By Steve Kallas
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WHAT IF THESE ALLEGATIONS AGAINST BRETT FAVRE ARE TRUE?

You’d have to be living under a rock not to know that future Hall of Famer Brett Favre has been recently accused (while a member of the New York Jets in 2008) of sending, among other things, various text messages and inappropriate photos to Jenn Sterger, who worked for the Jets in 2008 up until May of 2009.  Favre, of course, is innocent of any and all charges unless a civil and/or criminal complaint is filed against him at which point he, presumably, would vigorously defend himself until some kind of adjudication or settlement is reached (unless it turns out not to be Brett Favre, he’s already lost in the Court of Public Opinion).

More and more facts are coming out daily, so we will go forward with the facts as they are just prior to the big Monday night game between the Jets (Favre’s old employer) and the Vikings (Favre’s present employer).

EMPLOYEE v. INDEPENDENT CONTRACTOR

An interesting distinction that has to do more with the potential liability of the New York Jets than with the potential liability of Brett Favre.  The reason that info “leaked out” on Monday is probably so that the Jets can wash their hands of the whole fiasco (or, at least, attempt to).  Just because one is called an “independent contractor” doesn’t necessarily make it so.  It would be just another issue to hash out in a lawsuit, if and when one is filed.

Some factors, by no means all-inclusive, would include: Does the worker get employee benefits? Does the worker supply his or her own tools or other means to perform her job? Is the worker’s work an integral part of the business? Is the work temporary or permanent? Does the worker rely on this job as a sole source of income?  There are many others depending on the situation.

While it is hard to believe that Jenn Sterger was an “employee” of the Jets, that is a question that remains to be answered in the future.

SEXUAL HARASSMENT IN THE WORKPLACE?

Another fascinating question.  However, because of the employee/independent contractor issue and the applicable statutes of limitations, most of these claims can’t be brought at this late date.  Any federal claim for sexual harassment in the workplace under Title VII of the Civil Rights Act of 1964 can only be brought by an employee (as opposed to an independent contractor) AND such a claim must be filed with the EEOC (Equal Employment Opportunity Commission) within 300 days of the last date the sexual harassment occurred.  Whether Ms. Sterger is held to be an employee or not, these events apparently occurred more than 300 days ago and would probably be time-barred in late 2010 (there has been no public statement about any action already having been filed anywhere).

There could possibly be a straight state court action in New York or New Jersey (question: what if the phone messages, text messages, photos etc. were sent from New York to New Jersey or New Jersey to New York?  There may be jurisdiction in both states).  Assuming this took place in New Jersey, Ms. Sterger could file a state court employment harassment claim but there would still be an employee/independent contractor issue.  Arguably, she could just file a straight civil action in a New  Jersey state court (maybe New York state court?) against Brett Favre (whether she’s an employee or not would not be relevant in such an action).  That statute of limitations would be longer and the employee/independent contractor issue would not result in a dismissal.

WHAT WOULD BE Ms. STERGER’S DAMAGES?

If such a suit did go forward (assuming no settlement, something one would think Brett Favre will be encouraged to do if there is a lawsuit), and even assuming Ms. Sterger could win a jury verdict, what would be her damages?  To date, there has been no claim that she was emotionally hurt and, if anything, she has become more, not less, well-known and, arguably, popular, in the community at large.  Could this be a verdict where a jury says “you win and we will give you a dollar in damages”?

Of course, it says here that if such a case were to be filed against Brett Favre, he would be advised by his attorneys to settle it for some real number that will make Ms. Sterger go away (with no admission of liability on Favre’s part, of course).

FINALLY, HAS BRETT FAVRE COMMITTED A CRIME?

Another fascinating question and we will leave you with one potential crime in New Jersey (arguably there are others depending on the actual facts).  Under the New Jersey Statute for Harassment, “a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a.       Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm:”

This crime is punishable by a fine and/or up to 30 days in jail.  However, the statute of limitations for this crime is also one year so, unless a complaint was filed with the police some time in 2009 (again, highly unlikely), and if these calls and pictures and texts were sent during the 2008 NFL season, no criminal complaint could be filed for harassment unless they happened within the last year.

This should all shake out in the next few weeks or months, including a possible NFL suspension after the NFL completes the investigation that was recently started, according to the Commissioner’s office.