Judge Joan Zeldon of the Superior Court of the District of Columbia has denied a preliminary injunction sought by the National Football League Players Association (NFLPA). In doing so, she found that the agreement, and the employer's attempt to enforce it, went too far. Mary Moran sued the football players' union claiming sex discrimination and retaliation in her wrongful discharge. In response, the union asked for a preliminary injunction to enforce its confidentiality agreement. The union claimed that Moran had already violated the agreement by telling her lawyers about her employment claims, and then again when she filed the lawsuit. It is now increasingly common for private sector employers to require confidentiality agreements, and to use them as swords against whistleblowers. Judge Zeldon wisely saw that, "Enforcing the parties’ Confidentiality Agreement in this way would appear to be a violation of public policy."
She cited the case of EEOC v. Astra USA, Inc., 94 F.3d 738, 744-45 (1st Cir. 1996), for holding that a settlement agreement that precluded employees from assisting in an EEOC investigation of harassment charges was unenforceable. Judge Zeldon was also concerned that granting the NFLPA the injunction would prevent Moran from helping the Department of Labor's investigation of the NFLPA for racketeering. She also required the NFLPA to show exactly how it would be harmed by Moran's disclosures. This requirement put the employer in a difficult position. If it is not guilty of any discrimination or racketeering, then what has it got to be afraid of? If it is guilty, then it is in trouble because of its own misconduct, and it is unlikely to make this argument in a public court case.
This decision, and others like it, will hopefully encourage employees to consult with lawyers, even if they had to sign a confidentiality agreement as a condition of getting their jobs. Congratulations to Lynne Bernabei and Alan Kabat of Bernabei & Wachtel, PLLC, on this fine result advancing the rights of all whistleblowers. The decision is now published as Moran v. NFL Players, Inc., 137 DWLR 2673 (D.C. Sup. Ct. 2009).