Category Archives: Investigations

LEGAL ANALYSIS: COURT RULES THAT NFL FUMBLED BRADY INVESTIGATION AND OVERTURNS FOUR GAME SUSPENSION

In a long awaited ruling,  federal judge  Richard M. Berman overturned the NFL’s four game suspension of New England Patriots quarterback Tom Brady in the Deflategate case.

The judge’s decision provides employers with key takeaways when dealing with employee misconduct.  Before discussing those takeaways, here is the full decision.

THE JUDGE’S DECISION IN A NUTSHELL

The judge’s decision is lengthy, but can be boiled down to the following rulings:

  • “The Court finds that Brady had no notice that he could receive a four-game suspension for general awareness of ball deflation by others or participation in any scheme to deflate footballs, and non-cooperation with the ensuing Investigation.
  • Brady also had no notice that his discipline would be the equivalent of the discipline imposed upon a player who used performance enhancing drugs.
  • In further support of his claim that there was no notice of his discipline, Brady points to the testimony of Mr. Wells, who acknowledged the following at the arbitration hearing:  “I want to be clear– I did not tell Mr. Brady at any time that he would be subject to punishment for not giving– not turning over the documents [emails and texts]. I did not say anything like that.”
  • The Court concludes that, as a matter of law, no NFL policy or precedent notifies players that they may be disciplined (much less suspended) for general awareness of misconduct by others. And, it does not appear that the NFL has ever, prior to this case, sought to punish players for such an alleged violation.”

Judge Berman’s decision further admonishes the NFL for its failure to provide Brady with the ability to confront witnesses during the hearing and obtain documents in discovery:

  • First, the judge agreed with Brady’s contention that:  “Commissioner Goodell’s denial of the testimony of Jeff Pash at the arbitral hearing was fundamentally unfair because (1) the NFL publically declared that NFL Executive Vice President and General Counsel Jeff Pash was the co-lead investigator on the Wells-Pash Investigation, and (2) Pash was allowed to review a draft of the Wells Report and to provide Paul, Weiss with written comments or edits prior to the Report’s release the public.
  • Next, the judge found “that Commissioner Goodell’s denial of the Players Association’s motion to produce the Paul, Weiss investigative files, including notes of witness interviews, for Brady’s use at the arbitral hearing was fundamentally unfair and in violation of 9 U.S.C. § 10(a)(3) and that Brady was prejudiced as a result. The interview notes were, at the very least, the basis for the Wells Report, and Brady was prejudiced by his lack of access to them. Brady was denied the opportunity to examine and challenge materials that may have led to his suspension and which likely facilitated Paul, Weiss attorneys’ cross-examination of him. Because the investigative files included the unedited accounts of the witness interviews, the Wells testimony at the arbitral hearing failed to put Brady “in the same position as the document[ s] would [have].”

In sum, the NFL’s two fatal errors were (1) failing to warn players that deflating footballs or similar conduct could result in a suspension and (2) unfairly denying Brady the right to obtain investigatory documents and to confront a witness to the investigation which led to his suspension.

EMPLOYER TAKEAWAYS

Here are four takeaways for employers from the judge’s decision:

First, employers should have extremely broad language in employee handbooks that encompass a wide range of misconduct that can lead to discipline up to and including discharge.  While “deflating footballs” is not likely to be included as a dischargeable offense in your company’s employee handbook, management should annually review the handbook to ensure it is appropriately broad and complies with the law (some handbooks go too far and state policies which, if followed, are illegal).

Second, if you elect to engage in arbitration to resolve disputes — I am generally not a fan of arbitration — then the arbitration process must be fair to all parties. Judges rarely overturn arbitration decisions, but when they do,  procedural unfairness is a common basis for the decision.

Third, I believe the judge could have found for the NFL as easily as he found against it.  I am not suggesting Judge Berman was improperly biased.  However, aspects of his ruling are troubling, including the notion that a player should not know he may be suspended for (a) engaging in a conspiracy to cheat and then (b) covering up that conspiracy by refusing to cooperate with an investigation.

The lesson:  any time a company or organization — in this case one of the largest and most profitable organizations on earth — places its fate in the hands of a judge or other third party, control is lost; and the resulting decision often depends more on who is deciding the case than the actual facts of the case (e.g. the OJ Simpson case).

