Walsh's attorney says NFL indemnification offer falls short

Updated: February 15, 2008, 8:23 PM ET
By Mike Fish | ESPN.com

The attorney for Matt Walsh said the former New England Patriots video assistant is agreeable to providing information about the team's illegal taping practices, but as of Friday said the NFL has fallen short of his request for complete indemnification, which would protect Walsh from being sued.

Indemnification language

NFL counsel Jeffrey Pash offered the following proposed indemnification to Matt Walsh and his attorney:

". . . This will confirm that, subject only to the limited conditions set forth below, neither the National Football League, nor the New England Patriots, nor any of their affiliates will initiate litigation or arbitration proceedings against Mr. Walsh for the truthful disclosure to Senator Specter or his staff or to the League of facts of which Mr. Walsh may have become aware while employed by the Patriots. This commitment extends to the disclosure of factual information that might otherwise be deemed confidential or a trade secret. In return, you have confirmed that Mr. Walsh will share with the League office the same information that he shares with the Senator or his staff, and that he will do so at about the same time that he speaks with the Senator and/or his staff.

"The commitment is conditioned upon Mr. Walsh's promptly returning to the League Office, after he has been interviewed by Senator Specter or his staff, any and all documents or other items that he may have taken improperly from the Patriots during the period of his employment there, or which are otherwise the property of the Patriots, and his confirming, in writing, that all such documents or items have been returned. If Mr. Walsh's disclosures are truthful, the commitment not to initiate litigation or arbitration proceedings referred to above shall extend to the improper removal of any items that are returned."

Walsh's attorney, Michael Levy, countered with the following language to protect his client:

"The National Football League and any and all of its affiliates (the "League"), on behalf of itself and the New England Patriots and any and all of its affiliates (the "Patriots"), agrees to indemnify, defend and hold Mr. Walsh harmless from and against all losses, liabilities, damages, costs, fines, expenses, deficiencies, taxes, and reasonable fees and expenses of counsel and agents, including but not limited to any costs incurred responding to any investigation, inquiry, or proceeding or in the course of enforcement of this agreement, which may be sustained by Mr. Walsh arising out of, related to or connected with, directly or indirectly, (i) the employment of Mr. Walsh by the Patriots and any actions undertaken by him in the course of his employment, (ii) the taking or retention by Mr. Walsh of any information, documents or other materials that may be deemed to belong to (or constitute or contain confidential information or trade secrets of) the League or the Patriots, or (iii) any disclosure by Mr. Walsh of any such information, documents or materials to any person or entity, including the alleged untruthfulness in that disclosure absent bad faith on the part of Mr. Walsh ("Claims"). The League and the Patriots also fully and finally release and forever discharge Mr. Walsh from any and all Claims that the League or the Patriots may now have, have ever had, or may have, whether known or unknown, suspected or unsuspected, related in any way to the matters described above. The League and the Patriots are aware that, under the law of certain jurisdictions, a release may not extend to certain claims that a person does not know or suspect exist at the time when the release is executed. To the greatest extent permissible, the League, on behalf of itself and the Patriots, expressly waives the benefit of those laws and acknowledges that it intends this release to extend to the full extent described. Neither the League nor the Patriots will institute, maintain, prosecute, or authorize to be commenced any action or other proceeding against Mr. Walsh either in law or equity based in whole or in part upon any of the foregoing."

Walsh, who was employed by the Patriots from 1996 to 2003, has suggested to ESPN.com that he has information that could be potentially damaging to the league and the Patriots. He has, to date, refused to provide specifics or turn over potential evidence without protection against potential lawsuits.

NFL commissioner Roger Goodell has said that the league will "absolutely'' offer indemnification in turn for Walsh's cooperation. But Walsh's attorney, Michael Levy, said the offer presented Monday by league counsel Jeffrey Pash does not meet the standards for indemnification agreements.

A standard indemnification agreement, Walsh's attorney said, protects against allegations of untruthfulness as long as there is not "bad faith.''

"The NFL's proposal is not full indemnification,'' Levy told ESPN.com. "It is highly conditional and still leaves Mr. Walsh vulnerable. I have asked the NFL to provide Mr. Walsh with the necessary legal protections so that he can come forward with the truth without fear of retaliation or litigation. To best serve the interest of the public and everyone involved, I am hopeful the NFL will do so promptly.''

NFL spokesman Greg Aiello said the league believes it has offered to provide Walsh adequate coverage, if he is truthful.

"We offered immunity from litigation under two conditions, that he tell the truth and he return anything he took from the Patriots,'' Aiello said.

Sen. Arlen Specter, Republican leader on the Senate Judiciary Committee, has been critical of the league's handling of Spygate and continues to investigate. Specter said he has the support of Judiciary Committee chair Patrick Leahy, D-Vt., though the importance of what his investigation uncovers will determine if there's a need for committee hearings.

Specter has been in communication with the attorney for Walsh, and the lawmaker said he believes the former Patriots employee is a key to his investigation.

Walsh's attorney said his trust of the NFL is an issue after learning that a league security officer and former FBI agent, Dick Farley, had interviewed two of Walsh's former co-workers at a Cape Cod golf course in Massachusetts. Walsh, 31, has been an assistant golf pro at several courses in New England and Arizona since leaving the Patriots. He currently works at a course on Maui.

"Sending a former FBI agent to investigate his professional and personal life has not left Mr. Walsh feeling confident that the National Football League simply wants to encourage him to come forward with whatever information he has,'' Levy said.

Aiello, the NFL spokesman, acknowledged that the league has looked at public records to verify Walsh's employment history in "an effort to learn about him -- however that is done.''

Michael Levy, head of the white-collar investigations and enforcement group at the Washington firm of McKee Nelson, said gaining Walsh's cooperation is dependent upon the league meeting his terms for complete indemnification, which he provided Thursday to the NFL's outside counsel, Gregg Levy.

Under the NFL's indemnification offer, Walsh's attorney said his client could still be sued if, for instance, the Patriots contested the accuracy of whatever information he comes forward with. That could prove an enormous cost battling an NFL franchise in court.

"It is very easy to allege someone has been untruthful even if it can't be proven,'' Michael Levy said. "The NFL's proposal would leave Mr. Walsh completely unprotected against such an unproven allegation, because he would have to defend against it himself. And the NFL wants Mr. Walsh to give up the very materials he might need to prove his truthfulness.''

Someone could argue, according to both Levy and Specter, that Goodell was untruthful when he misconstrued facts in a Jan. 31, 2008, letter to Specter. While assuring Specter that the league's investigation uncovered no videotaping chicanery by the Patriots leading up to their 2005 Super Bowl victory against the Philadelphia Eagles, Goodell wrote, "The two teams had only played one other game against each other in the current decade, a preseason game in the summer of 2003.''

In fact, the Super Bowl showdown was the fifth game between the teams in the preceding 2 years.

"Clearly, commissioner Goodell should not seek to hold Mr. Walsh to a higher standard than the standard to which he would hold himself,'' Levy said. The attorney was careful to note that although Goodell's letter was inaccurate, he doesn't believe he acted in bad faith.

Mike Fish is an investigative reporter for ESPN.com. He can be reached at michaeljfish@gmail.com.