Last week, D.C. Attorney General Karl Racine announced a lawsuit against the Washington Commanders, owner Dan Snyder, the National Football League and NFL Commissioner Roger Goodell.
In that announcement, Racine recounted all of the problems and scandals that have plagued the organization for years and even decades. But his lawsuit against a team that’s based in Virginia and that plays in Maryland is a civil suit based on consumer-protection law, and one sports law attorney doesn’t seem to think the suit is as strong as Racine does.
“I was surprised that the attorney general tried to transform a workplace-misconduct issue into a deceptive and unfair trade practices lawsuit revolving around the sale of consumer goods or services,” said Daniel Wallach, who is also a legal analyst for The Athletic and the co-host of ConDetrimental, a sports law podcast.
“What are the consumer goods and services being purchased by customers and consumers in the District of Columbia? They’re buying sport entertainment.”
“They’re not buying or consuming or getting guaranteed the sanctity of the workplace environment,” Wallach continued.
“It seems to me that the real victims here are the victims of alleged sexual harassment and assault. They’re not the consumers in the District. Their grievance is probably about the overall management of the football team, but they’re not dealt with unfairly in connection with the sale or lease of consumer goods or services. The unfair trade practices have to be tethered to the purchase of goods by the public.”
But even though Wallach expects the District to lose the case, he said there’s reason to think that won’t happen as fast as the NFL or Commanders would prefer. And that’s because the judge assigned to the case, Heidi Pasichow, has tended to allow consumer-protection cases to move to trial and denied requests for dismissal from defendants in similar situations, Wallach said.
“She has generally allowed them to get past a motion to dismiss and allowed the parties to conduct discovery. For the attorney general, I think that’s the endgame here,” said Wallach.
Racine’s office has said that getting information from Beth Wilkinson’s investigation released to the public is part of his goal here.
“If Judge Pasichow allows this to get past a motion to dismiss and the attorney general can start taking depositions and request documents and discovery, he could certainly make a play for some of these documents and investigative materials,” said Wallach.
By making a motion to dismiss, the NFL would hope to avoid the spectacle of a deposition of Goodell sitting under oath and answering questions about the various investigations of the Commanders and Snyder that have been conducted.
“This judge has allowed claims like this to go forward in every reported decision that I was able to identify on. … I haven’t found one example where the judge stopped a [consumer-protection] case in its tracks at a motion-to-dismiss stage,” said Wallach.
But he also cautioned that if that happens, there’s still a chance it could be appealed to a higher court, though it’s only in rare exceptions that a court is willing to consider hearing arguments over a failure to dismiss. But he expects the NFL to do everything it can to achieve that.
“This is just another potential vulnerability not only for Dan Snyder but the National Football League,” explained Wallach. “If this goes to discovery, that’s like a loss for the NFL.
“Roger Goodell is not going to do very well when he’s put under oath to explain why he didn’t release the reports or findings of an investigation covering 20 years of a toxic workplace environment,” he added.
The parties involved have a scheduling conference scheduled for two days before the Super Bowl, which will likely provide a better idea as to how long everything will take to play out. But in the eyes of sports fans around D.C., just making public all of the information Racine seems determined to get in discovery may be more important than actually winning the case.
“I think ultimately this is a strong public relations lawsuit,” said Wallach. “Just the bringing of this lawsuit imposes added pressure on the National Football League and Dan Snyder.”