If NFL wants to curb abuse, it needs to ban non-disclosure agreements in cases of sexual harassment and discrimination
Nearly two years ago, in the wake of the NFL’s probe into sexual harassment and discrimination claims against then-Carolina Panthers owner Jerry Richardson, independent investigator Mary Jo White presented commissioner Roger Goodell with a set of recommendations to help root out workplace abuses. Layered inside them, White targeted a tool that Richardson employed to buy silence and shield a rotting culture from the league and general public.
Non-disclosure agreements.
It was one of the dirty little tools the public became very familiar with during the #MeToo era, getting exposed multiple times in stories that detailed abuses in Hollywood, corporate America, politics, and as it turned out, inside the NFL’s Panthers. It was a fact that White laid bare in a report to Goodell, where she spelled out how Richardson had paid out monies to obtain non-disclosure agreements and hid those deals from the league. In the process, Richardson shielded his own behavior from the NFL’s personal conduct policy.
In the wake of that reality, White made a proposition to the league, a call to create “[a] specific prohibition of using Non-Disclosure Agreements to limit reporting of potential violations or cooperation in League investigations under the Personal Conduct Policy.”
Simmered down, White told Goodell that the NFL should limit the scope of NDAs to hide abuses. She appeared to pull up short of a total ban, instead suggesting something more nuanced, allowing teams to continue with confidentiality settlements but putting franchises into the position of having to report the NDAs to the league and also free the parties involved to divulge details inside an NFL investigation.
On the heels of the recommendation, Goodell said it would be forwarded to the NFL’s conduct committee prior to the start of the 2018 season. What happened after that is unclear because the league has yet to reveal what action was adopted regarding NDAs and NFL teams in the wake of the Carolina mess.
Washington, Panthers wrapped up in 3 scandals
All of this is relevant now when absorbing a Washington Post story detailing sexual harassment claims by 15 separate women inside the Washington franchise — including the fact that multiple women told the media outlet they couldn’t speak publicly because of non-disclosure agreements. The franchise declined to release the women from their NDAs to speak publicly, according to the newspaper.
Yahoo Sports twice requested information on White’s recommendation and what the NFL ultimately did with it, and a league spokesman failed to respond to both messages. As of Tuesday, multiple senior-level executives in franchises have told Yahoo Sports that they have not gotten a change in guidance on the league’s use of NDAs since the close of White’s investigation in June 2018. That suggests the NFL made no changes with NDAs or that teams haven’t been broadly making senior-level employees aware of new personal-conduct policy legislation.
Whichever it may be, a troubling fact remains: Since 2018, two NFL franchises have continued to use NDAs in some fashion to hide sexual harassment claims inside the organizations. In the Panthers’ case, the use of the tool for concealment rose all the way to the team owner. In Washington’s case, the scope of the NDAs isn’t fully known because we don’t — and may never have — another independent league investigation to lean on. That’s concerning for a league that saw this same Washington franchise bury an allegedly slimy cheerleading calendar shoot scandal in 2018, an incident that was also partially obscured by confidentiality agreements cheerleaders signed when initially going to work for the team.
Why NFL should examine NDA policies
If all of this isn’t coming into focus by now, let’s go ahead and put the fine point on it.
Twice since 2018, the NFL has had stories arise about grotesque “cultures” inside of franchises that ended with allegations of workplace harassment or discrimination. Twice, non-disclosure agreements surfaced as a form of stifling information from being revealed to the public — and possibly the league in both cases. And twice, some form of external investigation will have been undertaken, first in the case of the league against Richardson and the Panthers in 2018, and now in the probe Washington will be commissioning into themselves (with still no word on whether the league will conduct its own investigation).
When the NFL is overseeing 32 billion-dollar corporations, having two of them run into serious harassment or discrimination problems isn’t great. When both of those corporations reached for the same tool to obfuscate their broken cultures, that’s an even bigger problem. Particularly when two years ago, an independent investigator called that into question.
Yet here we are, talking about NFL teams and non-disclosure agreements again. And lest anyone forget, we could also pull the Colin Kaepernick mess into this as well given that the league office itself stepped into a non-disclosure agreement at the settlement of that grievance, forever squashing the digital information and depositions of franchise owners and executives that took place in the case.
Taken in a wider scope, it’s not a great look for the league. Particularly in an era when harassment and discrimination claims mean more than ever in corporate America. And most especially for the NFL, whose teams drone on and on about having the right culture inside the building.
If the NFL wants to convince the general public that it’s doing the right things and taking a changing climate seriously, it’s probably best to do away with the legal remedies to silence voices when something goes sideways. If the league thinks it’s important to settle claims with money, that’s its prerogative — especially if the grievances could eventually lead to litigation. But employing non-disclosures in a fashion that hides a problem (and by nature, allows a problem to continue or get worse) is tantamount to an endorsement. And that goes for both the NFL’s teams and the league office that oversees them.
Given what happened in Carolina and what allegedly happened in Washington, there is little doubt that concealing these problems helped teams avoid embarrassment and protected the NFL’s image as well. And that puts Goodell and the rest of the NFL within a whiff of being silent partners with guys like Richardson and cultures like Washington.
Two years ago, Mary Jo White recommended the NFL take steps to distance that, or at least make it clear that the league wasn’t going to tolerate being kept in the dark when franchises stepped onto the wrong side of morality or ethics. Two years later, it’s time for the NFL to go further.
Prohibit club owners and their franchises’ officers from deploying non-disclosure settlements that dictate silence from victims. Create a rule that all agreements — whether driven by confidentiality, non-disparagement or non-cooperation — be on file with the league office. In the event that the covenant of transparency is broken at the senior levels of a team when it comes to harassment or discrimination, mandate an external investigation that becomes public. And make the outcome of that investigation grounds for divesting a franchise owner from a team.
Until the NFL does this, it will be a part of the culture problems that continue to exist inside it — not an observer and arbiter of them.
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