As the saying goes, “common sense is not.” This is often applied in the legal system, where hot air and verbiage can get in the way of basic logic and reality.
In Jim Trotter’s retaliation case against the NFL, common sense prevailed. For now.
Following the filing of their lawsuit, a wide range of people, from armchair Matlocks to seasoned attorneys who know better, have presented arguments that challenge the basic reality of events: A leads to B, leads to C. That led to the NFL to separate from Trotter.
It was simple. He complained about the lack of representation in the NFL Media newsroom. Nothing has changed. He complained some more. Nothing has changed. He discussed it with NFL commissioner Roger Goodell in a public place. Nothing has changed. He continued to complain. Nothing has changed. He finally returned to the subject with Goodell, in a public setting.
Then something changed.
After Trotter publicly pressured Goodell to respond during a second consecutive Super Bowl press conference, and after Goodell served up another unresponsive word salad, the NFL lost all interest in extending Trotter’s contract, which It expired in a matter of weeks. .
Some have argued that Trotter was not fired; His contract was not renewed. That doesn’t matter if the employee wants the relationship to continue. When an employment contract expires in this context, the employee: (1) obtains a new contract; (2) becomes an at-will employee; (3) resign; or (4) is fired. By not renewing Trotter’s contract and not inviting him to remain as an at-will employee, the NFL fired Trotter.
In a 38-page ruling explaining the decision to allow Trotter’s retaliation claim to proceed (and resolving other claims in the case, some of which were dismissed), Judge Jed S. Radkoff applied common sense to the situation . In cases like this, it is essential to do so. Rarely, if ever, will there be irrefutable proof. There will rarely be tangible proof that Colonel Nathan Jessup ordered Code Red. Rarely, if ever, will the case involve anything more than an effort to use circumstantial evidence and common sense to disprove the loud and predictable denials offered by the employer.
The key to Trotter’s claim was alleging facts that prove a “causal connection” between what he did and what the NFL decided to do. He asked Goodell a tough question in public on an issue of racial equity and inclusion. The second time Trotter did it, Goodell was sufficiently “disturbed” (as Trotter alleges) that the media company he runs decided to dramatically alter his position on whether he should keep Trotter.
It can be difficult to get a judge to focus on basic common sense, especially when (as attorneys representing employers often do) the attorneys representing the NFL essentially tried to kick dirt in the referee’s eyes. For example, NFL lawyers argued that Trotter’s questions to Goodell did not count as “protected activity” under the law because he asked them in his capacity as a reporter. Which, if taken to its logical extreme, would authorize the NFL to fire any NFL Media reporter for asking any question Goodell doesn’t like at any time about any workplace topic, because the activity could never protect the reporter against retaliation by the person. who was asked the question and literally signs the journalist’s paycheck.
The judge rejected the various efforts made by the NFL to obscure the basic, common-sense reality that Trotter became a troublemaker (in the eyes of the NFL), and that the best way to handle it was to let his contract expire and do not renew it. The judge also acknowledged that the about-face in Trotter’s contract renewal after he pressured Goodell for the second consecutive time in a public place was the “last straw that broke the camel’s back.”
“These were complaints that publicly criticized the NFL Commissioner to his face, accusing him of failing to fulfill his promise to address racial discrimination (or at least the lack of diversity) in the NFL,” the judge writes on page 29 of the failed. “It’s easy to imagine how this comment could have tipped the balance and led to Trotter’s final dismissal.”
The case is still in the early phases. The NFL will continue to defend itself aggressively, as it always does. Trotter will have the ability to make discovery, obtain documents, memos, emails and text messages, and question Goodell and other witnesses under oath during depositions in an effort to prove this simple chain of logic.
First, the NFL wanted to renew Trotter’s contract.
Second, he aggressively challenged Goodell publicly for failing to take steps to remedy Trotter’s complaints from a year earlier.
Third, the NFL changed its mind about Trotter.
This will surely take many months, if not several years, to be fully resolved. For now, however, the judge’s willingness and ability to apply common sense have kept the case alive.
Keynote USA
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