By Darius T. Love and Alexandra A. Bodnar
Overview
As most employers are aware, today's employment landscape is largely defined by the constant interaction between employers, employees, vendors, customers, and countless other entities that make up the "business" of business. Given the amount of social interaction that occurs in the workplace, employers must be prepared to address allegations of discriminatory statements or improper conduct that may arise. When tackling cases of wrongful workplace conduct, employers may elect to exercise one of the most useful procedures found in any employer toolkit: internal investigations.
Internal investigations provide employers with an avenue to gather the necessary facts in an effort to get to the crux and resolve accusations of misconduct in the workplace. Whether conducted by skilled Human Resources professionals, in-house counsel, or outside counsel, internal investigations must be implemented in a thorough and objective manner to ensure equitable findings of fact.
For in-house attorneys who represent professional sports organizations or institutions of higher education with athletic operations, conducting effective internal investigations in response to allegations of misconduct is in many ways similar to investigations undertaken in any other workplace, with the exception of one major nuance: increased public exposure. Because the circumstances requiring internal investigations by attorneys in the "sportsplace" are typically high-profile matters, sports organizations, leagues, and sports governing bodies must be particularly thorough in conducting investigations to ensure that the publicized findings are comprehensive, accurate, and impartial.
Impact of Increased Publicity on Internal Investigations in the Sportsplace
The circumstances surrounding internal investigations by sports organizations typically arise from common workplace improprieties, such as allegations of discriminatory remarks or conduct by employees or athletes of an organization. With the advent of around-the-clock media coverage and other sources of technological communication, in-house counsel in the sportsplace must reconcile the confidentiality required by internal investigations with the public's expectation of transparency. As noted by Anthony DiMoro in his article, "The Growing Impact of Social Media On Today's Sports Culture," more and more sports fans turn to social media to remain informed on the daily operations of their favorite sports teams, both on and off the playing field. And while most sports organizations have the option to facilitate internal investigations through multiple channels - i.e., Human Resources personnel, in-house counsel, professional league liaisons or sports governing bodies, and outside counsel - the expectation ofpublic disclosure can inhibit the desired objectivity of an investigation.
While reviewing the below procedures for conducting a satisfactory internal investigation, consider the impact of increased publicity on the internal investigations implemented by sports organizations and sports governing bodies in these recent incidents:
- In March 2016, media reports surfaced that NFL prospect Eli Apple was questioned about his sexual orientation by an Atlanta Falcons coach during the 2016 NFL Combine. In addition to an investigation into Apple's allegations by members of the Falcons organization, the NFL also launched an investigation into the matter. The matter raised deeper questions into the need for a larger scale investigation by the NFL across the entire league concerning appropriate workplace language and conduct.
- In August 2015, the University of Louisville, in conjunction with the NCAA, conducted an investigation into allegations of improper conduct by members of the Cardinals' basketball staff. Over the course of the investigation, which stretched out over a year and two months, media outlets satisfied the public's curiosity with numerous updates at every step of the investigative process.
- In August 2014, the University of North Carolina investigated an incident of reported hazing among members of the Tar Heels football team that evolved into an alleged assault. While University officials attempted to execute a thorough investigation into the hazing matter, media reports consistently called attention to prior instances of alleged misconduct by the University's Athletic Department.
- In July 2014, the Minnesota Vikings released one of the most noteworthy investigative reports regarding former Vikings punter Chris Kluwe's accusation that a member of the organization's coaching staff had made discriminatory remarks, thereby contributing to an alleged discriminative culture within the organization. The investigation led to an estimated 150 page full report and 29 page summary analysis. The national attention surrounding the investigation made it one of the most publicized legal proceedings in the sports arena that year.
The public nature of these recent investigations indicates how important it is for sports organizations to conduct focused and meticulous internal investigations in order to eliminate the effects of unfavorable public opinion on the factual findings of the investigation
What Does an Internal Investigation Look Like & Factors to Be Considered in Sportsplace Investigations
Every workplace investigation is different. Due to varying facts, time constraints, expectations of public disclosure, and other circumstantial nuances, it can be challenging for in-house counsel of sports organizations to facilitate or conduct comprehensive and thorough investigations. Despite the curveballs that may be thrown during the investigative process, in-house counsel should be aware of some essential procedures throughout the process. Below are the essential steps of an effective investigation:
- Prepare for the investigation: At the outset of an investigation, preparation is critical. Identifying who will lead the investigation, the relevant parties, vital documents, and how to proceed moving forward may seem like a big bite of the apple early on; however, early preparation makes the investigative process flow more efficiently in the later stages, which adds to overall productivity and fact-finding. Sportsplace investigations typically move at an accelerated pace compared to other workplace investigations; nevertheless, in-house counsel (or the investigative lead, if different) should still take the time to do as much preparation as possible at the front end of the process, despite the added pressure of an expedited turnaround for an investigative report.
