How Much Does Brett Favre Case Reveal?

by Dennis J. Merley

The “will he or won’t he” retirement saga of Minnesota Vikings quarterback Brett Favre has been a source of speculation and a modest degree of amusement in the sports world. His more recent “did he or didn’t he” events, however, raise serious issues that HR professionals and employment lawyers know all too well.

For those who have not yet heard, Favre allegedly left sexually oriented voice mails for a female sports reporter while playing the 2008 football season with the New York Jets. It is also alleged that he sent the same reporter pictures of a certain part of his anatomy. National Football League Commissioner Roger Goodell is now huddling with his advisers to determine what actions might be taken. Depending on what play Goodell decides to call, this might be the one forward pass that Favre wishes had actually been intercepted.

Because the reporter, Jenn Sterger, was a sideline reporter employed by the Jets when the messages were sent, we could see this matter evolving into a civil claim of sexual harassment. After all, Sterger is alleging unwelcome sexual attention from a Jets employee. Such a claim might depend on what Jets management knew about the matter, if anything, at the time and whether Sterger could still meet the relatively short statute of limitations that applies to harassment claims.

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Sacking QB’s job performance
The Vikings also face serious questions. Favre’s on-field performance last Monday night (ironically against the Jets) was at best uninspired in his first game after the allegations were revealed to the public. Like any employer, the team has to wonder how to approach a key performer whose off-duty behavior may be affecting his performance at work.

Even if the employee is able to maintain his focus, the employer still has to consider whether the off-duty conduct is a distraction to other employees and whether it might be impeding the company’s ability to meet performance and production expectations. In this case, the Vikings may need to figure this out quickly since another loss or two in games they might otherwise win could undermine the success of their entire 2010 product.

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Blitzing the company brand
Perhaps the biggest issue the team faces is the impact that Favre’s behavior could have on the company brand. For quite some time, the Vikings had a distinctly poor public image because of a string of players arrested for driving while intoxicated and weapons charges and other unsavory activities such as a very public sex scandal during a team boating party. New team owners have tried to instill a stronger code of ethical behavior throughout the organization in the interests of a more wholesome corporate identity, a more successful product, and hopefully greater support for public funding of a new stadium.

Favre’s hiring was their most high-profile move in this regard since his image is that of an icon within the game and a solid citizen and family man off the field. The owners have to wonder whether he has fumbled away their chances of success in their drive to achieve those corporate goals.

The late John Wooden, legendary UCLA basketball coach, once said that sports don’t build character; they reveal it. The character of Favre’s employer, the Minnesota Vikings, may very well come to light in this matter.

Will the Vikings stand by an embattled employee, or will they conclude that the employee’s circumstances are too great a distraction to the rest of his coworkers? If the allegations are true, how will the team balance its interest in presenting a certain image with the goal of delivering a successful product? How the team responds to Favre will most certainly reveal the Minnesota Vikings’ character.

Dennis J. Merley is the editor of Minnesota Employment Law Letter and an employment law attorney with Felhaber, Larson, Fenlon and Vogt, P.A., in Minneapolis. For this article’s purposes, though, you should know that he was born and raised in Chicago and is a lifelong Bears fan. Nevertheless, he is proud of his ability to offer objective observations on difficult situations that develop when employment law and the sports world collide, as they often do. In April 2010, he explained how to “Learn good practices from Minnesota’s sports superstars” featuring situations involving Joe Mauer, Al Jefferson, Adrian Peterson, and, of course, Favre.