Michael Irvin Lawsuit: ‘Hogwash’ Vs. NSFW 'He Said/She Said' - 5 Legal Questions

Cowboys legend Michael Irvin is embroiled in what has become to the layman a "he said/she said'' court battle with Marriott. Prominent Dallas attorney Dave Wishnew provides answers to five key questions about the case.

DALLAS - Dallas Cowboys legend Michael Irvin is embroiled in what has become to the layman a "he said/she said'' court battle over his alleged misbehavior in an Arizona hotel lobby at the start of Super Bowl Week.

Said Irvin: "I know I didn't do anything wrong ... It's just sickening."

Said Marriott International in a new filing: Irvin said things of a graphic sexual nature to a female Marriott employee and that she "pulled her hand away,'' "tried to back away as Irvin continued moving toward her'' and was "wanting the interaction to end."

Countered Irvin lawyer Levi McCathern: “total hogwash.”

Dave Wishnew, a prominent Dallas attorney and partner at Crawford, Wishnew and Lang, is a litigation expert who has no direct ties to this case but who is nevertheless highly qualified to answer what we believe are five key questions about the legal conflict, which includes Irvin's $100 million defamation lawsuit against the hotel chain.

1- Marriott has the supposed smoking gun - the video of Irvin’s alleged misbehavior. If it’s “smoking'' - and demonstrates in any way the supposed lewd comments and/or behavior of Irvin - why aren’t they abiding by the court order to release?

Wishnew: "Marriott tried to avoid producing the video, citing privacy concerns for the employee and the hotel guests in the video. The judge sided with Irvin and required the video and related records produced but allowed Marriott to take “reasonable measures to protect the employee’s identity as necessary at this early stage of the case.”

"On Friday the judge again ordered Marriott to comply.

"If the video showed damning evidence of Irvin doing something improper to the female employee, then logic suggests that Marriott would not be fighting as much against providing the video to Irvin.''  

2- Let’s suppose for the sake of argument that Irvin “said” something inappropriate, or you did, or I did. (Marriott position is that Irvin said things of a sexual nature to the employee.) That is indeed central to the allegation here. Is that - saying something - really actionable?

Wishnew: "Saying or writing something that is false and causes harm is actionable; it’s called 'defamation.' Here, the question is what the female employee told Marriott that Irvin said, and whether Marriott conducted a proper investigation of the facts before communicating with the NFL and ESPN networks (which suspended him from appearing on-air during Super Bowl Week).

"Marriott’s actions, both investigating the employee’s allegation and what Marriott communicated to the NFL, ESPN and others about the incident, will be the core of this case. If Marriott failed to do a proper investigation and recklessly told the NFL and networks false statements about the incident, Marriott has exposure.'' 

3- Did ESPN and NFL Network err in basically suspending Irvin? Oh, and why doesn’t he sue his employers?

Wishnew: "It’s too early to say whether ESPN and NFL Network made a mistake that would be actionable in court. It could be that legally Irvin did nothing wrong and has a good claim against Marriott.  Or it could be because of ESPN or NFL Network company policies or a clause in his contract, the networks were justified in suspending him. 

"Plus, ESPN and NFL Network are not only sources of income for Irvin, but provide him an international platform that keeps him in the national spotlight, builds his brand and helps him get other opportunities. Suing and publicly alienating your current employers that put you on this platform is bad for Irvin’s business and future contracts with the networks.'' 

4- Irvin says he wants his accusers to “suffer the consequences” when proven wrong. Can that mean $100 million? Or is that a number chosen for the sake of round-number drama?

Wishnew: "This is a number picked to grab headlines. Levi - a friend and respected lawyer I’ve known for years - wanted the spotlight to put pressure on Marriott … and it’s worked so far. 

"But this is not a $100 million case or even close. 

"Proving damages in these types of cases is difficult; while Irvin should be able to show direct financial losses for not being on TV during that week, the damage to his reputation will be difficult to prove. Should this case get to trial, Irvin will rely on experts to provide their opinions to put dollar amounts on the different types of damages he can potentially recover, including past and future loss of income, harm to his reputation, and injuries to his emotional health. 

"But the vast majority of cases like this never get to trial, and I doubt this one will.''

5- How common is this … and how do we - legally and otherwise - juggle both our obligation to take seriously the supposed victim … and an obligation for the accused to be believed - with Irvin comparing this a racist lynch mob hanging?

Wishnew: "This is an issue that people and companies face every day. We regularly counsel our clients on similar type of predicaments that happen at the workplace. A good rule of thumb is to take a close and careful look at all of the facts, and make a judgment call on a case-by-case basis--after getting advice from your lawyer, of course.

"It’s important to keep in mind that while news articles, and press conferences, can have some or even most of the facts, the actual details of the case and the strengths or weaknesses of the claims may be very different than the public perception.''

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