When NDAs Do Not Impress

//When NDAs Do Not Impress

When NDAs Do Not Impress

In the summer of 2012, McKayla Maroney was a household name across the United States whether you knew her from being a member of the “Fierce Five” U.S.A. Women’s Olympic team, watched her vault her way to a silver medal at the London Olympics, or laughed at the “McKayla is not impressed” meme as it plastered itself all over social media. While many poked fun at McKayla for not being impressed with her silver medal finish back in 2012, the Olympian is stirring public response once again but on a much more serious matter—the right to talk about abuse she suffered at the hands of Larry Nasser, the former U.S.A. Gymnastics team doctor who pled guilty to criminal sexual conduct last November.

As a part of a $1.25 million settlement with U.S.A. Gymnastics, McKayla signed a nondisclosure agreement (“NDA”) in December 2016 requiring her to refrain from speaking about the abuse she experienced at the hands of Nasser. When news of McKayla’s NDA surfaced, many took to social media offering to pay the fine McKayla would incur for speaking out. Although U.S.A. Gymnastics made a public statement on Tuesday, January 16, 2018, stating that they would not pursue any money from McKayla if she speaks publicly about Nasser, one Twitter follower asked the important question regarding McKayla’s NDA: “Can someone explain to me how signing a NDA agreeing to not report sexual assault, violent assault, or illegal act of any kind is a legal, enforceable contract?”

Courts have been clear that a contract for an illegal agreement is invalid. A contract is invalid for furthering an illegal agreement where the parties agree to undertake an act forbidden by law or the contract is so connected with an illegal or immoral purpose as to be inseparable from the obligations of the contract. In the majority of states, failure to report an illegal act is not a crime; however, a few states, such as Texas and Ohio, have laws that make failure to report certain types of crimes an actionable offense.

Additionally, a contract may be void if the contract goes against public policy. Contracts which tend to obstruct or interfere with the administration of public justice are contrary to public policy, and therefore, void. Examples of contracts that obstruct justice include an agreement to pay money as an inducement to suppress evidence or an agreement to not appear as a witness.

An NDA could also be invalid for being overly broad or for even being what the court considers “unreasonable or onerous.” Hutcherson Law recommends that before signing an NDA, be aware of what the contract exactly requires of you and for how long you may be required to withhold information. If you feel that an NDA is unreasonable, or even just makes you suspicious of the consequences of signing, the legal team at Hutcherson Law would be happy to help you navigate the pitfalls surrounding your contract.