TBA Law Blog

Posted by: Christy Gibson on Sep 22, 2014

By: Timothy B. McConnell and Meghan H. Morgan

For those of you who may have been covered up at work lately and missed last week's news, the National Football League has become a topic of national discussion. At this time of year, that is not all that unusual as the NFL is just beginning its new season, and everyone is filled with the belief that it is their team's year to win the Super Bowl. Unfortunately for the NFL, the current raging discussion has nothing to with the NFL's new season or its on-field activities. Rather, it is an off-the-field situation involving one of its players, Ray Rice, and the NFL's handling of that situation that has become a national topic of debate. 

To borrow a sports phrase, "to the highlights (or in this case, the lowlights) we go."  On February 15, 2014, Baltimore Ravens running back Ray Rice assaulted his fiancée in an Atlantic City hotel elevator. Video footage was released to the public showing Rice dragging his unconscious fiancée out of the elevator and leaving her on the hallway floor. His actions resulted in the NFL issuing Rice a controversial two game suspension on July 24, 2014.  Thereafter, on September 8, 2014, TMZ released surveillance footage from inside the elevator, which, according to the NFL, had never been received and hence never reviewed, showing the actual violent act committed by Rice. Upon "further review," the NFL reversed its prior ruling and decided to suspend Mr. Rice indefinitely. 

Clearly, the most important development out of this very unfortunate situation has been the national focus on domestic violence.  But another issue has arisen that has direct application to anyone responsible for overseeing or conducting internal investigations:  the NFL's handling (or mishandling) of the investigation into the facts surrounding the Rice situation. The discussion has gone from one focused on the NFL's disciplinary review of Rice, to a discussion focused on the NFL itself – its culture and the internal handling of its investigation into Rice's actions. In fact, the scrutiny has grown so intense that the NFL now has asked outside counsel to investigate the NFL's investigation of the Rice situation – in other words, an investigation of an investigation.   

For attorneys who conduct internal investigations, the NFL's investigation serves as a good vehicle for a reminder of the importance of executing the basic fundamentals of an effective and thorough internal investigation: 

Don't send in the rookie quarterback.  An internal investigation is a crucial moment.  It will often times "head off" potential litigation, and even in those situations when the lawsuit is filed, the company, having done its investigation, will be much better prepared to defend the case. As such, given the importance of this moment, it is not the time to let an inexperienced rookie handle the investigation. Careful consideration must be given as to the best person to handle the investigation, with priority going to a veteran investigator. 

Develop a Game Plan.  Given the crucial nature of every internal investigation, this is not the time to just throw a "Hail Mary" and hope for the best. Before beginning the investigation, decisions should be made as to whom should be interviewed, the order of such interviews, what evidence should be gathered and the potential legal issues in play. In addition, in every investigation there will be unexpected twists and turns, and without a plan to guide the process, it is easy to get off track. Stick to the game plan and then make adjustments as needed. 

It's All About the Fundamentals. In the Rice investigation, it appears that the NFL failed to execute on basic steps that are now becoming painfully obvious. For example, when the first video was released, the obvious next question was, "Are there other videos?" Also, according to news reports, the second video was purportedly delivered to the NFL, but it appears that the video never made its way to the people conducting the investigation. Lesson learned: ask even the obvious questions, uncover all relevant information and secure all relevant evidence. An investigation should not be concluded until the investigator has completely gathered, assessed, recorded, and reported the facts.    

Be a Lockdown Investigator. As we all know, once a lawsuit is filed, it is not unusual for witnesses' memories and recollection of events to change, whether it be because of the passage of time, simple loss of interest in the situation, or the fact that someone is pursuing money. Consequently, it is essential to lockdown witness statements about the events at issue when their memories are fresh and not tainted by the prospect of receiving a large amount of money in a lawsuit. There are a variety of ways to do this, and every seasoned investigator has his/her own approach to doing so. Regardless of the method, though, lockdown the witnesses. 

Anticipate the Blitz. At some point in time, it is likely that the investigation will come under scrutiny, whether it be through an aggressive plaintiff's lawyer or a governmental agency, and it is important to understand this fact throughout the investigative process. So how do you anticipate the likely blitz?  Execute the fundamental steps discussed above, uncover the truth and deliver it to the company, no matter the implications.  Prompt, thorough, fair and impartial investigations will protect the company from being blindsided.


About the Authors:

Timothy McConnell and Meghan Morgan are in Baker Donelson's Knoxville office. Tim is an employment litigation shareholder who counsels and defends clients accused of violations arising under Title VII, the ADA, ADEA, FMLA, FLSA, OSHA and state-specific employment laws. He provides management and employee training programs on employment law-related  topics, and oversees reviews and audits of handbooks and policies.

Meghan Morgan is of counsel and advises employers on compliance with state and federal regulations, and guides them through issues ranging from wage and hour compliance to handling USERRA claims. Ms. Morgan defends clients in state and federal court when discrimination and retaliation lawsuits are filed and has experience managing workers' compensation claims.