DC Attorney General’s lawsuit against NFL and Commanders makes creative use of consumer protection laws

The DC Attorney General has decided to go after the NFL and the Washington Commanders. In doing so, Karl Racine’s office will be making creative use of the District’s consumer protection laws.

I’ve reviewed the full 38-page lawsuit, which was filed on Thursday. The vast majority of the document contains factual allegations. At page 35, Racine begins to state the legal theories supporting the litigation.

The case arises from the Consumer Protection Procedures Act. Such laws typically relate to statements made about goods. For example, if the seller of toothpaste puts on the label “now including no shards of broken glass” and the product actually contains shards of broken glass, the CPPA would be violated. (There would be other potential legal issues, too.)

As to the Commanders and the NFL, the argument is that the product generated by the Commanders — NFL football — is marketed directly to DC residents, and that the defendants have engaged in practices that “have a tendency to mislead consumers” regarding the steps taken to eradicate a chronically toxic workplace.

The basic argument goes like this. By not being open and transparent and honest about the issues in the workplace and the investigation at rectifying those issues, consumers were lied to.

While I’m fully in favor of anything that forces the Commanders and/or the NFL to release Beth Wilkinson’s report, which the league specifically didn’t want and which surely still exists somewhere in her files, it’s difficult for me to regard DC consumers as victims of the NFL’s shell game. Perhaps it will be argued that, if the truth had come out, consumers would have boycotted the team. That nevertheless seems speculative, at best.

Moreover, allowing this type of action would give the DC Attorney General license to sue other companies that market goods and services to District residents based on corporate malfeasance unrelated to the inherent nature of the product. The argument, as applied to other companies, would go something like this: “If the truth had come out about this specific issue unrelated to the quality of the product, consumers possibly would have been turned off to the product.”

Look for the NFL to make a strong argument that Racine is misapplying his authority under the CPPA. As to the Commanders, a statement already has been issued welcoming the effort to get to the truth. The team’s far better legal position would be to argue that the consumer protection laws don’t apply to matters of internal management and governance of the business.

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