A potential fight between the NFL and Congress is starting to simmer.
The Wall Street Journal reported on Sunday that members of the U.S. House Oversight and Reform Committee are unhappy with the NFL’s response to a wide-ranging request for materials tied to the league’s investigation into the workplace culture of the Washington Football Team. Specifically, the committee alleges that the league is improperly applying some element of legal confidentiality (such as attorney-client privilege) to portions of the information culled from the league’s probe.
The impasse has been seemingly inevitable since members of the committee requested a trove of information from the league about its investigation, only to have the NFL respond to questions in the request but fail to furnish documents.
Essentially, the league has now indicated to Congress privately what it has also been saying publicly: that it isn’t going to release the 650,000 emails produced in the workplace probe; that it doesn’t have a written report of findings; and that there is no intention of seeking or providing any of the work materials (such as notes) created by attorney Beth Wilkinson, who conducted the investigation. It's unclear how members of the oversight committee move forward — and whether they have enough support to do so.
Politically and legally, the Oversight and Reform Committee has a long reach in almost any direction, so this is a potentially significant fight for the NFL. It has 44 members — 25 Democrats, including Chairwoman Carolyn Maloney (D-N.Y.), alongside 19 Republicans. Democrats on the committee are driving this peek into the NFL’s role in the WFT investigation. With the party also controlling the House, there's potential for hearings to be conducted and even subpoenas to be issued if such support exists.
Hearings and especially subpoenas would be powerful tools used by the committee, which usually makes them a last resort. The subpoena authority is considered a hammer to be wielded in only the most urgent of matters, and there may not be enough support across the committee to use it against the NFL, particularly if there isn’t a strong argument that the league’s involvement in the WFT investigation has a deeper public interest.
Typically, for the committee to flex subpoena power when demanding private documents from corporations, there has to be significant overarching interest to a broad number of people or the country as a whole. For example, the committee used its power earlier in November to seek materials from a handful of oil companies. That request was aimed at discerning whether oil companies concealed information related to the potential damaging effects of climate change. That is the type of broad issue that can motivate the subpoena hammer. And the NFL’s WFT investigation unquestionably touches far fewer American lives than climate change.
What’s clear now is that the NFL disagrees with the notion of having to provide the broad swath of information committee members are looking for, and appears willing to challenge the legal authority of it. Essentially, that is what the league is already doing by refusing to comply with the document portion of the committee’s request. Now the committee must make a decision about how doggedly it wants to pursue the league’s handling of the WFT investigation, and whether that means taking a more drastic step than merely asking for materials to be willingly surrendered.