Pages from the Investigator Playbook: When the “Workplace” is the Locker Room and Beyond
When does trash talk become workplace misconduct? What if the “workplace” is a football field, a media event, or a massage table? Who is responsible when fans act out? Savvy organizations recognize they need investigators with expertise in this domain. This article highlights some unique features of sports investigations and best practices for approaching them.
Rising Phenomenon
High-profile investigations in professional sports are on the rise. In July 2020, 15 female employees of the Washington Football Team alleged sexual harassment by former scouts and team employees.[1] A 2018 investigation into the Dallas Mavericks basketball team found sexual harassment and other misconduct “over a period of 20 years,” by a former executive and others. As a result, owner Mark Cuban agreed to contribute $10 million to women's causes.[2] Most recently, the NBA launched an investigation in February 2021 after an accusation emerged that an executive of the Utah Jazz made racially-charged comments.[3] Other organizations, from Penn State to the New England Patriots, have confronted misconduct allegations in recent years.
Unique Features of the Sports “Workplace”
Trash Talk. Passions fly high in competition, and rhetoric can, too. Screaming and walking around in a towel would be unacceptable in a copy room. However, it might be commonplace after a game. In that vein, understanding an organization’s culture is essential. This is especially true if the investigator’s role includes assessing whether policies were violated. For example, “horseplay” and drinking alcohol run afoul of most office codes of conduct. But they may be perfectly acceptable during a football victory party. On the other hand, laws and policies against discrimination and harassment still apply, on and off the field. The sports investigator may have to make fine distinctions between “locker room antics” and prohibited misconduct.
You’re Not the Boss of Me. The sports “workplace” often includes witnesses who are not employees. While sports teams work with colleagues, they also interact with scouts, media personnel, trainers, massage therapists, agents, sponsors, opposing teams, fans and more. The organization has little, if any, control over these parties. The team may not be able to require confidentiality or mandate participation. A skilled investigator needs carefully to strategize when, and how, to conduct non-employee witness interviews. They must also employ solutions to encourage third-party witnesses to put them at ease. For example, having the support of the league or governing body can encourage participation. The investigator should also confirm initially how to address non-employee participation, how to memorialize interviews, confidentiality, and other potential issues. For a more in-depth look at this issue, see Interviewing Non-Employee Witnesses – Be Aware of Potential Pitfalls.
Changing Demographics. The demographics of sports “workplaces” are changing dramatically. In February 2020, NFL official Sarah Thomas became the first woman to officiate a Super Bowl. The Tampa Bay Buccaneers reached the Super Bowl with three Black coaches as coordinators, another first. At the college level, transgender athletes are seeking to compete among those they identify with. Women, people of color, LGBTQ+ individuals, and others are breaking barriers across the sports landscape. Sports investigators should maintain awareness of social and cultural shifts as they apply specifically to sports.
“Us and Them.” Sports investigators often face the “us and them” mentality of team sports. Loyalty to the organization, as well as fear of bad publicity, can make witnesses reluctant to speak out. People working their “dream job” may wish to avoid controversy. Moreover, the life experience of players can be minimal. Given the young age of many professional athletes, the sports arena may be their first job. They may not be accustomed to navigating typical workplace dynamics, where a “workplace” can be more easily defined. A skilled investigator with experience in building rapport with ownership, management, staff, players, and contractors is vital to a good investigation, especially in a sports environment with complex alliances and allegiances—factors that may impact witness’ perceptions of events. Rapport building is also crucial for other reasons, as follows.
Publicity Concerns. In general, workplace investigators understand their findings could be made public – either because the team chooses to do so, or because information is leaked. This is particularly true in the high-profile world of professional sports. Fans, the media, and the public at large may be very invested in an investigation’s outcome. Therefore, it is vital that the results hold up to scrutiny. Investigators should approach each report as if it will be on the front page one day.
On that note, a recent letter to NFL Commissioner Roger Goodell demanded the release of the Washington Football team investigation results. The American Civil Liberties Union (ACLU) and others seek the report’s release. The letter to Goodell contends, “There cannot be accountability without transparency…If the NFL fails to release the report, these women will feel that the risk they took was in vain…”[4] Of course, best practices are essential whether the report becomes public or not.
Best Practices Win the Day
The successful sports investigator will consider a strategic approach to the following:
Confirm the organization’s confidentiality policies. Some contexts warrant maintaining witness confidentiality. However, a report’s credibility often hinges on identifying the basis for key witness statements. Critics might discredit a report with anonymous witness accounts.
Obtain clear direction regarding media inquiries, establish a clear message and stay consistent with that message.
Ensure the organization provides the investigator with full autonomy.
Maintain neutrality like any good referee or umpire.
Treat all witnesses similarly, and reach out to all key witnesses. Maintain a consistent strategy throughout the investigation to protect its integrity.
Give the respondent the opportunity to respond to each and every claim.
Employ transparent and consistent credibility analyses, including direct and indirect corroborating evidence, lack of corroborating evidence, motivations of parties and witnesses, plausibility of events, consistent and inconsistent evidence, material omissions, proximity in time, comparator factors, and articulated rationale for actions or decisions. In the context of a “he-said, she-said” situation, corroborating evidence can be vital. Overall, sports organizations may be less concerned about cost and more focused on a robust investigation with evidence from multiple corroborating sources.
Be flexible and adaptable.
Sports investigations present unique challenges. As with traditional investigations, there is no “one-size-fits-all” approach. Just as every winning coach has a game plan, the investigator should be intentional and strategic in their approach to the sports investigation.
Van Dermyden Maddux has handled workplace investigations for various major league sports organizations, including theSacramento Kings basketball team.
[1] Schad, Tom, “Fifteen former female employees of Washington NFL team allege sexual harassment in workplace, per report,” USA Today, Jul. 16, 2020.
[2] CBS News, “Investigation details workplace misconduct within Dallas Mavericks organization,” Sept. 20, 2018.
[3] Gstalter, Morgan, “NBA investigating allegations of racist remarks, threats made by Utah Jazz vice president,” The Hill, Feb. 26, 2021.
[4] Time’s Up, “Washington Post: NFL Probe of Harassment at Washington Football Team Should Be Made Public, Activists Say,” Feb. 5, 2021.
