Sports Scandal Reports: Not That Independent, Not That Investigative

Efforts like the newly released report on harassment in the NFL is limited in legal power and full of PR speak. But they can still create change in the league.
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Miami Dolphins guard Richie Icognito, center, prior to facing the Arizona Cardinals in an NFL football game in September 2012. (Paul Connors / AP)

Within hours of its release on February 14, various media outlets began dissecting the provocative details from the 144-page Wells Report—an investigation of allegations of widespread harassment and bullying among Miami Dolphins personnel. Author Ted Wells, a lawyer, included verbatim excerpts from text messages exchanged between the two primary players involved, Jonathan Martin and Richie Incognito. Formally titled “Report to the NFL Concerning Issues of Workplace Conduct at the Miami Dolphins,” it portrays pro football's locker-room culture in often-explicit detail—the “F” word (or a derivative thereof) is included 41 times.

The report will, understandably, be discussed for months. Its findings will likely bring about change in workplace policies among teams in the NFL and other sports leagues. But everyone involved would be served to keep in mind what the Wells Report is, and what it is not . In the history of “independent investigations” of sports scandals, none have been truly independent, and all have had serious investigative limitations. But they’ve still served an important function: accountability.

Over the last two and a half decades, top sports executives have routinely tapped the services of well-respected attorneys or former law enforcement personnel to conduct the investigations. Some sports leagues commission reports to proactively address a burgeoning problem; other times, they hire an investigator to preempt any outside investigation by Congress or a government agency.

Below are 10 of the most high-profile post-scandal reports, with counts for select key words (more on that later).

Many of the report names, ascribed to the primary authors, are recognizable to sports fans—Dowd, Mitchell, and Freeh being the most notable. Others are more obscure. The Paul Weiss Report, weighing in at a hefty 469 pages, investigated allegations of nepotism and conflicts of interest involving National Basketball Players Association personnel. The Sidley Austin Report concerned allegations of corruption in soccer governance in North America, Central America, and the Caribbean.

My review of all 10 reports revealed a number of interesting anecdotal observations. For example, the only report not primarily written by an American lawyer was also the shortest—the 66-page Gunn & Rees Report, investigating gambling-related corruption in tennis, was penned by two former British law enforcement officers. Meanwhile, the Pedowitz Report, drafted in the wake of the Tim Donaghy NBA referee betting scandal, used a clever linguistic device in responding to (non-)findings by the FBI regarding whether Donaghy manipulated games for gambling purposes: “Based on our review, and with the information we have available, we are unable to contradict the government’s conclusion.” And the NCAA’s report investigating the activities of a University of Miami booster (the NCAA’s report never actually uses the name “Nevin Shapiro”) is the only report that also gave rise to an ancillary report investigating the credibility and legality of the original investigation. Even more bizarre: The sequel report was released before the original.

Although the word “independent” is used frequently throughout the reports to emphasize the impartial nature of the investigators, the reports are quasi-independent at best. The investigators, after all, are paid by the leagues they’re investigating. The frequent use of “independent” in these reports is the kind of calculation Patrick Hruby described in detail at Sports on Earth when he spotlighted sports leagues’ now-unremarkable habit of borrowing communications strategies from the political sphere.  

The PR language generally works as intended. For example, in virtually every media report about the Wells Report, “independent” was used in its noun, adjective, and adverb forms. The usage started early. When the NFL announced the retention of Ted Wells in November, their short press release was on message, and the Miami Dolphins owner Stephen Ross repeated the term in his statement last Friday.       

Another shared feature of these scandal reports: The investigators hired to inquire about the various past scandals all were also hamstrung in three distinct ways, differentiating them from governmental law enforcement. First, subjects who voluntarily submitted to questioning as part of the investigation were neither under oath nor strapped to a polygraph machine. There was no perjury charge looming overhead if false or incomplete testimony was proffered. Second, the investigators lacked subpoena power. They were unable to compel anyone to speak or turn over documents, emails, texts, or any other tangible or electronic evidence. Third, the investigators did not have the authority to organically search for certain evidence given laws restricting such activities by private investigators. As a result, the inquiries were handicapped in ways government-authorized investigations are not.

Federal, state, and local law enforcement can, for example, wiretap phones with a court order, get search warrants, and seek a contempt-of-court charge for certain subjects who don't cooperate. League-sponsored scandal investigators do not have such options. Footnote No. 4 of the Wells Report, for example, is revealing in this regard. The footnote reads as follows:

Although we uncovered information relating to alleged drug use in this investigation, further inquiries into these matters are beyond the scope of our mandate, and the determination of any consequences for such activities is left to the [NFL].

Although the investigators came across allegations of drug use, an extremely important topic, the pre-determined focus of the Wells Report prevented an unfettered inquiry into all aspects of workplace conduct of the Miami Dolphins.

Despite their inherent limitations, the reports do serve an important purpose. They present the “official” narrative of the underlying scandal and can be referred to for years to come. They also serve as a tangible risk-management tool for a sports league or athletic association that may be facing legal action. Finally, the reports represent a desirable option compared to the alternative—a whitewash where higher-ups adopt an opaque “trust us” attitude and opt not to conduct any public investigation at all.   

During the year of its silver anniversary, the Dowd Report remains the gold standard for post-scandal investigations. Lead investigator John Dowd, a Washington, D.C.-based lawyer, authored a 228-page report with such depth that its findings resulted in the lifetime banishment of Pete Rose. Then-commissioner Bart Giamatti specifically referenced the Dowd Report when issuing his edict:

The banishment for life of Pete Rose from baseball is the sad end of a sorry episode. One of the game's greatest players has engaged in a variety of acts which have stained the game, and he must now live with the consequences of those acts. By choosing not to come to a hearing before me, and by choosing not to proffer any testimony or evidence contrary to the evidence and information contained in the report of the Special Counsel to the Commissioner, Mr. Rose has accepted baseball's ultimate sanction, lifetime ineligibility.

NFL commissioner Roger Goodell’s review of the Wells Report is ongoing, and the report’s findings do not bode well for Richie Incognito’s future as a professional football player. Like Major League Baseball’s late commissioner Bart Giamatti, Goodell will likely cite the Wells Report if he opts to banish Incognito from the league; the level of detail pertaining to Incognito’s conduct is so great that the players’ union will likely be placed in a no-win situation. Although the union has a fiduciary duty to stand up for its members, it’s almost impossible to envision the union leadership defending the actions of Incognito as anything other than a fireable offense. Which means the Wells Report, despite its limitations, will have made a real difference.

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