Fourth, choose your legal counsel wisely.  It is reported that the NFL paid “neutral” investigator Ted Wells over a million dollars for a report which had more holes in it than Swiss cheese. The NFL, presumably advised by other high paid lawyers, made a number of other tactical mistakes.

If you cannot avoid a dispute, select legal counsel based on proven experience AND a targeted and thoughtful interview and selection process that is not affected by the size of your lawyer’s cufflinks, firm letterhead, or ego.

CONCLUSION

The Super Bowl champion Patriots are back in business: the NFL season starts next week and quarterback Tom Brady is back at the controls.

 

 

LESSONS FOR EMPLOYERS ARISING FROM THE PATRIOTS ATTEMPT TO SACK THE NFL’S INVESTIGATION

The NFL vs. Tom Brady saga is the gift that keeps on giving.  Yesterday, the New England Patriots released a statement called “The Wells Report in Context.”  It should be named “An Attack on the Wells Report and Why We Hate the NFL” because it goes after Wells’ conclusions — which conclusions the NFL adopted — in a multitude of ways.

The Patriots statement attacking the Wells report is often as amusing as it is long.  One example:  According to the Patriots, ball boy Jim McNally didn’t call himself “The Deflator” because he took air out of footballs at the behest of Tom Brady;  he called himself that because he’s overweight and trying to lose a few pounds.  Many doubt the Patriots spin on the self-styled “deflator.”

ANY ORGANIZATION THAT CONDUCTS AN INVESTIGATION SHOULD EXPECT THAT IT WILL BE SCRUTINIZED

When any business conducts a workplace or other investigation, that investigation may later be challenged in an EEOC proceeding, lawsuit, or arbitration.  It is thus critical to get the investigation right — to make it unassailable.

But investigations often involve difficult credibility calls, memory foibles, and ambiguous evidence.  What if a company’s “heart” is in the right place — it means well — but it is later proved that it came to the wrong conclusion?

EMPLOYERS ARE HELD TO A GOOD FAITH STANDARD, NOT ONE OF PERFECTION 

If a company terminates or disciplines an employee based on a good faith, reasonable belief that an employee engaged in misconduct, but is later shown to be mistaken, the company will likely not  be found liable for discrimination.

For example, in Cervantez v. KMGP Services Co. a company fired an employee after it discovered that his computer User ID and password had been used to access pornographic Web sites from one of the company’s shared computers in the break room. The company conducted an investigation and determined that the plaintiff had been at work on the dates that his User ID was used to access hundreds of these sites. When the employee was told that he was being fired, he denied having visited any such Web sites, and then sued the employer, alleging that he was fired because of his age in violation of the Age Discrimination in Employment Act.

After he was fired, the employee obtained a copy of the log of Web sites he allegedly visited with his User ID. He admitted that the log showed attempts to access prohibited sites on dates that he was at work, but he also identified attempts made on dates that he did not work or at times long after his shift had ended.

A federal court found that the employer’s reason for discharging the employee – violation of its computer use policy – was a legitimate, nondiscriminatory reason, and that the apparent inconsistencies in the log detailing the Web sites the plaintiff allegedly accessed did not demonstrate that the employer’s reasons for firing him were pretextual. The Court ruled that “a fired employee’s actual innocence of his employer’s proffered accusation is irrelevant as long as the employer reasonably believed it and acted on it in good faith.”

THE SAME “GOOD FAITH” STANDARD APPLIES TO EMPLOYEE COMPLAINTS

An employee is protected against retaliation for opposing perceived
discrimination if the employee had a reasonable and good faith belief that the opposed practices were unlawful.  Thus, employer retaliation can be found whether or not the challenged practice ultimately is found to be unlawful.

As one court  has stated, requiring a finding of actual illegality would “undermine Title VII’s central purpose, the elimination of employment discrimination by informal means;  destroy one of the chief means of achieving that  purpose, the frank and non-disruptive exchange of ideas between employers  and employees; and serve no redeeming statutory or policy purposes of its own.”

Here are two examples applying the “good faith” standard:

Example 1 – Employee complains to her office manager that her
supervisor failed to promote her because of her gender.
(She believes that sex discrimination occurred because she
was qualified for the promotion and the supervisor promoted
a male instead.)  Employee has engaged in protected opposition
regardless of whether the promotion decision was in fact
discriminatory because she had a reasonable and good faith
belief that discrimination occurred.

