A Mulligan for Erica Herman: Will Tiger’s Wood Ex-Girlfriend Be Able to Nullify NDA Agreement under the Speak Out Act?
Maranda Phillips, Shadow Creek Golf Club (Nov. 23, 2018)
By: Maranda Phillips* Posted: 04/19/2023
Tiger Woods, is the most successful and one of the greatest golfers of all time.[1] A 15-time major champion, Woods on the course is a force to be reckoned with.[2] However, the golfer has been known to limit and control what the public knows about his life off the course.[3] Throughout his illustrious career, there have been few moments when his privacy bubble has been pierced.[4] A new chink in Woods’ armor occurred on March 6, 2023, when Erica Herman, Wood’s ex-girlfriend, filed a Complaint in the Nineteenth Judicial Circuit Court of Florida to fight a non-disclosure agreement (“NDA”) she signed when they began dating.[5]
Teeing Up the Claim
The pair met when Herman was a manager of his restaurant in Jupiter, Florida, and dated for six and a half years.[6] The recent lawsuit is associated with a $30 million lawsuit that Herman filed in October, claiming Woods violated an oral agreement where he allegedly promised to let her live in his house to support her.[7] Herman claims Woods’ agents of his trust got her to pack a suitcase and that she was going on a vacation.[8] When they arrived at the airport, the trust told her she was being kicked out of the house, and the locks had been changed.[9]
In response, Woods’ legal team stated that Herman was provided with temporary housing and money to find someone where else to live.[10] The legal team went on to say that the dispute should go to arbitration according to the NDA.[11] Now, Herman has a second shot at Woods in her new claim, arguing that the NDA should be unenforceable under the Speak Out Act.[12] Herman seeks guidance from the court as she is "unsure whether she may disclose, among other things, facts giving rise to various legal claims she believes she has.”[13]
Driving it to the Green: The Speak Out Act
In 2017, #MeToo became a cultural force after Hollywood’s infamous, Harvey Weinstein, was exposed by actresses for his unwelcome advances and sexual harassment.[14] Since then, #Metoo has continued to serve as a sign of empowerment for victims to unlock their vaulted stories and invoke change in the law.[15] Specifically, The Speak Out Act was a response to concerns over confidentiality provisions raised by the #MeToo movement.[16]
The Speak Out Act was signed into law on December 7, 2022, to help victims of sexual harassment or assault in the workplace.[17] The bi-partisan Act limits the enforcement of nondisclosure and nondisparagement provisions in pre-dispute agreements or contracts between employers and former, current, or prospective employees.[18] A nondisclosure clause is “…a provision in a contract or agreement that requires the parties…not to disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement.”[19] A nondisparagement clause is “…a provision in a contract or agreement that requires 1 or more parties…not to make a negative statement about another party that relates to the contract, agreement, claim, or case.”[20]
Putting it in: Will Herman’s Suit Prevail?
The Speak Out Act was not intended for romantic contexts, but its breadth may allow Herman to break her NDA with Woods.[21] The Act only applies to agreements entered before a sexual assault or harassment dispute arises.[22] Since Herman signed the NDA, she is not allowed to talk about her experiences with Woods, but if the NDA is moot, she could bring forward sexual harassment or assault claims.[23] On March 10, 2023, Woods’ legal team filed a countercomplaint, which asserts the complaint does not make any accusations of sexual harassment or assault by Woods.[24] Adam F. Sloustcher, a California employment attorney with Fisher Phillips explains, “[t]he filing suggests that she has information that could violate the NDA, and wants the NDA declared void because of the statute saying that an NDA preventing the sharing of information to support sexual assault or sexual harassment claims is illegal.”[25] As the story develops, it will be interesting to see how the Court interprets Herman’s claim and applies the Speak Out Act outside the workplace.[26]
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2024, Villanova University Charles Widger School of Law.
[1] See Jaime Diaz, What Made Tiger Woods Great?, Golf Digest (Feb. 15, 2023), https://www.golfdigest.com/story/what-made-tiger-woods-great-and-can-again-jaime-diaz-magazine (summarizing Tiger Wood’s legacy).
