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NFL, Washington engage in alleged shell game to obstruct Congressional investigation

Mike Florio and Peter King break down the latest developments regarding new sexual harassment allegations directed at Washington owner Daniel Snyder.

A day after the House Committee on Oversight and Reform conducted a “hybrid roundtable” with former employees of the Washington Commanders, the two members of Congress who initiated the investigation regarding workplace issues in Washington and the league’s handling of them have suggested that the NFL is obstructing the probe.

An eight-page letter sent Friday by Representative Carolyn B. Maloney, Chairwoman of the Committee on Oversight and Reform, and Representative Raja Krishnamoorthi, Chairman of the Subcommittee on Economic and Consumer Policy, to Commissioner Roger Goodell demands that the findings from attorney Beth Wilkinson’s 10-month investigation be released. The letter explains that new documents obtained by the Committee raise “newfound concerns” over the independence of the Wilkinson investigation.

The facts get a little complicated. We’ll try to simplify it here. It won’t be easy.

Newly-released documents show that the NFL and Washington entered into a “Common Interest Agreement,” after the league took control of the Wilkinson investigation. The league and the team agreed to engage in a “joint legal strategy.” This is a typical arrangement when multiple otherwise distinct entities work together to defend themselves against litigation. The goal is to broaden the attorney-client privilege so that if, for example, Commissioner Roger Goodell and Commanders owner Dan Snyder have a conversation about advice given or information gathered by Wilkinson, neither the attorney-client privilege nor the “work product doctrine” will be waived. A waiver of either protection would allow the plaintiffs in any cases filed against the league or the team to get access to the substance of the communications.

For example, if Snyder were to text Goodell “I talked to Wilkinson and she thinks we’re screwed,” the Common Interest Agreement would pull that message within the attorney-client privilege. Without such an agreement, the message from Snyder to Goodell would be fair game.

The Common Interest Agreement shows that the investigation was not an independent exercise aimed at smoking out and putting a stop to wrongdoing, no matter the consequences. It was purely a legal maneuver, aimed at allowing the team and the league to create the impression that Wilkinson was turning over rocks and chasing leads while at all times securing full control over how she handled what she found, in the name of managing potential liability.

By its own terms, the Common Interest Agreement provides that Wilkinson would “conduct an independent investigation into allegations lodged against [the Commanders] of hostile workplace culture, including but not limited to, allegations of sexual harassment and bullying . . . and to provide legal advice and guidance in connection with the Investigation.” (Emphasis added.) Thus, Wilkinson was never hired to investigate the situation with the goal of creating a report that would be disseminated publicly, like Ted Wells’s Deflategate opus. She was hired to gauge the extent of the mess and to help the league and the team clean it up. Indeed, the Common Interest Agreement expressly refers to the fact that the league and the team has a “common legal interest in . . . the defense of reasonably anticipated litigation.”

The engagement letter sent by Wilkinson’s firm to the Commanders makes even more clear the fact that the firm wasn’t being hired to get to the bottom of a problem and solve it. Instead, the goal was to best position the team to defend itself against any and all litigation. The engagement letter expressly explains that “all material prepared and communications made by [the team] and its representatives in the course of the review are in anticipation of litigation and are privileged work product.”

In other words, Wilkinson wasn’t a finder. She was a fixer. She was, put simply, the Wolf.

The ultimate fix became creating no official paper trail at all, even though her firm’s engagement letter with the team expressly contemplated the creation of a “written report of its findings,” which would include recommendations for “any remedial measures” the team should take. In the end, there was no report.

Then came an alleged shell game. A magic trick. A subterfuge. The league, according to the February 4 letter to Goodell, withdrew from the Common Interest Agreement after Congress began its investigation in October 2021. Per the league, its withdrawal from the agreement has resulted in both the league and the team claiming that they can’t access or release documents to the Committee without the consent of the other party.

“By dissolving their common interest agreement and withholding consent, the parties may be attempting to create a legal limbo to stop the Committee from obtaining these key Wilkinson investigation documents,” Friday’s letter to Goodell asserts.

Compare that contention with Goodell’s past explanation regarding the basis for not producing materials publicly. Using the victims of Washington Commanders workplace misconduct as human shields, Goodell claimed that, because some requested anonymity in the investigation, none of the information can be disclosed. Not once has he pointed to the collapse of the Common Interest Agreement and the ensuing ability of the NFL and the Commanders as the basis for the decision to release no information.

Some have boiled today’s developments down to the notion that Snyder has veto power over the release of any report from Wilkinson. In our view, the materials released by the Committee create a much bigger problem for the league and the team. It shows that this wasn’t the kind of investigation commissioned by the league for past scandals involving primarily player misconduct. The Wilkinson investigation was about figuring out how deep the rabbit hole went, and about quickly plugging it.

The notion that no report was prepared to protect former Washington Commanders employees is a lie. The truth is that no report was prepared to protect the team and the league. Hopefully, Congress will keep pushing for the truth to be disclosed.