The U.S. House Committee on Oversight and Reform ratcheted up the pressure on the NFL on Friday, sending Commissioner Roger Goodell a letter that disclosed the existence of key documents regarding the investigation of the Washington Commanders workplace by attorney Beth Wilkinson. The NFL issued a public response on Friday afternoon.
“We have received the Committee’s letter,” NFL spokesman Brian McCarthy said. “We will review it and respond to them. We will continue to cooperate, as we have throughout the investigation. To date, we have shared nearly 80,000 pages of documents and made many others available for the Committee to review, in addition to responding to questions from the Committee, both in writing and in the course of numerous discussions. The Committee has requested many documents which are clearly protected by the attorney-client privilege or are attorney-work product. The League, and not the team, has and will determine which information it is in a position to produce.”
The problem is that, as shown by the letter engaging Wilkinson’s firm and the “Common Interest Agreement” between the league and the team, these privileges will empower the NFL and the Commanders to keep the most revealing materials secret. Any documents containing anything that can arguably be characterized as seeking or communicating legal advice will be withheld under the attorney-client privilege. Any documents reflecting the mental impressions of Wilkinson or her team (ideas, strategies, findings, conclusions, recommendations, for example) will be withheld under the work-product doctrine.
These privileges arise because the entire investigation was set up not to get to the truth and expose it, but to get to the truth and bury it. Wilkinson has hired to ultimately protect the interests of the NFL and the Commanders, sifting through facts and evidence and eventually advising the league and team on what to do about it. Not from the perspective of doing what it right or proper for the former employees or the public interest, but from the perspective of protecting the golden goose and its many eggs.
Attorneys Lisa Banks and Debra Katz, who represent more than 40 former employees of the team (including all who testified on Thursday), used far more aggressive language in a statement issued to Nicki Jhabvala of the Washington Post.
They said that, at the same time Goodell pledged “a fair and impartial investigation to our clients, and encourag[ed] them to put their fears of retaliation aside to provide evidence to investigators, [he] had already sold them out.” They said that the league and the team “entered into a backroom deal . . . to pursue a ‘joint legal strategy’ regarding the Wilkinson investigation.”
“He was an active co-conspirator with Dan Snyder and is now carrying his water in stonewalling Congress’ efforts to ensure accountability by making the results of the Wilkinson report public,” the attorney said. “Our clients and the public at large have been lied to and deceived by Commissioner Goodell. Over one hundred [Commanders] employees . . . participated in this investigation in good faith, based on their belief the findings would be made public, and that the exposure of [the Commanders] deeply ingrained culture of sexual harassment would lead to changes to better protect women in the workplace. Had they been told the truth . . . witness would likely not have come forward.”
That last part makes a lot of sense. Think of it this way. If a lawyer approaches you and says, “I’ve been asked to investigate years of wrongdoing in the hopes of finding out what happened, ensuring it will never happen again, and making the appropriate persons accountable,” you’d react one way. If a lawyer approaches you and says, “I’ve been asked to look into a mess that was made in the hopes of limiting liability to you and others, so please tell me what you know so that I can help the company best position itself to defend against your claims,” you’d react a much different way.
Goodell acted like the Wilkinson investigation was the former. In reality, it was the latter. Arguably, this is the single worst example of chicanery in which the league office has engaged over the last 20 years -- and there have been plenty of them.