[2] See Doric Sam, Tiger Woods And More Highlights From 2022 World Golf Hall of Fame, Bleacher Report (Mar. 9, 2022), https://bleacherreport.com/articles/10029277-tiger-woods-and-more-highlights-from-2022-world-golf-hall-of-fame (“Woods has set numerous records, including spending 683 weeks as the No. 1-ranked golfer in the world and being named PGA Tour Player of the Year 11 times.”).
[3] See Jack Newsham & Katherine Long, A Superyacht Named “Privacy” And an NDA For His Personal Chef: Tiger Woods Longtime Obsession With Keeping His Life Private, Business Insider (Mar. 14, 2023, 2:32 PM), https://www.businessinsider.com/tiger-woods-nda-girlfriend-erica-herman-breakup-lawsuit-privacy-2023-3 (“Woods has cast his intense desire for privacy as an outgrowth of his natural shyness. At the height of “Tigermania” in the early 2000s, Woods could barely step outside without causing chaos.”).
[4] See id. (describing various times Tiger Woods faced public scrutiny).
[5] See Diego Areas Munhoz, Tiger Woods Case Tests Breadth of New #MeToo Nondisclosure Law, Bloomberg Law Daily Labor Report (Mar. 22, 2023, 5:30 AM), https://news.bloomberglaw.com/daily-labor-report/tiger-woods-case-tests-breadth-of-new-metoo-nondisclosure-law (reporting Woods and Herman signed the NDA after they began dating roughly six years ago).
[6] See Tom D’Angelo & Eric J. Wallace, Tiger Woods’ Ex-Girlfriend Fighting NDA, Cites Sexual Assault Law, Palm Beach Post (Mar. 9, 2023, 3:05 PM), https://www.palmbeachpost.com/story/sports/pga/2023/03/08/report-tiger-woods-ex-girlfriend-cites-sexual-assault-in-nda-fight/69985463007/ (explaining the pair’s history and life in Jupiter, Florida).
[7] See Brendan Quinn, Tiger Woods’ Ex-Girlfriend Seeking to Nullify Non-Disclosure Agreement, The Athletic (Mar. 8, 2023), https://theathletic.com/4288170/2023/03/08/erica-herman-tiger-woods-nda/ (stating Herman alleges she performed services that were “extensive” and “extraordinary” in light of the environment).
[8] See Rebecca Cohen, Tyler Lauletta & Azmi Haroun, Tiger Woods’ ex Says he Made Her Sign an NDA During Their Relationship. Now She’s Asking a Court to Throw it Out Based on Laws Applying to Cases of Sexual Harassment or Assault, Yahoo News: Business Insider (Mar. 9, 2023), https://www.yahoo.com/news/tiger-woods-ex-says-made-193012538.html (“[Herman] said in the suit that there was an oral tenancy agreement for the 6 years she worked for and lived with Woods, alleging that there were 5 more years left in the agreement.”); see also Alex Miceli, Tiger Wood’s Attorneys File Counterclaim Against Ex-Girlfriend Erica Herman, Sports Illustrated (Mar. 10, 2023, 5:53PM), https://www.si.com/golf/news/tiger-woods-attorneys-file-counterclaim-against-ex-girlfriend-erica-herman (stating Woods’ trust is a legal entity that controls his residence and Woods’ two children are the sole beneficiaries).
[9] See Bob Harig, Erica Herman Sued Tiger Woods in October After Being Locked Out of Their Shared Home, Sports Illustrated, (Mar. 8, 2023), https://www.si.com/golf/news/erica-herman-sued-tiger-woods-in-october-after-being-locked-out-of-their-shared-home (stating Herman claimed that trust working for woods persuaded by “trickery”); see also Quinn, supra note 7 (reporting Herman alleges trust agents removed her belongs and took $40,000 in cash).
