Did the NFL Network Make a Mistake in Denying Sexual Harassment Allegations?

Rather than reach a settlement, NFL Enterprises has decided to litigate against Jami Cantor's sexual harassment allegations, which could lead to additional reputational harm and damage to the network's brand.
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Attorneys retained by the NFL Network have answered a civil complaint filed by Jami Cantor, the network’s former wardrobe stylist who asserts that producers and on-air talent sexually harassed and terrorized her.

We previously analyzed Cantor’s complaint, which was filed in Los Angeles Superior Court in December. She accuses former executive producer Eric Weinberger as well as current and former on-air TV analysts Marshall Faulk, Ike Taylor, Warren Sapp, Heath Evans, Eric Davis and Donovan McNabb of a wide-range of misconduct. Cantor charges they collectively sent her nude photos, texted her with messages that propositioned her to have sex and made other unwanted advances of a sexual kind. She was ultimately fired for allegedly stealing clothing that belonged to the network (she argues her dismissal was retaliation for complaining about mistreatment).

In a filing made on Jan. 18, NFL Enterprises (which owns the NFL Network) repeatedly denied all of Cantor’s sexual harassment allegations. The response, which was authored by Proskauer Rose attorneys, offers a variety of common, cookie-cutter defenses typically articulated in answers.

For instance, the NFL Network asserts that Cantor failed to file her lawsuit within the allotted statute of limitations and also neglected to avail herself of remedies available through workers’ compensation. The NFL Network further charges that Cantor’s claims were not brought in good faith and that she acted with “unclean hands.” In fact, the NFL Network depicts Cantor as at fault, contending that she gave her “consent.” To the extent Cantor suffered any injuries, the league asserts that she is “solely” to blame.

On the surface, the NFL Network’s answer might seem grossly insensitive and tone deafespecially considering the seriousness of Cantor’s allegations and the social context in which she has raised those allegations. We live in a time when mistreatment of women in the workplace has increasingly come to light. Those responsible for it are being named and, in some instances, suffering a professional cost.

But an attorney’s answer to a complaint should be viewed in its own context.

An answer to a complaint is a defendant’s chance to admit or deny the plaintiff’s allegations. If a defendant’s answer doesn’t deny a particular allegation or raise a particular defense, the opportunity to do so is usually forfeited. This is why answers tend to consist of numerous denials and a variety of defenses, some less plausible than others. Attorneys for the defendant know that in order to preserve both potential litigation strategies and negotiation leverage in settlement talks, answers must aggressively deny and defend. That is lawyering.

Attorneys are also accountable to their professional obligations as members of the bar. The rules of attorney professional conduct command that attorneys are “zealous” advocates for their clients. Along those lines, they are entrusted to aggressively assert their client's position. An attorney who fails to meet this standard can be sanctioned or face a malpractice lawsuit.

A better criticism of the NFL Network’s answer is to question why it even exists.

For reasons that are not entirely clear, the NFL Network has decided to litigate against Cantor rather than reach a settlement. The NFL has likely had opportunities to offer Cantor settlement terms that might have convinced her not to file a lawsuit and “name names.” For the NFL Network, the lawsuit itself is damaging. Even if the league ultimately prevails in court, damage has been done to the NFL Network’s brand. And it could get worse. Cantor, for instance, says she is in possession of damaging texts. If those texts become public through the case, the implicated NFL commentators—some of whom have been suspended—will suffer even more reputational harm.

On Dec. 12 the NFL Network offered a statement on the allegations: “Marshall Faulk, Ike Taylor, and Heath Evans have been suspended from their duties at NFL Network pending an investigation into these allegations.”  The same day, a spokesperson for The Ringer issued this statement to SI.com on Weinberger, who is now president of the Bill Simmons Media Group: “These are very serious and disturbing allegations that we were made aware of today. We are placing Eric on leave indefinitely until we have a better understanding of what transpired during his time at the NFL, and we will conduct our own internal investigation.” On Jan. 5 ESPN announced it had fired McNabb and Davis, who worked as radio hosts for the network.

SI.com will keep you posted on any case developments.

Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA

Richard Deitsch is SI’s media columnist and he also contributed to this report.