Dan and Roger are back in court, again
November 14, 2022
by Steve Thomas
Well, here we are again, folks. Dan Snyder is back in court, and this time he’s dragged the NFL and Roger Goodell with him. Last week, the District of Columbia filed a lawsuit against Pro-Football Inc., which is the entity that owns the Washington Redskins Washington Football Team Washington Commanders Washington franchise, as well as the National Football League, and both Dan Snyder and Roger Goodell individually. So you don’t have to, I read this lawsuit and will provide some thoughts and insight. You’re welcome.
Before we get started, please understand that I don’t represent you, the reader, or any party to this case, am not licensed to practice law in DC, and am not providing legal advice here. Also, I didn’t do any case law research into prior DC consumer protection cases, so this column shouldn’t be taken as a professional legal analysis. What I say here are my personal opinions about this particular situation after reading the petition.
Finally, I didn’t watch the press conference by the District of Columbia Attorney General, Karl Racine, so I can’t comment on that event.
Description of petition
The basic gist of the District of Columbia’s lawsuit, filed last week in the Civil Division of the DC Superior Court (i.e., local DC court, not federal), is that the defendants allegedly violated Title 28, Chapter 39 of the Code of the District of Columbia, which is the Consumer Protection Procedures Act. The argument being made is that the defendants (1) made misleading statements and failed to disclose material information regarding the investigation of the team by attorney Beth Wilkinson, and (2) misled the public as to Snyder’s knowledge of, and role in, creating the team’s “toxic and hostile” work environment. The District argues that these things are violation of the rights of the District consumers – i.e., the public – because these actions prevented those consumers from having full and accurate information while deciding whether to support the team by buying tickets and merchandise.
The petition itself contains a long narrative, more than 30 pages, of the history of the various allegations against Snyder and the team. There’s nothing here that’s new to those who’ve been paying attention, so I’m not going to give a detailed description of it all here – I’ve been over most of it in this space in previous columns and on both The Hog Sty and Its Just Business shows. The petition gives a narrative of the cheerleader allegations, including the claims by the Washington Post regarding illicit videos, the myriad claims of mistreatment of female employees, claims that Snyder brought female sex workers to parties while on trips with male and female team employees, Snyder’s alleged failure to take accountability for these actions, and other events.
The District makes the argument that District consumers should have been given accurate and truthful information by the defendants in order to better allow them to make decisions regarding the use of their time and money. The NFL and Goodell are in this case because the District alleges that the NFL and Goodell participated in this deception in pursuit of the greater goal of increased NFL revenue.
The relief sought in the petition includes “(a) Injunctive relief; (b) Equitable and declaratory relief; (c) Disgorgement, restitution, and damages; (d) civil penalties; (e) the District’s reasonable attorneys’ fees and costs; and (f) Such other and further relief as this Court deems appropriate based on the facts and applicable law.”
Analysis
I don’t think this is a particularly serious lawsuit. Don’t get me wrong; it’s a real lawsuit in that this is a legitimate petition filed in the DC Superior Court that claims actual violations of applicable law, and the District isn’t going to get sanctioned by bringing it. However, in my view, the consumer protection allegations are tenuous, and the relief sought ranges from highly unlikely to vague and undefined. The argument made by the District isn’t that the defendants are being deceptive with regard to the product being sold itself; akin to, for instance, an advertising campaign that claims that a particular food product contains an ingredient that it doesn’t have or when a manufacturer claims that use of a particular product will have an effect that won’t actually take place. That’s not the argument being made here; what the District argues is that the defendants, including the team, Snyder, the NFL, and Goodell, have been deceptive and/or outright lied about the status or activities going on behind the scenes of the public-facing product. The activities alleged didn’t actually have an impact on the products being sold themselves, i.e., tickets and merchandise. The team’s products have been and are the same, and there’s no question about what has been marketed to the public. The claims are all about the consumers’ perception of the organization itself. In my view, these consumer claims would be difficult to make to a jury absent the fact that it involves a very high-profile NFL team and its despised owner.
The petition is a bit deceptive in that it makes multiple references to the same allegations, but doesn’t make always clear that it’s referring to the same incident, potentially confusing readers. It’s hard to tell if this is just poor drafting or an intentional effort by the District.
The relief claimed by the District is tenuous and basic, at best. The District has simply thrown out a nonspecific list of the various forms of possible relief that could be granted by a court. First, the request for injunctive relief is likely dead in the water. An order for injunctive relief comes in the form of, first, a temporary restraining order, then a temporary injunction, then a permanent injunction. This type of order is intended to prevent irreparable harm for taking place, first during the pendency of the lawsuit, and then in the case of a permanent injunction, going forward. For example, a court may order a temporary restraining order to prevent construction from taking place if the plaintiff successfully claims that the construction is going to cause permanent damage if it goes forward. That’s a situation which calls for injunctive relief. In the case of consumer law, a TRO or injunction may be appropriate if the continued sale of a product is going to cause harm to people. Whatever one may think of Snyder and company, that’s not alleged here. The District knows this, which is why the petition doesn’t make a specific request for a TRO.
Theoretically, the court could order some sort of equitable relief after a trial, but it is undefined in the petition. Equitable relief in this case would probably be an order for the defendants to produce information and make it available to the public, but it could be some other order as well. The fact that a specific order is not listed says to me that the District will need to revise the petition at a later date if it gains any traction.
Finally, the request for disgorgement and restitution is a request for the court to order the defendants to repay money obtained as a result of the alleged consumer protection violations. It’s undefined here because the District hasn’t yet put any thought into what this number could possibly be, nor even how to define the parameters of such a financial disgorgement. What percentage of ticket and merchandise sales to District residents is the result of the hypothetical consumer protection violations? Some? All? None? Over what time period? Is it even realistically possible to determine how much merchandise has been sold to District consumers? There’d have to be extensive discovery of NFL financial records to even begin such a calculation. That’s a tough nut to crack and goes unstated for a reason.
In conclusion, I could be wrong here – as I said, I’m not licensed in DC and I also don’t practice consumer law – but I do not believe that this is a lawsuit intended to go to trial and obtain a judgment. In my view, the alleged consumer protection violations are tenuous at best, and damages would be hard to calculate. The fact that this lawsuit was filed by the District of Columbia Attorney General is the waning days of his term, and in the midst of word of a possible sale of the franchise by Snyder, seems like an indication that this lawsuit is more for publicity than for the pursuit of actual, tangible relief. I’d be surprised if this lawsuit exists beyond the hypothetical closing of a sale of the franchise.