Is Brett Farve’s Penis Discoverable?

Two massage therapists who worked for the New York Jets are suing Brett Favre for sexual harassment. These women contend that they were subjected to sexual harassment and discrimination and lost their part-time – very part time – jobs with the Jets after complaining about sexually suggestive text messages from the retired NFL quarterback during his two-year stint with the team.

Plaintiffs’ attorneys have used an underutilized tool – request for admission – to get concessions from Farve, a married man, that underscores that he inappropriately approaches female team employees and, perhaps more to the overall point, is an overall creep. Accordingly, they asked Farve to admit or deny he regularly solicited women for sexual encounters. As a part of this effort, they want details on the famous (alleged, I guess I should still say) photos of his penis that he sent to former Jets game hostess, Jenn Sterger.

Plaintiffs’ lawyer is pushing this angle, I suspect, for two reasons. First, it helps them prosecute the lawsuit. It is really hard to argue that texting a picture of your penis to a team employee is not some indicia of someone who would sexually harass New York Jets’ employees. I can’t see an argument that this is not discoverable.

But it is hard not to see a bigger picture. If you have a claim with little damages against a celebrity, what does the playbook call for? Make Farve and the team settle the case because of adverse publicity. The NFL remembers well the Isiah Thomas debacle and knows that the NBA did not appreciate the adverse publicity. Might the NFL push Farve and the Jets – and they have leverage with the Jets – to settle the case for more than the value of the case?
My guess is that is what we are dealing with here. I think the evidence in this case is pretty clear that you don’t want your daughter to marry Brett Farve. But is this a meritorious lawsuit that has real damages. I have my doubts. First, the Jets have said that the plaintiffs worked for the team for a combined total of only five days over two years, making $2,300 in all. So exactly what are the damages and would they be filing a lawsuit if (1) Brett Farve had not just been exposed as a – let’s be generous here – a man who comes on boldly and without provocation to women, and (2) he was not one the 10 best quarterbacks in history?
On top of this, there is apparently no evidence that the Jets were told that these women had a problem with Farve in the first place. You usually don’t retaliate if you don’t know about the alleged conduct. The Jets had a plausible reason for not calling these little used therapists: they moved their training facility. So the fact that someone else might have a meritorious lawsuit against this Packers legend does not mean that this claim has substance.

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