- Consider confidentiality needs and restrictions: Some investigations may require an investigator to assess whether certain witnesses should keep details of the investigation confidential. Considerations such as the protection of a witness, the potential destruction of evidence, and the threat of witness collusion are all factors that should be evaluated with respect to each individual witness. Because sportsplace investigations regularly encompass allegations made by or against high-profile individuals such as collegiate or professional athletes, coaches, or front office executives, these considerations should be weighed heavily by in-house counsel facilitating or conducting the investigation.
- Thoroughly and immediately investigate ALL complaints: Oftentimes, the allegations or complaints that lead to an internal investigation have several branches, all stemming from a central base. All allegations should be investigated thoroughly and promptly, regardless of how insignificant the claim may appear. Both the complainant and the accused party should be interviewed. Immediate supervisors (i.e., coaches, managers, supervisors, etc.) should also be questioned, along with other persons of authority with whom either party may have shared information regarding the accusations. The investigator should remain objective throughout the investigation. In addition, one of the crucial components of witness interviews of which in-house counsel should be cognizant when conducting internal investigations is the Upjohn warning. Pursuant to Upjohn v. United States, when interviewing employees or players of a sports organization in connection with an internal investigation, the witness must be clearly informed by the investigating attorney that he or she represents the sports organization and that the organization may disclose, as it sees fit, any information and statements shared by the witness to third parties. By providing a proper Upjohn warning, the investigating inhouse counsel ensures that the investigation is conducted in an ethical manner and prevents conflicts of interest.
- Interview additional witnesses where necessary: Throughout the investigation, the investigator should keep an eye out and ear open for persons outside the sportsplace who may possess useful information. In the context of high-profile investigations in the sports arena, combing through a multitude of witness interviews may seem daunting, but remember, the goal is to sufficiently shake every branch to obtain the most complete and accurate depiction of the facts.
- Document the investigation: Every word that is written during an internal investigation is like each stroke of a paintbrush on a once blank canvas. There are no mistakes. With this philosophy in mind, investigators should carefully document any and all findings throughout the investigation. After documenting all findings, reports should be created and differentiated between non-privileged facts (such as who, what, when, where, how, and why), and privileged findings (such as conclusions and recommendations based on objective facts). As demonstrated by recent investigations of alleged misconduct in the sportsplace, increased publicity and the expectation of transparency have transformed the "investigative report" into a document of substantial significance.
- Take corrective action (if necessary): As with any determination of workplace misconduct following an investigation, the determination of improprieties in the sportsplace should result in corrective action where warranted. At the recommendation of the investigator, sports organizations should carefully consider the severity, frequency, and pervasiveness of the substantiated misconduct, along with any team or league guidance, before imposing disciplinary action. Again, because of the public nature of internal investigations in the sportsplace, a sports organization's disciplinary decisions will be scrutinized on a much larger scale than actions taken by employers in less public industries.
- Follow through: Although the internal investigation into a complainant's allegations may be completed and documented, the implications from the matter may be longer lasting. In-house counsel who facilitate or conduct an internal investigation should follow-up with the complainant after the conclusion of the investigation to inform the complainant of the outcome. In-house counsel should also consider what information should be communicated to other employees and players or individuals outside the sports organization, as well as when and how.
Conclusion
Similar to most workplaces, in-house counsel for sports organizations may work with Human Resources professionals, league liaisons and sports governing bodies, or outside counsel to conduct internal investigations when allegations of misconduct by employees or players arise. Although there are routine procedures that can be followed to ensure a thorough and comprehensive investigation, the high-profile, public nature of investigations in the sports arena tends to complicate the investigative process.
While there is no "one-size-fits-all" approach or procedure for conducting internal investigations, there are basic investigative techniques that can be adapted to achieve satisfactory investigation results. By considering the increased publicity of investigations in the sports arena, in-house counsel will be able to effectively utilize the investigative methods that best fit the circumstances of a particular matter. Although internal investigations in the sportsplace present a unique challenge to in-house counsel and all parties directly involved, these investigations are more than entertainment - they are reality.
Additional Resources:
- www.ogletreedeakins.com/shared-content/content/blog/2016/september/ripped-from-theheadlines-part-ii-three-investigation-lessons-to-learn-from-recent-scandals
- www.ogletreedeakins.com/shared-content/content/blog/2015/august/lessons-fromdeflategate-5-ways-to-avoid-workplace-investigation-fumbles
- The Twists and Turns of "Routine" Workplace Investigations: Solutions to Common Challenges (Patti Perez White Paper) Basic Investigation Checklist (prepared by Ogletree Deakins)
- www.wallerlaw.com/portalresource/lookup/wosid/cp-base-4-105006/media.name=/Sept-Ala-Lawyer-69502-1-AlaBar2.pdf
