/Saints Lending PR Advice to Local Archdiocese Raises Legal Questions – Sports Illustrated

Saints Lending PR Advice to Local Archdiocese Raises Legal Questions – Sports Illustrated

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The New Orleans Saints and a group of about two dozen adult men who contend they were victims of sexual abuse as children are at odds in a civil litigation brought against the Archdiocese of New Orleans in the Civil District Court for the Parish of Orleans.

The men accused the Archdiocese of negligence, fraudulent concealment, public nuisance and vicarious liability related to the alleged sexual abuse of children. A central figure in the alleged abuse is George Brignac. Brignac, 85, was ordained as a deacon and employed by the Archdiocese as a teacher for many years.

Saints executives allegedly helped the Archdiocese manage external relations related to the Brignac controversy and related controversies. This assistance included emails that the Saints now refuse to turn over on account of confidentiality. Depending on the trajectory of the litigation, Saints executives could become witnesses in a high-profile clergy abuse case.

The moving around of an accused pedophile

Brignac is accused of being a serial child predator in the New Orleans area for decades. His superiors were repeatedly made aware of accusations and could have, at a minimum, prevented his continued access to children. Instead, they sent away with the knowledge that he could—and almost certainly would—abuse other children.

In 1977, Brignac was a teacher at St. Matthew School. He was arrested that year on three counts of indecent behavior with a juvenile. Brignac was found not guilty in a trial. Following the trial, the Archdiocese transferred Brignac to Holy Rosary School where he was again permitted to be alone with children. Brignac was also named co-director of the altar boy program at Our Lady of Rosary Parish.

Three years later, Brignac was accused of fondling the genitalia of an 11-year-old boy. The New Orleans Police Department investigated but no charges were brought.

In 1987, a 7-year-old boy accused Brignac of fondling his genitalia at a Christmas party. Brignac was criminally charged with molestation. A year later, the Archdiocese removed Brignac from the ministry and defrocked him.

Yet Brignac remained active with the Archdiocese. In fact, he took on official capacities in which he continued to interact with children.

According to attorneys suing the Archdiocese, Brignac served a lay lector at St. Mary Magdalen Church in Metairie, Louisiana, from 1988 to 2018. Brignac was also active in a local chapter of the Knights of Columbus. He was removed from these positions upon media coverage that exposed his past.

Last year Brignac, who admitted to a reporter he had touched boys, was charged with aggravated rape of a boy under the age of 12 during the 1970s. He is being prosecuted in Orleans Parish Criminal District Court. In response to Brignac’s arrest, the Archdiocese released a statement saying, “we too seek truth and justice and as always, we pledge our full cooperation in the law enforcement investigation.”

The men suing the Archdiocese maintain that Archdiocese officials took “no steps” to protect the children of either St. Matthew or Holy Rosary “from the child-predator, Brignac.” Instead, the Archdiocese is accused of both deflecting responsibility and concealing evidence.

The men further depict the Archdiocese as behaving disingenuously. While making public assurances that it takes the allegations seriously, behind closed doors the Archdiocese allegedly tries to hide damning secrets. The Saints are linked to this claim since they allegedly advised the Archdiocese on communications strategy.

The Archdiocese forcefully rejects these accusations. It maintains that it desires justice as much as anyone.

The litigation is now before a court-appointed special master.

The Saints’ relationship to the litigation as a third party

On the surface, the Saints would seem to have little or nothing to do with the Archdiocese or any other religious organization. The Saints are a privately-owned, for-profit professional football team. The franchise’s religious ties seem very limited. The team is, of course, named the Saints, which has a religious meaning and also refers to Louis Armstrong’s famous 1938 song “When the Saints Go Marching In.” The franchise also employs a chaplain who organizes pregame masses and other faith-based activities with players, coaches and staff. Still, at their core, the Saints are a business that attempts to entertain football fans and attract dollars from both consumers and sponsors.

Nonetheless, certain members of the Saints are connected to the Archdiocese and, in turn, the controversy. As detailed by The Associated Press, team owner Gayle Benson has a “close friendship” with New Orleans Archbishop Gregory Aymond. Benson has also donated millions of dollars to New Orleans-based Catholic institutions.

Attorneys representing the men contend that, under Benson’s leadership, senior members of the Saints’ organization informally served as on-going advisors to the Archdiocese. The advice shared was supposedly geared towards guiding the Archdiocese in its public messaging on Brignac and others who have been accused. This practice constituted a “favor” or goodwill gesture by the Saints, rather than a paid consulting service.

The act of advising the Archdiocese on crisis communications does not implicate the Saints’ staff in unlawful conduct. While it would seem odd for a religious organization implicated in a child abuse scandal to entrust a professional football team on how to handle the scandal, and while it would be equally odd for that team’s staff to feel qualified to offer such advice, that dynamic is not proof of unlawful conduct. It is proof of advice, ill-advised or not.

The legal debate over confidentiality

Attorneys representing the men insist that the legality of the Saints’ advice isn’t the operative issue. What matters, they argue, is whether records of the advice are discoverable evidence. To that point, the attorneys maintain that communications between the Saints and the Archdiocese bear directly on whether the Archdiocese is liable.

