keep the facts of the WFT investigation secret may not yet have succeeded. Unless, of course, someone already has ordered the deletion of the various forms of evidence containing the many facts that Beth Wilkinson and her team collected.