Now that the NFL has failed in its silver-bullet attempt to move former Raiders coach Jon Gruden’s lawsuit to arbitration, the NFL is grasping for another silver bullet.
As explained by Eriq Gardner of Puck, the NFL seeks the dismissal of Gruden’s lawsuit under Nevada’s anti-SLAPP statute.
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SLAPP means Strategic Lawsuits Against Public Participation. Anti-SLAPP laws give defendants a quick and easy resolution to baseless lawsuits filed by big-money interests that seek to intimidate critics by forcing them to incur significant legal fees.
Nevada’s anti-SLAPP law protects “[a] person who engages in a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern.”
So, basically, the NFL is saying that the leak of confidential documents harvested during the investigation of the Washington franchise was an exercise in free speech in direct connection with an issue of public concern.
While the law in many situations allows alternative defenses to be advanced in civil litigation, it’s very hard to reconcile the notion that the lawsuit should be dismissed because the NFL was vindicating the public interest by leaking the emails with the notion that the NFL didn’t leak the emails. Then again, the discovery process inevitably will show that someone connected to the NFL or the Washington franchise leaked the emails.
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As PFT has consistently reported since Gruden was forced to resign following two waves of leaks of emails he sent while working for ESPN, a very small universe of individuals had access to the emails. One of those persons leaked the emails.
By throwing an anti-SLAPP Hail Mary, the NFL hopes to short-circuit the effort to reveal who leaked the emails, while also preventing Gruden from proving that the league intentionally interfered with his current and future business relationships by forcing him out as head coach of the Raiders and impeding his future employment efforts.
The key to an anti-SLAPP motion is proving that the exercise of free speech was in “direct connection with an issue of public concern.” If the NFL was advancing an issue of public concern, why leak the emails five weeks into the 2021 NFL season? Why leak them at all? Why not just release them directly?
The timing of the leak is critical, in our view. As PFT has consistently reported, the NFL knew about the Gruden emails in June of 2021. If this was an exercise in advancing a public concern, the NFL should have disclosed the emails then, allowing the Raiders to hire a full-season replacement. Alternatively, the NFL should have waited until after the 2021 season ended.
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Ideally, the NFL shouldn’t have leaked the emails at all. While investigating the Washington franchise, the NFL stumbled into dirt on Gruden that had been hiding in plain sight in the team’s collection of sent and received emails. Someone correctly realized that leaking the emails would result in Gruden’s termination or resignation.
In this specific case, the leaker tried initially to force Gruden out with a leak to the Wall Street Journal. When that didn’t do the trick, a leak was made to the New York Times. At that point, Gruden walked away.
Here’s what the NFL’s effort to wrap itself in the First Amendment is missing. Disclosing the emails during the 2021 season undermined the integrity of the entire season by forcing one of the 32 franchises to pivot on the fly to an interim head coach.
And while Rich Bisaccia did an admirable job after Gruden left (hindsight shows Bisaccia should have gotten the permanent gig after taking the Raiders to the playoffs), how good could the Raiders have been that year if this supposed effort to advance a public concern hadn’t kneecapped the Raiders?
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Without Gruden, the Raiders nearly beat the Bengals in the wild-card round. And the Bengals nearly won the Super Bowl. With Gruden, what could the Raiders have done? We’ll never know, because someone intentionally pulled the plug on the Raiders’ ability to finish the season with their chosen coach.
Setting aside the details, every NFL fan should be upset that someone saw fit to tinker with competitive balance by forcing a team to change coaches during a season. (Raiders fans in particular should be livid.)
This wasn’t some effort by the NFL to engage in journalism as to itself, exposing things that the league would have preferred to keep quiet. This was an effort to weaponize confidential internal documents against an NFL head coach during an NFL season.
The real issue isn’t the content of the confidential investigative materials. It’s the motivation for the disclosure — and the timing of it.
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As Gardner notes, the trial court judge has ruled in Gruden’s favor. The NFL is trying to get the Nevada Supreme Court to overturn that decision.
Meanwhile, consideration of the merits of the case continues to be delayed. And the comments made last week by Judge Valerie Caproni regarding the NFL’s handling of the Brian Flores case apply with equal force to the NFL’s effort to delay the litigation of Gruden’s case:
“This case continues to linger at the starting block. Or, to use a more fitting metaphor, this case continues to linger as the teams mill about in the players’ tunnels.”
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