During the process of pretrial discovery, defendants and plaintiffs are ordered to share sensitive information—such as texts and emails—that pertain to whether a defendant satisfied or broke the law. Here, the attorneys contend that emails sent between the Saints and the Archdiocese are relevant because they illuminate “a continuation of the Archdiocese’s pattern and practice of concealing its crimes.” Stated differently, the Saints are accused of advising the Archdiocese on media coverage of an unlawful “pattern and practice.” To be clear, though, the Saints are not accused of illegally partaking in that practice.

The Saints have been on notice for some time that their communications are of interest to the men suing the Archdiocese. Last July, the Saints received a subpoena duces tecum, which is a request for documentation, as part of the litigation. Sports Illustrated has obtained a copy of the subpoena. It demanded from the Saints such items as:

• Emails, letters, memoranda, direct messages, text messages or any other form of written communications or recorded verbal communications between Saints ownership and management, specifically including senior vice president of communications Greg Bensel, and the Archdiocese or any of its employees.

• Any agreements, letters or other correspondence identifying and establishing the authority of Bensel to act in concert with the Archdiocese in its interaction with the handling of alleged sexual abuse.

• The most recent resume or curriculum vitae of Bensel.

The Saints and Archdiocese have challenged the legality of forcing the Saints, who are not a party to the dispute, to share emails and other records. Last fall, the court issued a protective order allowing the Saints to designate certain documents as confidential and thus not subject to disclosure. The Saints and the Archdiocese have both filed motions to maintain confidentiality designations.

The men suing the Archdiocese believe that the Saints have designated too many documents as confidential. According to court filings, 276 of 305 documents, most of which are emails, are marked “confidential.” Among the confidential documents are emails between Bensel and Sarah McDonald, the Archdiocese’s director of communications, as well as an email sent by Bensel to McDonald and Aymond concerning a statement made by Benson to the media.

The attorneys representing the men are certain the law is on their side. They insist that many of the emails in question do not fall under any established category of protected communications. None of the emails, the attorneys maintain, involve the sharing of trade secrets (such as playbooks, scouting reports or analytics formulas), financial records (such as bank statements) or personal information (such as players’ medical records). The emails instead, the attorneys charge, simply comprise messages of advice concerning a public relations controversy.

The attorneys representing the men also insist the Saints can’t claim to be a party to the case in order to invoke confidentiality. The team, as bluntly expressed in a recent court filing by the plaintiffs, is “not alleged to have hired pedophiles or to have covered up the pedophilia or facilitated the pedophilia by moving the pedophiles from church parish to church parish.”

While not alleged to have engaged in any illegal acts, Saints executives are alleged to have been “unofficially lent out” to assist the Archdiocese. This so-called “leasing” of Saints executives’ time and talents was not done pursuant to any contract. The absence of a contract makes it harder for the Saints to claim there was an agreement on any communications being privileged. Normally, communications between parties and third parties (as opposed to hired counsel and consultants) are not privileged. It is also easier for parties to inadvertently waive any claim of confidentiality when communicating with third parties.

Although the Saints refuse to share emails, the team issued a statement on Friday assuring the public that it only told the Archdiocese to be transparent.

“The Archdiocese,” the statement reads, “reached out to a number of community and civic-minded leaders seeking counsel on handling the pending media attention that would come with the release of the clergy names in November of 2018.” In response, the team says it shared the following advice: “Be direct, open and fully transparent, while making sure that all law enforcement agencies were alerted.” The statement adds that the entire Saints organization “remains offended, disappointed and repulsed by the actions of certain past clergy” and “remains steadfast in support of the victims who have suffered and pray for their continued healing.”

The NFL will monitor the situation

NFL commissioner Roger Goodell has sweeping power to punish teams, owners, executives, coaches, staff and players under the league’s personal conduct policy. The policy prohibits “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” Owners can be separately punished under Article VII of the league constitution. Article VII enables Goodell to suspend owners and fine them up to $500,000 for “conduct detrimental to the welfare of the league.”

Goodell and NFL leadership likely have several concerns about the Saints’ involvement in the Archdiocese litigation.

First, the league may be worried about the public relations fallout of a team assisting an organization that is implicated in a child abuse scandal. The league expends considerable resources in marketing itself as caring about children and their well-being. The league also receives significant revenue from sponsors and broadcasters who may be less interested in a partnership with a league where one of its teams supplies advice on a child abuse scandal. The Saints have arguably undermined league efforts.

Second, the league probably objects to Saints employees using their work email accounts to act as a de facto crisis communications firm. Emails from Saints’ accounts contain the NFL’s insignia. Even if the emails are not from NFL officials or the league office, the NFL’s brand and identity are invariably implicated in those emails. If Saints employees wish to moonlight as strategic advisors, they ought to use Gmail or another non-work email service.

Third, if the league hasn’t already seen the “confidential” emails, the league may wonder what exactly they say. The Saints’ desire to keep them confidential invites speculation as to whether the emails contain statements that could damage the reputations of Saints officials or the franchise itself. We all know that people can sometimes be glib and insensitive when writing emails and texts. In the context of a child abuse controversy, that type of off-the-cuff writing style could prove very offensive.

Fourth, and similarly, the league likely has reservations about the prospect of Saints employees having to testify in a clergy abuse case. Even though the Saints’ involvement is about communications, it’s not a case the NFL would want to see team executives partake in.

For now, expect the NFL to monitor the situation and not—yet—punish the Saints. The league, though, will no doubt be watching for developments.

Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.