Can Congress Compel the Commanders to Comply?

On February 4, 2022, Carolyn Maloney, the Chairwoman on the Committee of Oversight and Reform and Raja Krishnamoorthi, Chairman on the Subcommittee on Economic and Consumer Policy sent a letter to Roger Goodell, the NFL Commissioner. The letter stated that they were concerned that new evidence had arose which calls into question the independent internal investigation into the Washington Commanders and its ownership. They went on to state, “we urge you to end the League’s obstruction and immediately produce the findings from the internal investigation and other documents the Committee has requested.

For a full timeline of what happened in the Washington Commander’s investigation check out this timeline.

On July 16, 2020 the Commanders hired attorney Beth Wilkinson from the firm of Wilkinson Walsh LLP to investigate the claims regarding the team’s culture, policies and allegations of workplace misconduct. On August 31, 2020, the NFL announced that it was going to conduct the investigation started by Ms. Wilkinson. However, on September 8, 2020 both the Washington Commanders and the National Football League entered into an agreement called the Common Interest Agreement. This agreement states that the parties share a common interest in the integrity of the investigation and the anticipated litigation as well as a common interest in a joint legal strategy to ensure compliance with all laws. According to the agreement, “the Parties agree that WFT and NFL share common legal interest and that in furtherance of such interests the Parties have and will continue to share information and communication with Wilkinson Walsh and with each other in connection with the investigation. The Parties agree that the attorney-client privilege and other legal privileges, and/or the work product doctrine apply to such information and communications, and the Parties further agree that their exchange of any such information and communications does not constitute a waiver of any applicable confidentiality, privilege or work product claims that may otherwise be asserted as to information and communication exchanged. Furthermore, the Parties agree that neither WFT nor NFL shall have authority to waive any applicable privilege, doctrine or protection relating to any information and communication that are exchanged.”

The parties also agreed that Ms. Wilkinson would provide her findings of her investigation to the parties orally and not in a written report. However, originally according to the Committee, they have obtained a retainer agreement between Ms. Wilkinson and the Washington Commanders and the retainer stated that there would be a written report of her findings and recommendations. However, the NFL says there is no written report of Wilkinson’s inquiry and declined to release the full findings of the report.

The Committee on Oversight and Reform has been investigating the Washington Commanders toxic work environment, how the NFL handled the investigation, and the standards that the NFL enforces on all of its member clubs. The Committee started the investigation on July 1, 2021 after Ms. Wilkinson had announced that the work place was “highly unprofessional” and “that bullying and intimidation frequently took place” and that “senior executives engaged in inappropriate conduct themselves.”

The letter to Mr. Goodell states, “The NFL’s refusal to release the full findings of the investigation or any written report raises questions about the extent of the misconduct at the WFT, whether those responsible have been held accountable and whether the NFL has taken appropriate action to prevent similar conduct in the future.”

The Committee is mainly concerned that the Washington Commanders and its owner, Daniel Snyder, specifically tried to influence the investigation or tried to limit the disclosure of the findings and recommendations of Wilkinson’s report.

The Committee compares the Commanders refusal to release documents as a “stark departure from NFL’s prior practices regarding investigations of alleged misconduct.” The letter goes on to say that they released a 96-page report on the Ray Rice incident and a 243-page report on “DeflateGate”.

The report then goes to explain that the Committee has learned that the NFL withdrew from the common interest agreement with the Commanders. According to the report, “Now, after the NFL’s withdrawal from the agreement each party claims that absent the other’s consent, they cannot access the documents, let alone release them to the Committee.”

The Committee requested the documents to be produced by February 14, 2022. The question now is will either the Commanders or the NFL turn over the documents?

According to a Law360 article by Zachary Zagger, it is the Washington Commanders not the League who are refusing to share the Wilkinson Report with the Committee on Oversight and Reform. The Commanders will not provide the third party e-document vender who is holding the documents which means that the NFL or Wilkinson will not be able to access the documents. The third party vender is concerned about the Commanders or Dan Snyder suing them. According to Snyder’s attorney, Jordan Sieve, “The Commanders have never prevented the NFL from obtaining any non-privileged documents and will not do so in the future.”

What authority does Congress have to force the NFL and the Commanders to release the documents? Congress does have subpoena power however it is unclear if Congress will use this power. Congress has the power to demand witnesses and documents. The Supreme Court has recognized that Congress has this power. The Supreme Court has said that “Congress is not a law enforcement agency, and cannot investigate someone purely to expose wrongdoing or damaging information about them for political gain. A subpoena must potentially further some “legitimate legislative purpose.”

So what if the NFL and the Commanders ignore the subpoena request from Congress? Both entities could be held in contempt of Congress. The members of the congressional committee that issued the subpoena will hold a vote to determine if they should move forward with the contempt finding. If the majority vote yes, then another vote will be held by the entire chamber. If a majority of the House supports the contempt finding, then Congress has the power to enforce the subpoena. According to a Reuters article, “The Supreme Court said in 1821 that Congress has “inherent authority” to arrest and detain recalcitrant witnesses.” However, Congress using the authority to arrest and detain is very rare.  Also according to the Reuters article, “Congress can ask the U.S. attorney for the District of Columbia, a federal prosecutor, to bring criminal charges against a witness who refuses too appear.” A last option that Congress usually chooses to enforce its contempt findings is “getting its lawyers to bring a civil lawsuit asking a judge to rule that compliance is required.”

On February 9th, Roger Goodell spoke from Los Angeles to discuss Super Bowl LVI and other hot topics in the league. When Goodell was asked about the process to remove an owner he responded, “I do believe the clubs have the authority to remove an owner from the league. Ultimately, it’s a league vote, I believe.”

It will be very interesting to see if Congress uses its subpoena power, how the NFL and the Commanders respond to their requests, and how the League decides to deal with Snyder.



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