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Allegations of Brett Favre Explicit Photos Unleash Legal Storm

Oct 8, 2010 – 10:53 PM
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Clay Travis

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Brett FavreIf allegations that Brett Favre sent sexually explicit images to then-New York Jets sideline reporter Jenn Sterger in 2008 prove true, he will face a legal storm.

Most of the issues stem from the fact that the advances were allegedly unwanted and that both were employed by the Jets at the time.

(Whether Sterger was an independent contractor or a full-time employee isn't likely to be significant in the disposition of this issue. We could enter into an entire labor and employment seminar on the issue, or you can just trust me.) The NFL on Friday announced that it is investigating Favre's actions.

Already hand-wringing has begun over whether the NFL should care if Brett Favre sent explicit photos to Jenn Sterger.

So what if he did, some nitwits are already asking. Well, I'll tell you, if he did and it can be proven that he did, the old gunslinger is in trouble. He may well face a suspension and miss actual games. These aren't two consenting adults bound only by rampant libido, and this wasn't a bar pick-up gone awry. In both of those situations, I'd agree with you. The NFL, the Jets and the media wouldn't have much reason to pry into the details of what went down. But since Favre and Sterger were de facto employees of the Jets, this situation needs to be investigated.

And that investigation is going to be difficult. I know because in my prior life as a practicing attorney I investigated dozens of sexual harassment claims on behalf of a wide-ranging collection of companies. All of these internal investigations were undertaken on behalf of the company in the wake of complaints, anonymous or on the record, filed by employees or contractors acting as employees alleging sexual harassment.

But before we go any further, let's go ahead and dismiss the column and opinion pieces you're going to read comparing Brett Favre and Tiger Woods. Other than professional athletes pursuing sex, these two cases have very little in common. Whether you were offended or not, Tiger Woods's sexual indiscretions were entirely private in nature. That is, they didn't involve his employer at all. Tiger cheated on his wife, but there wasn't anyone that had an actionable claim against him or his employer. That's why you could fairly criticize the media for pursuing this story so aggressively. Basically, Tiger was a famous person whose morals were far from pure. That's unfortunate for his now ex-wife, but it isn't a unique story in today's society.

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Favre is completely different. His indiscretions are inextricably intertwined with his sport, his league, and his team. You may hate for the media to pry into athlete's private lives, but Brett Favre's alleged acts aren't really private at all. They're actionable under the law and directly implicate football. Based on the allegations, a person in a position of power tried to take advantage of that power to encourage someone to do something that they otherwise wouldn't have done. That's a story as old as time. And given the continuing sexual fault line in our society, it's an incredibly relevant story. Indeed, ESPN's abject failure to aggressively cover this case -- contrast this with the Ines Sainz case, for instance -- represents the latest evidence, as if you needed any, of exactly how much the network is in bed with its broadcast partners and the athletes who make the network billions. Unlike Tiger Woods, this story doesn't just exist to sell magazines and provide salacious headlines. It's legit, it matters. Unlike Tiger, Brett Favre's pursuit of sex from a fellow employee goes to the very heart of our modern day sexual fault line and, potentially, offers real consequences.

Now comes the NFL investigation, a step that is already being criticized by some. That's ludicrous. The NFL, like any other organization with evidence that an employee sexually harassed another employee, is duty-bound to investigate. It would be infinitely more absurd, and potentially actionable in its own right, not to investigate. Especially in the wake of Friday night's report that two anonymous women, who claim to have worked as Jets masseuses, have come forward and alleged that Favre sexually harassed them via text messages.

Based upon all of the sexual harassment investigations I undertook, I can already give you an idea exactly what the NFL and the Jets are going to uncover in their own investigation: No man ever admits to anything. Period. It's always a he said, she said debate when you speak to someone face-to-face. While sexual harassment can be male to female, female to male, male to male, or female to female, the vast majority of cases still involve men alleged to have harassed women. In all my investigations, this was the allegation. In every case a woman alleged that something improper occurred and the man claimed that nothing improper happened. This makes sexual harassment cases the quintessential he said/she said debates.

