The Oakland . . . I mean Los Angeles . . . I mean Oakland . . . I mean Las Vegas Raiders have a tradition of high-profile litigation second to no one in sports. Al Davis’ “just win, baby” philosophy spilled off the gridiron and into courtroom battles as well. So, it comes as little surprise that Jon Gruden is suing the NFL for publicly trashing his reputation and conspiring to wrongfully fire him as the Raiders’ head coach.
What is Gruden accused of as the lever to force his termination? Lots of inflammatory e-mails he wrote between 2011 and 2018, while he was an ESPN announcer and not affiliated with the NFL in any way. The e-mails were found during the league’s sexual harassment investigation into the team formerly known as the Washington Redskins.
Because Colin Kaepernick kneeled during the national anthem, Gruden opined in an e-mail to Washington’s former general manager, Bruce Allen, that “they should cut this f__k.” Gruden called NFL Player Association Executive Director DeMaurice Smith “rubber lips,” a term widely considered racist but that Gruden says was intended to imply only that the football union boss was a liar.
Gruden called NFL Commissioner Roger Goodell a “clueless anti football pussy.” He shared with Allen photos of topless Washington cheerleaders, among many other sexist comments and pictures. He made comments derogatory of female referees and against the change in the Redskins football name. He mocked the NFL’s concussion protocols and accused Goodell of pressuring teams to “hire queers.” The eight-year cache of Gruden e-mails undoubtedly yields many more cringeworthy quotes.
Gruden notes he wasn’t affiliated with the NFL when he wrote the e-mails but rather a football commentator. He also challenges the motivation of leaking the e-mails to the press, accusing the league of forcing his termination to divert attention from the sexual harassment coverup within the Washington football team.
While Gruden lost his 10-year, $100 million contract with the Raiders, Washington was fined $10 million for the harassment as described in the NFL’s July 1, 2021, press release:
For many years the workplace environment at the Washington Football Team, both generally and particularly for women, was highly unprofessional. Bullying and intimidation frequently took place, and many described the culture as one of fear, and numerous female employees reported having experienced sexual harassment and a general lack of respect in the workplace. Ownership and senior management paid little or no attention to these issues.
In some instances, senior executives engaged in inappropriate conduct themselves, including use of demeaning language and public embarrassment. This set the tone for the organization and led to key executives believing that disrespectful behavior and more serious misconduct was acceptable in the workplace. The problems were compounded by inadequate HR staff and practices and the absence of an effectively and consistently administered process for reporting or addressing employee complaints, as well as a widely reported fear of retaliation. When reports were made, they were generally not investigated and led to no meaningful discipline or other response.
While the NFL leaked the Gruden e-mails, which were found during but have little direct bearing on the investigation, the league confirmed it would say nothing more about its findings of harassment in the Washington football team organization and wouldn’t issue or publish a report: “When you make a promise to protect the anonymity, to make sure that we get the right information, you need to stay with it,” Goodell said. “And so we’re very conscious of making sure that we’re protecting those who came forward.” Everyone except Gruden, of course.
Gruden complains the NFL shielded the Washington team owners and executives from harassment charges, using his outsider e-mails to divert attention from the investigation and force him out. He claims that is unsportsmanlike conduct.
Gruden is suing the NFL and Goodell (but not the Raiders!) for the loss of his salary, endorsements, and reputation. He claims the league induced the Raiders to fire him, interfered with his contracts and business, and committed other wrongs against him. He also claims Goodell and the league were negligent in allowing their employees to release his e-mails to the press.
Litigation is a long process, and we are still early in the first quarter with no points scored yet. This Western Division battle has a long way to go.
Another Show, Another Firing
Gruden might want to hold off counting on the eight-figure damages he seeks, if Kevin Spacey provides any example. Spacey made a brilliant career out of morally ambiguous characters, from Keyser Soze in The Usual Suspects, to a corrupt ex-cop in L.A. Confidential, to a flawed father in American Beauty, and finally to the deadly effective politician Francis Underwood in House of Cards. That moral complexity followed him home.
