Commentary

Brett Favre, Jenn Sterger legal Q&A

Updated: December 29, 2010, 6:49 PM ET
By Lester Munson

Because Brett Favre was guilty of a "failure to cooperate" in the NFL's investigation of the Jenn Sterger controversy, the league has fined the Minnesota Vikings quarterback $50,000. The league's action raises questions on the legalities of the league's investigation, on Favre's response to the investigation and on sexual harassment in the workplace. Here are some of the questions and their answers:

Question: Favre was fined only $50,000 for an incident that has embarrassed the NFL for weeks. Has he managed to scramble out of trouble and get away with something?

Answer: Yes. In his statement Wednesday, NFL Commissioner Roger Goodell says that he "determined that Favre was not candid in several aspects during the investigation resulting in … additional negative public attention … for the NFL."

[+] EnlargeRoger Goodell
Joe Robbins/Getty ImagesRoger Goodell and the NFL muddled through the Brett Favre decision.

In the course of the NFL investigation, Favre submitted to an interview with league investigators and to a meeting with Goodell. Instead of telling the investigators and Goodell exactly what happened, he did not "cooperate with the investigation in a forthright manner," according to Goodell's statement announcing the fine. That means he didn't know things he should have known and couldn't remember things he should have remembered. Without Favre's recollection and admission of what happened, Goodell was stymied.

The incident happened two years ago; evidence had disappeared; and Favre was not "forthcoming." With his apparently shrewd refusal to cooperate with forthcoming answers, Favre managed to turn what could have been a serious workplace misconduct case with significant punishment into a minor refusal-to-cooperate with a $50,000 slap on the wrist. In his statement, Goodell admits that he would have "imposed a substantially higher level of discipline" if there had been clear evidence of misconduct. Favre's fuzzy responses to the charges allowed him to escape a suspension and a larger fine.

Q: What do the fine and the timing of the announcement tell us?

A: More than anything else, Goodell and the NFL wanted to bring this prurient and unsavory episode to an end. A fine of $50,000 for lack of cooperation ends an investigation that had lingered too long. Announcing it on Wednesday buried the news in the coverage of bowl games, Week 17 of the NFL season and playoff speculation. In their usual impressive fashion, the NFL and its PR wizards made the best of a difficult situation. The league appears to be disciplining one of its greatest players and, at the same time, doing it in a way that is lost in other news and makes the damaging episode into a story of a old guy who cannot remember exactly what happened on a couple of Sundays in 2008.

Q: Can Sterger file lawsuits against Favre and the Jets?

A: It will be difficult for Sterger to succeed in any lawsuits against Favre or the Jets. She faces severe problems on the nature of the harassment, the filing deadlines and a "notice" requirement. For her to succeed in a sexual harassment lawsuit, she must be able to show that the harassment was "severe and "pervasive" under federal law. That means simply the incidents of harassment must be multiple and disgusting. There is no set number, but most experts agree that there must be four or five incidents before the behavior qualifies as harassment.

Sterger must file her claim with a state agency or with the federal Equal Employment Opportunity Commission within 180 days after the last incident of harassment. There are ways to extend the filing period, but there is no way to extend it beyond 300 days. Unless there are incidents more recent than the 2008 voicemails and pictures, she may be barred from any suits against Favre and the Jets.

Even if there is a more recent incident, Sterger faces another hurdle in any lawsuit. Favre and Sterger were fellow employees of the Jets. To prevail against a fellow employee, Sterger must be able to show that the Jets had "notice" of Favre's behavior. The word "notice" in this context means that there must have been a complaint from someone in the Jets organization about what Favre was doing to Sterger. At this point, there are no reports of any notice to the Jets of Favre's behavior toward Sterger.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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