Has NFL restricted the use of NDAs?

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The NDA dynamic continues to hover over the NFL.

Non-disclosure agreements, signed by current or former employees who receive severance payment upon termination and/or a settlement (in lieu of litigation) for allegations of workplace misconduct, help organizations keep secret both the specifics of the actual or alleged behavior and the amount of money that changed hands. Private companies use them all the time. Public entities can’t, given state and federal Freedom of Information Acts.

The NFL consists of private businesses that have become public trusts, especially to the extent that they rely on public money for the construction and renovation of stadiums. But the NFL’s teams surely have used NDAs as routinely as private businesses do. The situation came previously to a head in connection with the events that forced Panthers founder Jerry Richardson to sell the team.

The league hired outside counsel Mary Jo White to investigate the situation, and her recommendations included “[a] specific prohibition of using Non-Disclosure Agreements to limit reporting of potential violations or cooperation in League investigations under the Personal Conduct Policy.”

So were those recommendations adopted? No one outside the league office knows. Charles Robinson of Yahoo Sports has twice posed the question to the league, and the league did not respond. According to Robinson, multiple team employees said that they have not received any information about a change in procedures since White made her recommendations.

It’s become an issue as it relates to the NFL’s Washington scandal, in which 15 former female employees allege that they have suffered sexual harassment but 14 would not allow their names to be used, due to concerns over the potential violation of NDAs. Will these former employees speak to the outside lawyer hired by Washington? Will they believe based on the NDAs that they should refuse to cooperate?

NDAs should never be used to prevent the NFL from getting information that it needs. If White’s recommendations weren’t adopted, it could be difficult for Washington’s lawyer or the NFL to get anything from the former Washington employees.

Actually, the NDAs should contain an express obligation to speak to team or league lawyers who may eventually be investigating a given situation. Since the league and its teams have no jurisdiction over former employees, investigations easily can be frustrated if former employees refuse to speak. By making cooperation a condition of the payment received, the former employees would have to answer questions posted by an official investigation.

That’s ultimately what the league needs to secure: The ability to get to the bottom of any and all allegations that need to be investigated.
 
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