A baker’s dozen of bright, objects from the eleventh Sunday of the 2021 NFL season isn’t nearly enough to lessen the ongoing Congressional glare created by the WFT investigation.
Via the Wall Street Journal, the U.S. House Oversight and Reform Committee disputes the NFL’s contention that one or more legal privileges attach to documents and other information the Committee has requested from the league regarding the 10-month probe into workplace misconduct over a period of years at the franchise owned and operated by Daniel Snyder.
“The NFL has no valid basis to withhold the documents the Committee is seeking,” a spokesperson for the Committee recently told the Wall Street Journal. “We expect the League to honor the commitment made by the Commissioner and fully comply with the Committee’s requests.”
When responding to the initial inquiry from the Committee earlier this month, the league explained that issues pertaining to the attorney-client privilege and/or the work-product doctrine may apply to some of the materials generated by the investigation, including the notorious trove of 650,000 emails that supposedly came solely from items sent to and received by former WFT executive Bruce Allen.
It’s easy to throw around the names of fancy-sounding legal privileges and protections. But mere invocation of the labels doesn’t mean the protections actually apply. Here, attorney Beth Wilkinson initially was hired by the Washington Football Team to conduct the investigation. The NFL eventually commandeered the probe. Who is the “client” in a situation like this, and at what point if any do Wilkinson’s conclusions or recommendations become the kind of legal advice that cannot be invaded? Those are important questions that could potentially show that there are no actual issues of attorney-client privilege involving these materials.
The work-product doctrine is a more slippery concept, arising largely from the notion that documents and reports generated by a lawyer, while not specifically communicating advice to a client, may include mental impressions that should not be revealed. In this case, Wilkinson was instructed not to create a report, which surely would have embodied many different impressions as to the relevant facts and/or the credibility of witnesses. If Wilkinson and/or her staff have generated notes, memos, or other documents that assess whether and to what extent (for example) witnesses are, or aren’t, telling the truth, perhaps the work-product doctrine applies.
That said, neither privilege presumably applies to the Bruce Allen emails. The NFL already has conceded that these documents fall beyond the scope of the investigation. The question then becomes whether personal or private communications between Allen and others should be fair game. Frankly, they already became fair game for whoever leaked the emails sent by former Raiders coach Jon Gruden. There should be no reasonable expectation of privacy for any emails sent from or to an official Washington Football Team account. Everything should be disclosed to the Committee.
The league is trying to create the general impression that it’s cooperating with Congress while reserving the right to specifically refuse to produce certain things. As Cowboys owner Jerry Jones recently told Bob Costas, “Certainly in every way does the NFL want to cooperate with anything Congress asks of it there.”
Yes, “in every way.” Except in the way that may entail damaging documents being given to Congress.
In every way. As long as it’s the way we choose.
The push and pull will continue. Ultimately, the question becomes whether Congress simply decides to issue subpoenas and hold hearings.
Although only a fairly small percentage of these investigations conclude with a formal, public process, it’s been obvious for weeks that the league is trying to hide something potentially massive, either as it relates to the Washington Football Team, some other franchise, or the inner workings of the highest levels of the league office.
Already, enough bits and pieces have emerged to take out Gruden and to tarnish longtime NFL general counsel Jeff Pash. If Congress pushes hard enough, further disclosures could lead to more accountability for others who otherwise would like to avoid their reckoning.