Example 2 –  Same as above, except the job sought by Employee was
in accounting and required a CPA license, which Employee lacked
and the selectee had.  Employee knew that it was necessary to have
a CPA license to perform this job.  Employee has not engaged in
protected opposition because she did not have a reasonable
and good faith belief that she was rejected because of sex
discrimination.

TAKEAWAY FOR EMPLOYERS

Perfection is not of this world.  Courts and judges recognize this fact.  Thus, if an employer terminates or disciplines an employee based on a good faith, reasonable belief of misconduct, in most cases the employer will obtain a defense verdict even if it is  determined the employer was mistaken.

The key, therefore, is for employers to be able to prove that they had a good faith, reasonable belief when they disciplined or terminated the employee.  This is primarily accomplished by conducting a prompt and thorough investigation when misconduct comes to light, and by maintaining a solid documentary record of the investigation and evidence proving the misconduct.

HR Law Insider’s next article will drill down on what constitutes a good investigation versus a bad investigation — providing  employers the tools to make good faith decisions that will withstand EEOC, court, and public scrutiny.

Until then, the football follies are sure to continue, providing more fodder for comics, who are having a field day:

LONG ISLAND LIMO COMPANY LIABLE FOR FIRING FEMALE EMPLOYEE WHO REFUSED TO HAVE SEX WITH MANAGER

The New York Post reported today that a married Long Island ­limo-company manager told a female dispatcher he was firing her because she rejected his sexual ­advances — and even put it in writing: http://nypost.com/2015/04/10/boss-texts-gal-shes-fired-because-she-refused-his-sexual-advances/

According to the Post:

“The damning text — sent by former US Limousine manager Raymond Towns­end to pretty underling Geralyn Ganci — ended up costing him and his employer more than $700,000 in legal damages and fees, court papers show.

Ganci, 32, sued Townsend after she was fired for repeatedly refusing his barrage of sleazy requests, which eventually landed her in the hospital with extreme emotional distress, her suit said.

The sex-crazed Townsend said in one text that he “had to pull over to the side of the road and masturbate thinking about me,” Ganci said in her suit.

Ganci said she was shocked and sickened by his behavior — which occurred despite the fact that Townsend’s wife worked at the same New Hyde Park company and sat near her.

Finally, after allegedly forcing her into a restroom and putting his hand up her shirt, Townsend told the resistant Ganci she was fired in February 2009.

“The plaintiff even received another text message from Raymond Townsend which has been preserved stating that the reason plaintiff was fired was because she ‘refused to have sex with the general manager,’ ” according to the court papers.”

WHEN IS AN EMPLOYER LIABLE FOR ITS SUPERVISOR’S SEXUAL HARRASSMENT?

An employer may be subject to liability to a victimized employee for a hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.  However, when no tangible employment action is taken, a defending employer can avoid liability IF (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

While proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden.

No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

LESSONS FROM LONG ISLAND

Rogue supervisors — such as the Long Island limo manager — are unfortunately present in many companies.  To avoid liability for a supervisor’s misconduct, ensure that:

  • Your company has a solid complaint procedure in its employee handbook and/or other policies;
  • Any complaint procedure provides that the alleged victim can complain not only to the employee’s supervisor, but also to upper management and beyond in the event that the employee is uncomfortable complaining to the supervisor or unsatisfied with the company’s investigation;
  • The complaint procedure is known to all employees, documented as such, and reviewed with employees by management on at least an annual basis;
  • Company management is trained by legal counsel periodically on handling and investigating complaints;
  • The Complaint procedure is reviewed annually for any changes in the law or your organization;
  • Your company carefully follows its complaint procedure; and
  • If there has been supervisor harassment, it does not culminate in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

 

 

HOW TO DEAL WITH OFF-DUTY EMPLOYEE MISCONDUCT

Most employee handbooks state that employees may be disciplined or discharged for various types of misconduct within the workplace. But when, if at all, may employers terminate employees for misconduct outside the workplace? This edition of the HR Law Insider provides the answers.

FIRST THINGS FIRST: MAKE SURE YOUR EMPLOYEE HANDBOOK OR EMPLOYMENT CONTRACT ADDRESSES OFF-DUTY MISCONDUCT

All employee handbooks should contain language stating that off-duty misconduct may result in discipline up to and including discharge. Such provisions should provide the employer with maximum discretion to determine what types of off-duty misconduct qualify for discipline.