[10] See Samantha Benitz, Tiger Woods Demands ‘Jilted’ Ex Erica Herman’s $30 Million Lawsuit Be Fought Behind Closed Doors After Denying He Kicked Her Out of The House, Radar Online (Mar. 13, 2023, 4:30 PM), https://radaronline.com/p/tiger-woods-demands-jilted-ex-erica-herman-fight-him-behind-closed-doors (detailing both parties’ complaints).
[11] See Munhoz, supra note 5 (explaining Herman’s claim).
[12] See id. (quoting Herman’s complaint); for further discussion on the Speak Out Act, see infra notes 15–20.
[13] See D’Angelo & Wallace, supra note 6 (quoting Herman’s complaint).
[14] See Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers For Decades, N.Y. Times, (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html (explaining Weinstein’s allegations); See generally Anna Brown, More Than Twice as Many Americans Support Than Oppose the #MeToo Movement, Pew Res. C’tr., (Sep. 29, 2022), https://www.pewresearch.org/social-trends/2022/09/29/more-than-twice-as-many-americans-support-than-oppose-the-metoo-movement (“The movement was founded by activist Tarana Burke, who coined the term ‘Me Too’ in 2006, but it gained widespread attention in 2017 when actress Alyssa Milano urged victims of sexual harassment and assault to share their stories on social media.”).
[15] See Jamillah Bowman Williams, Lisa Singh & Naomi Mezey, #MeToo as Catalyst: A Glimpse into 21st Century Activism, 2019 U. Chi. Legal F. 371, 374–375 (2019) (describing collective social action ignited by #Metoo).
[16] Kyle Bigley, The New Speak Out Act Voids Predispute Nondisclosures and Nondispargement Provisions, Katz Banks Kuman: Blog (Feb. 22, 2023), https://katzbanks.com/employment-law-blog/new-speak-out-act-voids-predispute-nondisclosure-nondisparagement-provisions (stating Speak Out Act responds to concerns of confidentiality provisions raised by the #MeToo movement).
[17] See John F. Birmingham, Jr., Speak Out Act Speaks (But Not Dramatically), Foley & Lardner: Labor & Emp. Persp. (Dec. 19, 2022), https://www.foley.com/en/insights/publications/2022/12/speak-out-act-speaks-not-dramatically (summarizing main takeaways from the Act).
[18] See Speak Out Act, Pub. L. No. 117-224, 136 Stat. 2290 (2023) (“Prohibiting nondisclosure and nondisparagement clauses will empower survivors to come forward, hold perpetrators accountable for abuse, improve transparency around illegal conduct, enable the pursuit of justice, and make workplaces safer and more productive for everyone.”); see also Robert T. Dumbacher & Keenan Judge, Speak Out Act Restricts Use of Non-Disclosure and Non-Disparagement Provisions, National Law Review (Dec. 23, 2022), https://www.natlawreview.com/article/speak-out-act-restricts-use-non-disclosure-and-non-disparagement-provisions (explaining SOA does not define “dispute” and creates ambiguity of circumstances where Act applies).
[19] See 42 U.S.C. § 19402(1) (defining nondisclosure clause).
[20] See 42 U.S.C. § 19402(2) (defining nondisparagement clause).
[21] See Munhoz, supra note 5 (detailing SOA’s application to the workplace).
[22] See 42 U.S.C. § 19404 (applying Speak Out Act with a respect to a claim under Federal, State, or Tribal law may occur on or after December 7, 2022).
[23] See Munoz supra note 5 (analyzing a private contract derived from a romantic relationship may fall under SOA’s vague language).
[24] See Natasha Dye, Tiger Woods Rejects Claims of Sexual Assault in Filing, Calling Erica Herman a 'Jilted Ex-Girlfriend', People (Mar. 13, 2023), https://people.com/sports/tiger-woods-lawsuit-rejects-claims-sexual-assault-filing-ex-girlfriend-erica-herman (reporting Woods’ lawyers say Herman is “making salacious and insidious implications” and there is not a “single reference to an allegation of sexual harassment or assault”).
[25] See id. (“[Herman is] not yet bringing the claims or allegations that she has, but she kind of is implicitly.”).
[26] See id. (summarizing Herman’s complaint and Speak Out Act).
