The non-disclosure agreement at the center of a civil sex-trafficking suit former WWE employee Janel Grant filed last week against WWE, company founder Vince McMahon, and former executive John Laurinaitis has significant issues that could make it unenforceable, according to experts.
The issues are possibly academic in Grant’s case, as in her lawsuit, she says that McMahon didn’t pay her all of the hush money he agreed to pay her in exchange for her signing the NDA, which would almost certainly make the contract void. If similar language was used in NDAs other people signed, though—something a person familiar with the case says is a reasonable inference—they may be able to set aside the agreements.
Videos by VICE
Such a development would be potentially catastrophic for WWE and McMahon, who the Wall Street Journal reported today is at the center of a federal criminal sex-trafficking investigation. Further complicating the issue, and potentially increasing McMahon’s legal exposure, is that according to a person familiar with the situation, McMahon secretly had the NDAs drafted and entered into them without WWE’s knowledge—which is why, when the company became aware of his hush money payments, it had to issue revised earning statements.
As VICE News reported yesterday, Laurinaitis’ lawyer, Edward Brennan, denies the allegations in Grant’s suit, which include rape, but asserts that his client, like Grant, is a victim who was acting under McMahon’s coercive control. This would seemingly complicate potential avenues of criminal and civil defense for McMahon, who has denied the allegations in Grant’s suit and said “I intend to vigorously defend myself against these baseless accusations.”
Brennan said “We will go where the evidence leads” when asked if other WWE executives were involved in or aware of what Grant’s suit depicts as McMahon’s trafficking scheme.
Do you know something we should know about Vince McMahon’s conduct in WWE? Contact reporters covering sex trafficking at tim.marchman@vice.com or anna.merlan@vice.com. For extra security, download the Signal app to a non-work device and text us there at 267-713-9832.
According to the Journal, at least four women who had been signed to NDAs were named in a grand jury subpoena. Among the women named were a “former WWE wrestler who said McMahon coerced her into giving him oral sex” and “a former WWE employee who alleged the head of talent relations at the company at the time, John Laurinaitis, demoted her after she broke off an affair with him”—both of whom the Journal previously reported to have agreed to seven-figure settlements with NDAs attached.
An NDA cannot be used as a shield to prevent a victim from bringing criminal charges or speaking to investigators. If these women or others desire to speak out in public or bring civil suits, though, it’s not clear that an agreement like the one Grant signed would prevent that.
Carrie Goldberg, a lawyer who represented victims of Harvey Weinstein, called the document “poorly drafted.” (Weinstein used NDAs to silence some of his victims for at least two decades, and hid some of the payments he made to women by having them come from his brother’s bank account.)
Goldberg says the central problem is the agreement’s lack of specificity. Her analysis matches that of Grant’s lawyers, who argue in the suit that the NDA should be voided because the language is so broad that it could prevent her from listing WWE on her resume.
“The NDA makes references to confidentiality, but there’s no definition of what to be confidential about,” said Goldberg. “It’s very vague. Usually there’s super-specific information about what to be confidential about.”
When asked what they understand the agreement to actually cover, a spokesperson for TKO, the parent company of WWE and the UFC, declined to comment, citing ongoing litigation.
Goldberg noted other issues with the NDA, among them that the copy Grant filed in federal court in Connecticut wasn’t actually signed by McMahon in either his personal capacity or role as then-chair of WWE; normally, all parties would receive an executed copy of the contract. According to a source familiar with the matter, though, the contract was in fact executed, with McMahon secretly signing on both his behalf and that of WWE after seeking counsel from his longtime attorney, Jerry McDevitt, a seeming conflict of interest Goldberg called “bizarre.”
(Neither the retired McDevitt nor the firm he worked for, K&L Gates, responded to questions about the apparent conflict of interest and whether McDevitt was paid by McMahon or WWE.)
Jodi Short, a professor at UC Law San Francisco who’s studied NDAs, believes the agreement is invalid on its face—but that this in practice may not necessarily mean much.
“It is my considered opinion,” she wrote in an email to VICE News, “that NDAs such as the one you sent me are unenforceable under common law contract doctrine. But there is very little case law squarely on point, and litigating such a case would expose an individual to enormous cost and litigation risk. That’s why most people end up silenced by NDAs even if, technically, they’re not worth the paper they’re written on. It’s not just the paper. It’s paper backed by an extreme asymmetry in resources between the two parties.”
Goldberg agrees, and points out that survivors don’t owe debts to society. It may be that an NDA is worthless as a matter of legal theory, but proving that in court is a potentially arduous process without a certain outcome that could define a survivor by the worst thing that ever happened to them and incur ruinous expense.
Julie Roginsky is a former Fox News Channel host who became one of the first to sue the station over sexual harassment and was, and is, herself bound to silence by what many could consider an overly broad NDA; she’s a cofounder of Lift Our Voices. She points out that any other issues aside, the NDAs could be voided by legislation currently being considered in Connecticut that would ban workplace NDAs, potentially retroactively. “I’m hoping the Vince McMahon example spurs the Connecticut legislature to do the right thing,” she said.
Ultimately, her thoughts are with survivors who have found themselves in the “incredibly psychologically lonely place” of being unable to speak out.
“You can’t,” she said, “confide in anybody—not your friends, not your family, not your priest, not your rabbi, not even your therapist—about what happened to you. So you can imagine that that becomes a hugely psychologically damaging place to be.”