Except now technology comes into play. Many men are being caught based upon e-mail, text messages, phone logs and photos. Where once it was two dueling stories, now there is evidence to accompany these stories. Per the Deadspin report, there is evidence that Favre left voice messages and sent naked photographs to Sterger. As a result, this story is not going away anytime soon. In fact, I predict it will be a shadow that follows Favre everywhere as he attempts to play a final season. Looking ahead, there are four main actors involved in this case with differing motives, objectives, and desired outcomes. As this story advances let's look at things from the perspective of Brett Favre, Jenn Sterger (and other potential victims), the NFL and the New York Jets.

1. Brett Favre

Will Favre willingly participate in the investigation, and if he doesn't, will the NFL make him? Asked to comment on Sterger's allegations Thursday, Favre declined to issue any comment at all. It's likely the NFL will insist that Favre meet with its investigators -- and I think it's likely that if the NFL determines these allegations have any truth -- that Favre is likely to face a suspension this season. That's especially the case when you consider that Ben Roethlisberger just finished a suspension for boorish behavior with women. Can the NFL really allow another Super Bowl-winning signal caller to skate on mistreatment of women when there is already the growing perception that NFL players mistreat women?

I don't think so.

It's not just Favre's image that could take a hit here. The Minnesota Vikings' season could very well hang in the balance. Not to mention Favre's own Hall of Fame career.

2. Jenn Sterger (and potentially other women who were affiliated with the Jets)

Jenn StergerThe key question is this: Was the sexual contact unwanted? That is, could Favre provide evidence that Sterger and any of the other women that may come forward welcomed his sexual advances. Remember, sexual harassment is in the eye of the harassed. So just because Favre believed he was within his rights to pursue sex from Jets employees or contractors doesn't mean that he truly was. It's not whether he believed his acts were harassive and unwanted, it's whether the women did.

Keep in mind, however, there's even an exception in sexual harassment law for one-time attempted pick-ups that fail. (This is jokingly known as the "there's no harm in asking" exception.) Is there truly an unwanted pattern of harassment on the part of Favre, or did he go after Sterger and other women aggressively and then relent when they didn't succumb to his advances? As such, it will be important to uncover whether there are text messages, e-mails and photos to demonstrate that continued harassment. If so, Favre may end up like a lot of modern men, hung by his own modern-media fingerprints.

For the record, and before the comments come flying out below blaming the women for this situation, I don't buy that Sterger is involved for the money. If she'd really been after money, as soon as Brett Favre sent her the unwanted photos she could have taken them to Favre and the Jets and demanded a settlement under the threat of going public with Favre's advances.

I think it's likely the Jets and Favre would have each paid out a million dollars or more to get a confidentiality statement and destroy the photos. What is Sterger gaining from the accusation now? And since she's already employed in the field of sports media, how is it going to help to have the reputation of being a snitch?

3. The NFL

The NFL is in the midst of wooing women football fans on a variety of fronts. As part of this new marketing plan, many players wore pink uniform apparel last Sunday. An entire advertising campaign is now predicated on convincing women to buy women-specific football apparel.

Why is the NFL doing this? Growth. The male audience is tapped out for football. But women? Women represent a fertile market for a league hellbent on conquering America. What's the biggest obstacle to the NFL's growing popularity among women? A belief taking root that the NFL players exploit and take advantage of women. If the NFL uncovers evidence that Favre sexually harassed Sterger or any other Jets employees, how could the league protect the shield?

By suspending Brett and sending a message to its most popular player that this behavior won't be tolerated.

4. The New York Jets

Remember the Ines Sainz case? The breathless coverage? The interviews? What seemed like a quest for eyeballs and ratings may have, in fact, heralded something much more interesting, a toxic work environment for females in the company of the New York Jets. The only thing worse than a sexual harassment allegation? A sexual harassment investigation. Especially if that investigation is undertaken by an aggressive and independent authority.

How aggressive would the NFL be in pursuing evidence of the atmosphere that exists around the Jets?

Very. Especially if the league is concerned that both of these stories, coming so closely together in the nation's premier media market, offer danger to the NFL brand.

Ultimately, if Brett Favre had known of the legal firestorm that these allegations would unleash, he probably would have stayed retired.

Follow Clay Travis on Twitter here. With All That and a Bag of Mail returning for the football season, you can e-mail him questions at
Filed under: Sports