Kallas Remarks: Brett Favre/Jenn Sterger Legal Update

By Steve Kallas
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Much has happened in the last 10 days or so in the Brett Favre/Jenn Sterger saga. Little or no detail got out about Favre's meeting with the NFL a week ago Tuesday. But it came out this weekend that Favre had, indeed, admitted to leaving voice mails for Sterger back in 2008. He also denied to the NFL that he had sent pictures of his genitals to Sterger.

But then the story broke that Favre left another voicemail in June of 2009 for Sterger when he was in New York to tape the ill-fated Joe Buck show at the HBO studios. As will be discussed below, this may be interesting for statute of limitation periods. In addition, Ms. Sterger went out and hired the Long Island law firm of Larusso and Conway, better known for criminal defense work than anything else.

SO WHAT DOES IT ALL MEAN?

Deadspin.com broke the story and has been on it from Day 1. After the Favre meeting, the NFL sent an e-mail to A.J. Daulerio, who broke the story, requesting that he meet with the NFL to discuss where he got the voicemails and pictures from. Daulerio, who would never give up his source, caused another furor when, after news that Favre had admitted to sending the voicemails but not the pictures, countered on Deadspin with the fact that both the voicemails and the pictures of genitals were sent from the same phone number.

Just as interesting, according to the New York Post, the number of the voicemail sent in 2009 to Ms. Sterger (when Favre was in New York) was the same as the voicemails and pictures that were sent in 2008.

HERE'S THE LEGAL PART

We've discussed previously the various statutes of limitation that could apply in this case (see Kallas Remarks, 10/12/10). The main federal statute under Title VII for sexual harassment in the workplace has a 300-day statute which has already passed, even from June of 2009. However, assuming that Ms. Sterger was a Jets employee (as opposed to an independent contractor, also discussed at length in the prior article), this could possibly bring her within the two-year statute in New Jersey for sexual harassment in the workplace.

The interesting thing with respect to the June of 2009 voicemail is that, according to at least one published report, Ms. Sterger left the Jets in May of 2009, one month before the last (as far as we know) voicemail. So clearly, by June of 2009, if these facts are true, there would be no claim for harassment under a workplace statute based on the June of 2009 voicemail since Ms. Sterger had left the employ of the Jets a month earlier.

To sum up, Ms. Sterger may have a cause of action under the two-year statute of limitations in New Jersey for sexual harassment in the workplace (assuming she was an employee – no action under this statute if she was an independent contractor). She may also have a cause of action under a general harassment statute (where the statute of limitations is longer and there is no employee requirement)

WHERE DOES MS. STERGER STAND ON ALL OF THIS?

Hard to say. She's hired a lawyer and her agent has said she is still deciding what to do. If she were going to file a lawsuit of any kind, one would think, from a statute of limitation perspective, that she would have filed it by now. As for meeting with the NFL, she seems to be taking her time in deciding whether she will or won't. Finally, we haven't heard whether she actually felt harassed or humiliated through all of this (certainly she has become a well-known "personality" throughout the country). All we have heard from Ms. Sterger is a general "I don' roll like that" from the fact that Brett Favre is a married man and "old."

WHERE DOES THE NFL STAND ON ALL OF THIS?

Apparently the NFL doesn't feel that it can do much without the testimony of Ms. Sterger who, to this date, has not gone to the NFL to speak with them. Hard to see how the NFL could "discipline" Favre based on his admission that he left a few voicemails for Ms. Sterger. Obviously, the pictures are the things that could lead to a possible suspension of Brett Favre, not the voicemails alone.

It's hard to know whether this whole debacle has hurt Brett Favre's play. Certainly he was much better last year (33 TDs, 7 INTs) than this year (7 TDs, 10 INTs). But Favre, who played better last year than he had in a number of years before 2009, has reverted to his gunslinger mentality and it hasn't paid off for the talented (but 2-4) Vikings (who go to New England this week)

It would seem that, if Jenn Sterger continues to refuse to meet with the NFL, this investigation will go nowhere. Even if she does go in, unless it can be proven that those pictures were sent by Brett Favre, it says here that little or nothing will be done to Favre.

A concern of the league had to be a reluctance to suspend Favre while his record consecutive games streak remains intact. That (the streak) may be gone after this week unless Favre attempts to start with two fractures in the ankle area. Hard to believe that even Brett Favre could play a whole game under those conditions. But, hey, maybe he'll trot out for the first play, hand the ball off to AP and walk (limp?) off the field.

We will just have to wait and see what happens – on both fronts.