Gruden Liability: What Happens in Vegas Does NOT Stay in Vegas

The NFL email scandal involving the Washington Football Team and Jon Gruden is a twisted web of allegations and evidence. It seems as if every day there is more news coming out about the situation that adds fuel to the fire.

The Washington Football Team is being investigated by the NFL after female employees of the team alleged sexual harassment in 2020. After the original accusation, some of the Washington cheerleaders also claimed to have been videotaped while getting undressed and ultimately reached a settlement[1]. The alleged involvement of former WFT president Larry Michael and team owner Dan Snyder were both involved in ordering the videos to be taken[2]. The NFL took over the investigation from Snyder in August after Snyder’s alleged involvement and perpetuation of a misogynistic and discriminatory culture of the organization. The team was fined $10 million, and Snyder stepped down from his duties. All of this has culminated in the NFL diving into the content of 650,000 emails sent to and from Washington Football Team employees and executives.

The NFL has yet to release these emails but the NFLPA and attorneys of 40 former WFT employees are petitioning for their release. The most recent domino to fall from this entire investigation is the exposure and immediate resignation of former Las Vegas Raiders’ coach Jon Gruden. Gruden, while working for ESPN in 2011, was sending emails to former Washington Football Team president Bruce Allen containing abhorrent language about race and sexuality, even going so far as to accuse the NFL Commissioner Roger Goodell of forcing the LA Rams to draft a player based on his sexual orientation [3]. The exposure of these emails led to Gruden’s apparent voluntary resignation as head coach of the team. Recently rumors are swirling that Gruden might sue the NFL for its role in leaking his emails. Gruden was still owed money from his head coaching contract, and he might be entitled to it. Charles Robinson of Yahoo Sports analyzed this issue referencing the fact that if Gruden can prove that he resigned under the pressure of being fired anyway (called constructive discharge) then he would be entitled to the guaranteed money from his contract [4].

Furthermore, Gruden has a variety of torts he may be able to sue the NFL for. Our own Daniel Wallach (@WALLACHLEGAL) listed these potential torts: 1) Invasion of privacy (several types) 2) Intentional infliction of emotional distress and 3) Negligent infliction of emotional distress. The invasion of privacy would stem from the emails sent between Allen and Gruden since at the time Gruden was not an employee of the NFL and had been sending his emails from a private account, while Allen was sending his emails through the WFT address. There is usually some clause or agreement signed by employees about the privacy of emails but even absent an agreement, courts generally rule that employees should not expect to have that level of privacy, and therefore it would not be protected under the reasonable expectation of privacy under the 4th amendment[5]. So, while Allen has no defense, Gruden may have grounds for a suit since he was not an employee of the NFL at the time of the emails and used a private email, meaning he would have expected some level of privacy.

Regarding intentional and negligent infliction of emotional distress, they require; (1) the defendant must act intentionally or recklessly (or negligently); (2) the defendant's conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress[6]. If Gruden can prove the leaks were intentional, he may have grounds for this suit. If he cannot prove the leaks were intentional, he could sue for negligent infliction of emotional distress since leaking emails would be negligent behavior of those supposed to protect them. The intentional or negligent leaking of private emails would be outrageous, the conduct was the cause of Gruden’s firing and subsequent emotional distress, and if the firing and backlash have caused Gruden severe emotional distress he will have grounds for this suit. Whether Gruden pursues legal action, or he and Raiders’ owner Mark Davis settle behind closed doors is yet to be seen. However, don’t be surprised to see more news about the 650,000 emails and Las Vegas, it’s a good bet there’s plenty hiding beneath the surface.

Evan Mattel is a 1L at Hofstra Law and a 1L Representative of the Hofstra Sports and Entertainment Law Society. He can be found on Twitter at @Evan_Mattel21.

[1] Salvador, Joseph. “Lawyers Want WFT Investigation Findings Released.” Sports Illustrated. Sports Illustrated, October 12, 2021. [2] Fisher, Mike. “Washington Football Team Reaches Settlement with Cheerleaders over Lewd Videos.” Sports Illustrated Washington Football News, Analysis and More. Sports Illustrated Washington Football News, Analysis and More, February 11, 2021. [3] Benjamin Oct 15, Cody. “Washington NFL Email Scandal: Everything We Know so Far about Investigation That Led to Jon Gruden Resignation.” CBSSports.com, October 15, 2021. [4] Robinson, Charles. “How Much Will the Raiders Ultimately Pay Jon Gruden to Leave? It Depends If He Wants to Fight.” Yahoo! Sports. Yahoo!, October 18, 2021. [5] Team, Findlaw. “Email Privacy Concerns.” Findlaw, June 21, 2016. [6] Richards, Edward. “Elements of Intentional Infliction of Emotional Distress.” Elements of intentional infliction of emotional distress, 1997.