A Rough Season for Firms Involved in Internal Investigations–Defamation Cases Continue

footballThe Nationals are having a rough year–despite all those World Series predictions. Are you ready for some football?

I have posted before about a defamation suit against the investigative firm that looked into the Penn State sex abuse scandal. The trend continues.

The Miami Dolphins are in DC for the regular season opener against the Washington team.* Former Dolphins coach Jim Turner recently filed a defamation complaint against against Ted Wells and his firm, Paul Weiss. Paul Weiss investigated and issued a report about the Miami Dolphins bullying scandal a few years ago.

This situation is eerily similar to the Penn State case.

The Harassment Scandal

Back in 2013, former Dolphins player Richie Incognito reportedly bullied fellow player Jonathan Martin. The bullying had homophobic overtones, and the public response was surprisingly negative. So, the NFL—belatedly as usual—took steps to address the situation.

The NFL hired Ted Wells to conduct an investigation into the bullying incident. He released a report. Mr. Incognito was suspended and Coach Turner was fired. Like the allegations in the Penn State defamation case, Turner alleges that the NFL needed a scapegoat and knew what it wanted the report to say before the investigation even began.

The Report

Wells’ report concluded that Coach Turner not only acquiesced in the bullying of Mr. Martin, but participated in it himself. Turner denies this conduct in his complaint and blames the NFL for the report’s conclusions:

The accuracy of this story mattered little to the League. The NFL had to demonstrate abhorrence of such behavior and a commitment to preventing and punishing “workplace bullying” in order to preserve its public posture and Goodell’s legacy despite a history of ignoring such matters and showing, expressly and tacitly, a tolerance for “locker room” behavior. Having suffered multiple, highly publicized defeats in the courts, arbitrations and in the public forum, Goodell set out with a publicity-driven agenda and the League retained Defendants to assist with this agenda.

[By the way, Goodell is having a terrible, awful, no good, very bad time these days, isn’t he? The Ray Rice domestic violence issue was badly handled, his Deflategate punishment was reversed and the NFL’s failure to accept the proven danger of concussions is practically delusional.]

Turner alleges that Wells’ report was written to please the NFL, omitting major findings of the investigation. For example, Turner points to Martin’s history of anxiety and depression, as well as Martin’s own participation in team pranks, stating that Wells and his firm “knowingly and recklessly” failed to analyze these details in their report. What’s more, Turner indicates that favorable testimony from players was purposely ignored.

Coach Turner quotes a text message from Martin to Turner in his complaint. Turner alleges that the text shows that Martin not nearly as upset by the supposed bullying as the public believed:

Coach. I want to put out a statement. Believe me I do. This thing has become such a huge story somehow. But I’ve been advised not to… And I’m not supposed to text anyone either cuz last time I responded to a teammate (Richie) I was intentionally manipulated and the conversation was immediately forwarded to a Reporter.

Turner concludes that the Wells report omitted these types of relevant facts. As a result, the report cost him his job with the Dolphins as well as his ability to get a new job elsewhere. He states the following about the investigation in general:

Defendants’ decision not to analyze and simply to dismiss or ignore all of the foregoing evidence is intentional, reckless, negligent, inexcusable and demonstrates that the NFL and, by extension, Defendants, were not interested in the truth and were not acting out of a genuine goal of understanding the workplace environment. Instead, Defendants created a false and misleading picture of the situation and circumstances leading to Martin’s departure from the Team.

What’s Next?

Turner points out that Mr. Wells and Paul Weiss were, not surprisingly, compensated handsomely for the report. The NFL hired also them to investigate Deflategate. Apparently, Paul Weiss has brought in the tidy sum of $45 million from the NFL.

The firm’s income from these representations will likely outweigh the hassle of this lawsuit, and I have zero doubt that the engagement letter included a well-crafted indemnification provision to make sure the NFL is picking up the firm’s costs of defending the lawsuit. As I observed in reference to the Penn State case, indemnification clauses are crucial when you’re hired to handle this type of investigation, particularly if the client expects a written report at the end.

We all aren’t Ted Wells, but plenty of clients need investigations into allegations of harassment or other whistle-blower complaints. And it’s not just high-profile coaches who will consider themselves wronged by the negative conclusions in a report from your internal investigation. You need to be careful to lock down every fact in any written report and make sure your investigation drives the conclusions in the report, not the client’s agenda.

One last note: Coach Turner states in his complaint that he is not a public figure. This makes a difference in the burden of proof for a defamation case. If he’s not a public figure, then his burden of proof is a bit lower. That said, I find it hard to believe that the coach of an NFL team is not a public figure. Hasn’t this guy seen Ballers?

There have been reports of Tom Brady considering a similar lawsuit against the NFL for the Deflategate report. I’m sure his lawyers are trying to figure out how to name Roger Goodell personally as a defendant in that case.

*No, I don’t use the name of that team. That’s not because I’m a Ravens fan but because it’s flat-out offensive.

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