By way of example, the Standards of Conduct section of an employee handbook might include the following as a terminable offense: “Employee misconduct outside the workplace, including illegal, immoral, or offensive acts, which may, as determined in the Company’s sole discretion, reflect adversely upon the Company, impact the Company negatively, raise a safety concern, adversely affect the employee’s ability or credibility to fulfill the Employee’s job responsibilities, or adversely affect other employees’ job responsibilities or ability to do their jobs.”

If an employee handbook fails to include such a provision, it does not mean that the employer is unable to discipline or discharge an employee for off-duty misconduct — employers are still able to fire employees for such misconduct. However, in the absence of a provision for off-duty misconduct, the risk of a discrimination or other claim rises.

When an individual employment contract limits termination to only those circumstances where there is “good cause,” and off-duty misconduct is not listed as good cause to terminate, such a termination might constitute a breach of contract by the employer.

Thus, every handbook and every employment contract should include a provision covering employee misconduct outside the workplace.

DEALING WITH REAL WORLD SITUATIONS

 Here are common situations I have seen play out over the years:

* On Monday morning the spouse of an employee calls into work and says “John has been arrested and is in jail; it’s all a big mistake.”

* Employer hears through the grapevine that employee has been arrested for DUI or in a Sheriff Joe or other sting operation.

* Employer is tipped off to employee’s offensive social media posts.

* Employer learns that supervisor (usually male) and subordinate (usually female) are in a relationship and are having problems.

As with just about any situation, the first step for the prudent employer is to gather facts — to investigate. Sadly, it turns out that most arrests are not “all a big mistake.” However, employers should investigate with an open mind — letting the facts, not conjecture, guide their decisions.

Of course, an employee’s background with his or her company may greatly influence an employer’s ultimate decision: a 20 year employee with a spotless record who provides a great benefit to a company is typically given much more leeway than someone who is new to the job or a marginal performer. This is normal and appropriate, subject to setting a precedent which the company may need to follow into the future (see below).

In some instances it may be impossible to determine exactly what has happened. This may lead to a very difficult decision. The key for employers, who are not held to a standard of perfection but rather one of good faith, will be to demonstrate that (1) a fair and thorough investigation was conducted and (2) the employer’s decision was made for a bona fide business reason and not for an improper (e.g. discriminatory or retaliatory) reason.

RED FLAGS: WHEN DISCIPLINE OR DISCHARGE IS RISKY OR DOWNRIGHT INADVISABLE 

There will be times when terminating an employee for off-duty misconduct will get a company sued. For example:

* Terminating an employee for posting “offensive” material on Facebook about working conditions may result in a Section 7 Complaint under the National Labor Relations Act (see previous edition of the HR Law Insider).

* Terminating a minority or older employee for off-duty misconduct, when in the past non-minority or younger employees have not been terminated for such misconduct.

*In Arizona, terminating an employee for smoking pot away from the workplace when the employee has a medical marijuana card and is not impaired at work.

When making any employment decisions, business owners should always ensure their decisions cannot be challenged as treating employees differently based on following: race, color, religion, genetic information, national origin, sex (including same sex), pregnancy, childbirth or related medical conditions, age, disability or handicap, citizenship status and service member status.

In addition, federal law prohibits making employment decisions based on whether an employee has taken time off under the Family Medical Leave Act, made a safety complaint to OSHA, questioned overtime practices, or filed a charge of discrimination or harassment. 

THE FLIP SIDE: EMPLOYER LIABILITY FOR FAILING TO TAKE ACTION WHEN LEARNING OF OFF-DUTY MISCONDUCT

Failing to discipline, discharge, or otherwise deal with an employee who has engaged in off-duty misconduct may lead to a claim for negligent hiring, supervision, or retention against the employer. For example:

* An employer who learns that its employee has a DUI risks liability when it allows the employee to continue to drive a company vehicle.

* An employer who learns that its employee has been arrested or convicted of a violent crime or sex crime exposes itself to significant liability when it allows the employee to continue to interact with members of the public on behalf of the company.

