Case Between Tiger Woods and Erica Herman Could Test Newly Passed Federal Laws
The revelation that Tiger Woods’s ex-girlfriend Erica Herman asked a court to toss out an NDA she signed in 2017 was not, on the surface, all that unusual. NDAs have been a popular tool used by the powerful, and they’ve come into sharper focus during the #MeToo movement.
In her March 6 legal filing in Martin County Circuit Court, Herman cited as support two newly passed federal laws, the Speak Out Act of 2022 and the Federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which made the story more complex.
It's important to note that nowhere in her Complaint for Declaratory Judgement to invalidate the NDA nor in a companion case between Herman and Jupiter Island Irrevocable Homestead Trust, a trust controlled by Woods and his two children, filed in the same Circuit Court in Martin County in October, is Woods or any other individual associated with Woods accused of sexual assault or sexual harassment. In Woods’s response to Herman’s March 6 complaint, he stated that Herman “cannot assert such claims truthfully.”
Yet the two acts cited by Herman while asking for the nullification of the 2017 NDA and the subsequent arbitration she agreed to within it require sexual assault or sexual harassment to have occurred.
Such assault or harassment may or may not eventually be alleged against Woods himself.
While both laws seem very clear what is required for nullification of an NDA or arbitration, it’s unclear whether either law has been used in court or challenged. The Speak Out Act was signed into law by President Joe Biden on Dec. 7, 2022, and the Federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 was signed into law on March 3, 2022.
Why didn’t Herman file a complaint for sexual assault or sexual harassment, instead asking the Florida court to nullify the NDA and the arbitration provision? If Herman is in fact planning on asserting those kinds of claims, it may come down to the maturity of the new law and the fact that no precedent exists.
“The law that Congress passed last December says that nondisclosure agreements are not going to be enforceable in a court of law, meaning that any person can go to court and say this nondisclosure agreement should not be enforced,” says Julia Duncan, senior director of government affairs at the American Association for Justice.
Duncan and the American Association for Justice were part of a larger effort to get both pieces of legislation passed, and while it seems self-explanatory how the courts are to treat both sexual assault and sexual harassment in regard to NDAs and arbitration, nothing is cut-and-dried in the legal process.
Both pieces of legislation received bipartisan support, but given how recently they became law, Herman may be treading lightly and taking a conservative approach to invalidating the NDA she signed.
“It is confusing, and this is where it gets sort of legally wonky,” Duncan says of Herman’s decision to ask the court to invalidate the NDA first before potentially filing a claim for sexual assault or sexual harassment. “When a survivor of sexual violence or sexual harassment wants to speak freely, a lot of people are subject to nondisclosure agreements. When you want to speak freely, and you want to essentially break your nondisclosure agreement, it's a big deal.”
Duncan adds that many nondisclosure agreements, especially with large and powerful companies or large and powerful individuals, have excessive penalties, and survivors who violate those agreements can be forced to pay hundreds of thousands if not millions of dollars.
The individual can be sued personally as well.
“There’s a lot of really bad things that can happen to you,” Duncan says. “So, it makes total sense to me that, in any case, especially given that this law is so new, that survivors who are seeking protection of the law would want a declaration from a judge that yes, in fact, this law will apply to your case and therefore you are going to be protected if you wish to speak freely.”
Duncan continues: “That’s exactly what Congress intended when it passed the law. But I can understand—I mean, it would be one thing if this law had been around for 20 years. We would all know what it means. We would know who it applies to, we would know when it applies. But it’s not uncommon, where laws are new and they haven't been interpreted by any court, for victims and survivors to seek essentially a judge’s approval that the law applies to them.”
“It's not clear what happened in the case, but it’s very logical that a survivor would want a court to say she's protected before she speaks out in violation of her NDA,” Duncan says. Again, it’s important to note that Herman has not made any allegations of sexual assault or sexual harassment in her two complaints.
Following the rule of the new law, it’s possible that the Circuit Court in Martin County will invalidate the Woods-Herman NDA, clearing the way for Herman to file a complaint of sexual assault and/or sexual harassment. But Duncan knows that to make predictions of what a court will do is no sure thing.
Duncan is not aware of any cases where the two laws have been tested in court, and a case as high-profile as Tiger Woods may have additional hurdles.
“I think this is going to be a case of first impression, or at least one of the one of the earliest cases about this law,” Duncan says.
Which may mean that Herman’s desire to remove the NDA may be a long process.
On March 13, Woods responded to Herman’s complaint, as he was required by law to do. Woods’s attorneys wrote in part: “Ms. Herman’s Complaint does nothing more than cite to these federal statutes. She has never asserted any claims for sexual assault or sexual harassment against Mr. Woods, does not do so in this case, and cannot assert such claims truthfully. The federal Ending Forced Arbitration Act is not applicable to the claims in this case and Ms. Herman’s attempt to use the statute to prevent arbitration of her claims is nothing short of a rank abuse of the judicial process that undermines the purpose of the statute and those whom the statute seeks to protect.”
Attorneys for Woods and Herman did not respond to Sports Illustrated’s requests for comment.