In late 2017, 35-year-old actor Anthony Rapp reported Spacey molested him at a party 21 years before when he was 14, a dangerous story at the height of the #MeToo movement. Soon thereafter, a 19-year-old man accused Spacey of groping him in a bar off the Massachusetts coast. The allegation led to criminal charges, which were dropped after the man refused to testify amid claims he had deleted telephone messages that could have exonerated Spacey.
Meanwhile, Spacey was the person who saved Netflix, his series House of Cards elevating the streaming service from a home for TV reruns into a major platform of original television programming. The show dominated the Emmys since 2013, Spacey winning lead actor from 2014 through 2016, among its 34 Primetime Emmy wins. But having reached the top, Spacey’s Francis Underwood character was primed for the fall.
In October 2017, House of Cards began principal filming on its announced final season on Netflix. Spacey shot two episodes before Rupp’s accusations were publicized, and the other allegations followed.
On November 2, 2017, CNN published a detailed report citing eight crew members’ allegations that Spacey often harassed male employees on the set. One crew member reported seeing the actor introducing himself to multiple people: “Say hello, greet them, shake their hand and pull their hand down to his crotch or touch their crotch.”
The House of Cards producer, MRC, claims the CNN story provided its “first notice whatsoever” of any such conduct. It suspended Spacey pending an investigation. It ultimately found Spacey, both as an actor and as an executive producer, breached workplace standard policies, and it fired him.
Adding Injury to Insult
MRC wasn’t done. It filed a claim in arbitration against Spacey alleging it lost more than $30 million because it had to rewrite the entire season without him and reshoot the two episodes in which he starred. According to the company, it could deliver and was paid for only eight episodes of the scheduled 13. Spacey filed a cross-claim for millions of dollars in salary he says he lost because MRC wrongfully terminated him.
A nine-day arbitration followed more than 20 depositions. The arbitrator sided with MRC and on July 10, 2020, issued a 46-page report. Three months later, after posthearing motions, the arbitrator awarded the company more than $1 million in attorneys’ fees in addition to almost $30 million in damages.
Spacey filed and lost internal arbitration motions, and on November 22, MRC filed a petition before the Los Angeles Superior Court to enforce the $31 million award. If the Internet consensus is to be believed, Spacey’s net worth is about $75 million, and he may lose nearly half of that to this judgment.
House of Cards
I’m not suggesting the details of the two public fights are the same. One massive difference is that the MRC/Spacey contest squarely addresses alleged workplace misconduct, very different from Gruden’s interloping e-mails sniping at NFL policies and personalities from his ESPN booth on the sidelines. And without being dismissive of either category of harassment, the accusations against Spacey are about sexual touching, while Gruden’s are about offensive speech.
More important, neither legal action scratches the surface of the real issues, or hypocrisy, behind the stories. Will scapegoating Gruden do anything to remedy the prevalent sexism and homophobia in the NFL? No. Much more would have been done in that direction had the results of the league’s investigation into the eight Washington Redskins employees’ complaints been made public.
The NFL has had only one black president in its history and never a black majority owner. The arrival of openly gay players such as Michael Sam and Jonathan Martin in 2013 and 2014 was met with a league incapable of coping with them, evidence of a much bigger issue than the Gruden e-mails. Both the league and the entertainment industry have been steeped in prejudice for too long to make either of the individual personality exiles meaningful.
But both examples show some offenses carry no statute of limitations in the public mind, while other sins are forgiven. Within two years, legendary basketball announcer Marv Albert rebounded from his 1997 assault and battery conviction for his habit of literally backbiting prostitutes, and he was restored to his positions and inducted into the sports broadcasting hall of fame. Mel Gibson, after espousing a series of homophobic, antisemitic, misogynistic, and racist diatribes, is back from exile to direct the upcoming Lethal Weapon 5.
The public’s mood is inexplicable. At the end of the day, the episodes show the fickle, fleeting focus of fame, favor, and fortune. It all seems as stable as a house of cards.
Mark I. Schickman, an editor of the California Employment Law Letter, can be reached at Mark@SchickmanLaw.com.