CONCLUSION 

Employers confronted with off-duty misconduct must carefully balance the risk of discharging the employee against the risk of not acting. The risk of associated with discharging an employee can be minimized, if not eliminated, by a methodical investigation and decision making process. If an employer decides to retain an employee who it knows has engaged in off-duty misconduct, it should do so consciously — knowing that it may have created a precedent going forward — and in a way that mitigates potential liability.

Off-duty misconduct situations can be among the most difficult for employers. As such, employers should consult legal counsel when the inevitable “it’s all a big mistake” call comes in on that random Monday morning.

HOOTERS’ EMPLOYEES HAVE THE LAST LAUGH: HR LESSONS FROM A RIGGED BIKINI CONTEST

Truth is stranger than fiction. Fiction has to make sense.                                       

Mark Twain

One would think that it is lawful to maintain a work policy that “prohibits all insubordination to a manager or lack of respect and cooperation with fellow employees or guests.” This is no longer true. A judge recently ruled that such a policy violates the law.

The judge’s decision arose from a rigged bikini contest at Hooters. But do not confuse the novelty of the event with the applicability of the ruling to businesses nationwide. The next time a company thinks about terminating an employee for badmouthing it on Facebook or flaming it on Twitter, that company first needs to understand the Hooters’ case and assess the risk of an unlawful discharge lawsuit.

WHAT HAPPENED AT HOOTERS: KEY LIME PIES AND A BIKINI CONTEST GONE AWRY

Problems began at Hooters when an employee heard the company’s General Manager disparaging another “Hooter Girl”: “Angie eats too many key lime pies after her shift and she needs to go to the gym, rather than laying around with her boyfriend. And that she’s starting to look really bad in her uniform.”

Problems worsened when Hooters’ management sent a memo to employees about an upcoming bikini contest:

Hey Ladies, If you are not signed up for the contest you WILL be working that night. But to clarify if you have your name on the list and you plan on backing out cross your name off the list by Friday. If you are signed up for the contest and do not show up it will be a no call no show by our regional and GM and you WILL BE TERMINATED. Also you MUST be here by 8:30 p.m. If you are late you will not be allowed to enter the contest and you will work the floor that night like it was a scheduled shift. Any questions or if I’m not clear let me know.

This morale killing memo set the stage for post-bikini contest ugliness. The contest ended around midnight, with many tired and angry contestants. Several among the disgruntled and defeated complained that the contest had been rigged. After all, the winner was Hooters’ Marketing Coordinator who helped arrange the contest.

A particularly upset Hooter Girl told the winner, who was part of Hooters’ management, “Congratulations on cheating.” Other employees were not so understated, telling the winner “you’re an f%$ing bitch,” among other not so flattering comments.

Hooters’ Vice President of Human Resources abruptly fired the employee who made the “cheating” comment. The terminated employee was given the following notice:

On April 22, 2013 after the Ontario Swim Suit Competition you got into a verbal altercation with other employees, as well as posting disparaging comments about coworkers and managers on Social Media. This behavior violated the following provisions of the “Discipline” section of the Hooters employee handbook:

  • Acts of violence, threats of violence, dishonesty toward guest or fellow employees of Hooters.
  • Insubordination to a manager or lack of respect and cooperation with fellow employees or guest.
  • Any off-duty conduct which negatively affects, or would tend to negatively affect, the employee’s ability to perform his or her job, the Company’s reputation, or the smooth operation, goodwill or profitability of the Company’s business.
  • Any other action or activity which Hooters reasonably believes represents a threat to the smooth operation, goodwill, or profitability of the business.

THE LAWSUIT

The fired employee challenged the decision as being unlawful. The judge agreed. He found that the complaining employee had engaged in “protected concerted activity” under the National Labor Relations Act (the “Act”). Under the Act, if “employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.” See http://www.nlrb.gov/rights-we-protect/protected-concerted-activity.

The judge also found numerous provisions of Hooters’ handbook to be unlawful. He concluded that Hooters was “maintaining the following overly broad work rules”:

(a)        That prohibit employees from discussing tips with other employees or guest.

(b)        That prohibits all insubordination to a manager or lack of respect and cooperation with fellow employees or guests.

(c)        That prohibits employees from disrespecting guests by discussing tips with guest or making negative comments or actions to guests.

(d)       That prohibits dispersal of sensitive Company operating materials including policies, procedures, financial information, and Company manuals.

(e)        That prohibits any action or activity affecting the Company’s smooth operation, good will, or profitability of its business.

