New on Sports Illustrated: What the Latest Allegations Mean for the Saints in the Clergy Child Sexual Abuse Case

The Saints allegedly helped the Archdiocese identify which clergy members ought to be named on a so-called “Pedophile List.”

The controversy surrounding the New Orleans Saints advising the Archdiocese of New Orleans in the matter of accused child predator George Brignac escalated this week when attorneys representing an alleged victim claimed the team helped the Archdiocese identify which clergy members ought to be named on a so-called “Pedophile List.” This list reportedly identifies at least 63 clergy members in the New Orleans area who are suspected (not proven) of preying on children during the 20th century.

The Archdiocese faces a high-profile negligence and fraud lawsuit in the Civil District Court for the Parish of Orleans. The lawsuit is brought by John Doe, the pseudonym of a man who asserts that Brignac assaulted him years ago when Doe was a child. The Archdiocese employed Brignac, now 85, as a deacon and teacher for more than a decade. Brignac was moved around schools despite multiple accusations that he fondled the genitalia of young boys. Last year Brignac was charged with aggravated rape of a boy under the age of 12 during the 1970s.

The Saints aren’t a party to the lawsuit and aren’t accused of any involvement in the management of clergy. The team is nonetheless implicated in the litigation because its officials advised the Archdiocese on media fallout. Team officials could become witnesses should the case go to trial.

As detailed by The MMQB, attorneys representing Doe

insist that Saints owner Gayle Benson and senior members of her franchise informally, but repeatedly, counseled New Orleans Archbishop Gregory Aymond and other Archdiocese members. Last year the Saints received a subpoena for emails, letters, direct messages, text messages and other correspondences between ownership, management and the Archdiocese. Court filings indicate that the Saints identified 305 relevant documents, of which the team marked 276 as confidential and thus not subject to disclosure.

Doe’s attorneys demand complete access to Saints-Archdiocese emails and texts on account of their relevance to Doe’s legal claims. While communications between clients, attorneys and paid consultants are often shielded from pretrial discovery (the process by which parties in a lawsuit are compelled to share evidence), courts are less likely to deem as “privileged” communications between a party and an informal third-party advisor.

On Wednesday, Doe’s attorneys—Soren Gisleson, Richard Trahant, John Denenea, Benjamin Sanders and Matthew Fransen—filed a memorandum in support of a motion by the Associated Press to be heard. The MMQB has obtained the memorandum, which argues that the Associated Press should be able to appear before the court “and present arguments as to whether there should be continued secrecy of documents that establish the collaboration between the Archdiocese and the Saints over certain aspects of the handling of clergy child sexual abuse claims.”

The Associated Press maintains that journalists and the public possess a legitimate interest in reviewing communications between the Saints and the Archdiocese. Those communications concern matters of public interest and public safety. Both the Saints and the Archdiocese oppose the motion.

In their memorandum, Doe’s attorneys assert that the Saints’ involvement in advising Archdiocese was more extensive and pervasive than initially indicated. The attorneys maintain that what began as a “public relations campaign” would later “evolve into something much more.” To that point, Doe’s attorneys contend that the Saints played a transformative role in compiling the Pedophile List. This means, the attorneys maintain, that the Saints:

• Knew of the specific allegations of sexual abuse against a priest.

• Had supporting documentation of the alleged abuse.

• Made a judgment call about whether those allegations by a particular victim against a named priest were, in its opinion, legitimate enough to warrant being mentioned on the Pedophile List.

If Doe’s attorneys are accurate, the Saints’ involvement extended far beyond furnishing public relations advice and dispensing media strategies. This new depiction portrays the Saints as intricately enmeshed in substantive choices related to the identification of clergy suspected of committing sexual abuse.

The attorneys also charge that the Saints have failed to fully comply with the subpoena because, among other things, “not a single text message was produced.” The attorneys likewise maintain that the Saints have misled the public—and perhaps the NFL—as to its role and behavior during the controversy. The Saints issued a statement last week insisting that the Archdiocese had reached out to various community leaders, including the Saints. This narration of past events claimed the Archdiocese solicited advice on how to best handle “the pending media attention that would come with the release of clergy names in November of 2018.” The Saints further stressed that the team advised the Archdiocese to be transparent and open.

According to Doe’s attorneys, the Saints’ statement contains several falsehoods. First, Doe’s attorneys maintain it was the Saints that initiated discussions with the Archdiocese, not the other way around. Second, Doe’s attorneys charge the Saints’ role went far beyond supplying advice to one that involved “actual involvement in the creation of the Pedophile List.” Third, the Saints are accused of “pressuring local news outlets to either run favorable stories about the Archbishop or feed radio programs a stream of Archdiocese favorable remarks.”

Doe’s accusations against the Saints are disturbing, but not yet proven. Attorneys for Benson and team officials will have opportunities to rebut the assertions and introduce favorable evidence. With that in mind, the NFL seems poised to take a wait-and-see approach. According to Daniel Kaplan of The Athletic, the league does not intend launch an investigation unless Saints emails (or texts) raise troubling information.

The “unless” is important, particularly in a litigation where the Saints aren’t in control of either the process or the parties. While the team’s interests generally appear aligned with those of the Archdiocese, attorneys for the Archdiocese are entrusted with defending the Archdiocese and its fiduciary interests—not preventing possible fallout for the Saints with the NFL.

With that in mind, the Saints would probably prefer that the Archdiocese reach a financial settlement with Doe (and with other purported victims) whereby Doe’s claims would be dropped and pretrial discovery would end. A settlement wouldn’t be unprecedented: the Archdiocese deployed that option with Brignac victims before. The longer the litigation goes, the greater the risk for the Saints that (1) sensitive emails and texts find their way into the hands of media and (2) Saints officials are forced to answer difficult questions while under oath about their relationship with the Archdiocese.

The NFL and commissioner Roger Goodell enjoy considerable discretion in deciding whether and when to a punish a team. Under both the personal conduct policy and Article VII of the league constitution, any conduct that undermines the league’s brand and image can trigger a range of punishments, including suspensions and fines of up to $500,000. The league can also elect to impose a punishment at a time of its choosing. In other words, just because the NFL reportedly isn’t investigating the Saints doesn’t mean that is a permanent state of affairs. A lot can change during a litigation.

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.