(f)        That prohibits off-duty conduct which would tend to negatively affect employees ability to perform their jobs or the smooth operation, good will, or profitability of the Company’s business.

(g)        That prohibits employees from discussing the Company’s business or legal affairs with anyone outside the Company.

(h)        That prohibits employees from publishing on their social networking sites any confidential or proprietary information of the Company.

(i)         That prohibits employees from being disrespectful to the Company, other employees, customers, partners, and competitors, posting no offensive language or pictures and no negative comments about the Company or coworkers or posting any information regarding a coworker or the Company.

THE BIG PICTURE FOR COMPANIES

The judge’s decision seems extreme — and it is. Times have changed. So too must company decision makers. Gone are the days when a company can terminate first and think later when an employee disparages the company.

Not all employee conduct is protected. There are boundaries. There is a point at employee conduct goes beyond protected dissent and becomes unprotected misconduct. Determining when that point has been reached is oftentimes challenging. This is particularly so given the government’s growing zeal in prosecuting so-called “Section 7” cases (Section 7 of the National Labor Relations Act prohibits terminating employees for engaging in protected concerted activity).

Next week’s HR Law Insider will analyze real world court cases in which judges have decided specific employee conduct which is protected, versus employee misconduct that is not protected. The objective: to provide your business with guidelines for handling employee dissent, whether it arises on Facebook, Twitter, or in the unlikely event your business decides to rig a bikini contest.

This week’s video recognizes that whether one is in the 1960’s or 2014, the times they are a changin’.

PREVIEW: DISCUSSING WORKPLACE INVESTIGATIONS AND MISCONDUCT

Better to remain silent and be thought a fool than to speak out and remove all doubt.   Abraham Lincoln

Next week the HR Law Insider will tackle the issue of discussing workplace investigations and misconduct. In the meanwhile, enjoy Saturday Night Live’s recent take on the NFL’s dilemma when it comes to discussing its past:

http://www.nbc.com/saturday-night-live/video/cnn-state-of-the-union-nfl-cold-open/2815269?onid=148621#vc148621=1

MONDAY MORNING QUARTERBACK: THE NFL’S RAY RICE INVESTIGATION UNDER REVIEW

 You must pursue this investigation of Watergate even if it leads to the president. I’m innocent. You’ve got to believe I’m innocent. If you don’t, take my job.

Richard M. Nixon

Workplace investigations are often conducted in the fog of quickly unfolding events. Within this fog, a leader must develop clear plan. The plan should include:

  • Who will lead the investigation
  • The scope of the investigation
  • Following applicable agreements and/or company policies
  • The order of the investigation
  • Selecting the appropriate witness(es) to investigatory interviews
  • How the investigation will be documented
  • Ensuring that all information is funneled up to the lead person
  • Flexibility in the face of new or unexpected facts
  • Confidentiality
  • When necessary, announcing some or all of the results of the investigation
  • Determining the appropriate discipline, if any
  • How the investigation will be perceived by the EEOC, a judge, jury, and/or the public at large

Given the NFL’s resources, one would think that it would know how to conduct an investigation. The Ray Rice situation, however, calls that into question.

For the uninitiated, Ray Rice is an NFL player. Earlier this year a video surfaced showing him carelessly dragging his unconscious fiancé out of an Atlantic City casino elevator. The NFL subsequently suspended Rice for two games for domestic violence. A chorus of boos ensued. Critics claimed that the penalty was far too light for the offense — the product of a league with a poor record on domestic violence protecting one of its star players.

Months later a second video emerged. It showed footage of what had happened inside the elevator moments before Rice dragged his unconscious fiancé out: Rice had knocked her out with a left-hand punch to the face. The second video shocked the nation and thrust the NFL into a media firestorm that continues to burn. The NFL immediately reversed field and suspended Rice indefinitely. This did not calm the masses, however — the NFL’s investigation was now itself under investigation.

What went wrong? It appears as though NFL Commissioner Goodell led the Rice investigation. If so, was he the correct person for that task? Doubtful. Whether a business owner should be the lead investigator and decision maker depends on several factors: the size of organization; type of matter being investigated; whether the owner is a witness or otherwise involved in the alleged conduct giving rise to the investigation; and, the owner’s expertise in the subject matter and in handling investigations (Goodell does not “own” the NFL but has been vested with seemingly unlimited authority by team owners).

The NFL is a multi-billion dollar organization with vast resources. The allegations against Ray Rice warranted the use of those resources to (1) conduct a thorough investigation and (2) determine the appropriate discipline in the event that Rice engaged in misconduct — a likely result given the initial videotape showing him abusively dragging his unconscious fiancé out of an elevator.

Commissioner Goodell admittedly had no experience investigating domestic violence matters. Apparently without thinking it through, he interviewed Rice in the presence of Rice’s fiancé, and then interviewed the fiancé in Rice’s presence. According to domestic violence experts, this was a mistake: perpetrators and victims should always be interviewed separately. Goodell sheepishly admitted as much at his recent press conference.  The lesson for any company: obtain counsel in determining the appropriate person to lead your investigation and immediately determine whether outside help is needed.

It appears as though the NFL did not adequately document the Rice interview. As a result, those present at the interview have differing versions of what Rice said. Goodell alleges Rice’s story is inconsistent with the second video, which shows Rice knocking out his fiancé in the elevator.  Rice’s team representative, however, alleges that what Rice said is wholly consistent with that video. Lesson: failure to adequately document employee and other interviews can undermine or even negate an otherwise effective investigation (albeit the NFL’s was not effective in the first instance).

The NFL claims it only suspended Rice for two games initially because it did not have the second videotape at the time. This illustrates two additional investigatory failures by the NFL. First, Rice’s attack took place in a casino. It is commonly known that casinos videotape all public areas including elevator interiors. Yet, the NFL claims it made little attempt to obtain the video of what happened in the elevator. Lesson: investigators must be able to defend the reasonableness of their efforts to locate relevant information. While investigators are not held to a Herculean standard, failure to look under one’s nose or in obvious places will subject an investigation to the claim that it was pretextual and not truly intended to uncover the truth.

There is emerging evidence that law enforcement did provide NFL security representatives with the second videotape at or around the time when the NFL obtained the initial videotape showing the outside of the elevator. Goodell, however, denies that he knew about the second videotape until months after reviewing the initial videotape. Lesson: any information obtained by your organization must be immediately provided to the lead investigator. Otherwise, your organization risks that its decision maker will reach fact conclusions or decide discipline on an incomplete or inaccurate set of facts.

The discipline meted out by the NFL illustrates yet additional flaws in the NFL’s haphazard decision making. It also displays just how tone deaf the NFL can be to public opinion and women’s rights. Initially, the NFL suspended Rice for two games. This was widely viewed as absurdly light, and Goodell has now admitted he “made a mistake.” How could he make such a mistake? Easy: it is all too common for businesses not to subject their high revenue producers and stars to appropriate scrutiny and discipline. The tendency is to let revenue producers and stars do their thing and hope the situation somehow passes under the radar.  This is a high risk strategy that failed miserably for the NFL

Ironically, the NFL’s mistakenly light initial discipline will now enable Rice to argue that he is being subjected to double jeopardy because he is being punished twice for the same offense — first a two week penalty and now an indefinite suspension. Lesson: organizations should carefully and deliberately consider the penalty for any misconduct. Factors to consider include the historical treatment of such misconduct; changing societal and legal standards; the deterrent effect on potential future offenders; and, the organization’s ability to defend the penalty.

Finally, the NFL failed to perceive how the Rice situation would escalate into a league-wide crisis. The league is enjoying unprecedented revenues, and this may have led to an over consolidation of power in one man — Goodell. He appears to occupy a power bubble and clearly lacks the ability to understand the broader issues and his detractors.

If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. Sun Tzu.

This article does not contain an exhaustive list of the NFL’s mistakes or a complete list of all the factors to consider when deciding upon who will conduct your company’s investigation and how it will be conducted. The topic is too fact intensive for any one article. Understand this: everything you do — from your first reaction to your final decision — may be subject to the scrutiny of the EEOC or a jury.

BONUS NOTE: Bowing to public pressure, Goodell selected former FBI Director, Robert Mueller, to investigate the NFL’s handling of the Rice situation. In doing so, he created yet another problem: Mueller now works for the law firm that represents the NFL. This further calls Goodell’s decision making into question: how could the NFL have hired a potentially biased investigator for such an important job? Stay tuned.

This week’s video clip from Jerry Maguire (warning: language) confirms that football decisions typically revolve/evolve around one thing: