By MICHAEL MCCANN July 15, 2019
In the coming days, the office of NFL commissioner Roger Goodell will announce whether Kansas City Chiefs wide receiver Tyreek Hill violated the league’s Personal Conduct Policy. If a violation is found, it would mean that Hill engaged in conduct detrimental to the integrity of, or public confidence in, the NFL. Such “conduct detrimental” would reflect the possibility that Hill was in some way responsible for suspicious injuries suffered by his three-year-old son earlier this year, or that Hill undermined the league’s image upon media publication of a recording in which Hill tells former his fiancée, Crystal Espinal, that she needs to be “terrified” of him, or both.
The Hill situation is among the more difficult personal conduct policy decisions for Goodell, whose choices on conduct matters have often generated controversy and occasionally spawned federal lawsuits. With Hill, an incomplete set of facts coupled with ambiguous family circumstances are beyond the capacity of Goodell to clarify. If Goodell offers factual conclusions about how Hill’s son was injured, Goodell would be vulnerable to criticism that he overreached and possibly interfered in an on-going legal matter.
The commissioner will likely tread carefully. As detailed below, he has much to consider in judging Hill, whom the Chiefs have separated from team activities pending Goodell’s decision. The Chiefs expect a decision by the start of training camp on July 23.
Criminal justice system is unable to determine responsibility for the injuries
As a starting point, if Goodell concludes that Hill caused his son’s injuries, the commissioner would have reached a different conclusion than law enforcement has.
After investigating and failing to determine how the son was injured, the Overland Park Police Department and the Johnson County District Attorney’s Office dropped the investigation from their list of active engagements. It appears that some members of law enforcement believe that either Hill or Espinal is probably responsible for their son’s injuries, but law enforcement can’t establish which of the two is at fault.
It’s worth noting that law enforcement could have charged both Hill and Espinal with criminal conspiracy and hoped that one of them would have then provided crucial evidence or testimony. The logic of charging both would have been that the injuries were likely the result of an intentional or reckless assault, rather than a mere accident, and that the son was under the care of Hill or Espinal, or both, when the injuries occurred. There is also reason to believe that the son was generally at risk while in the home. In April, the Kansas Department for Children and Families (DCF) temporarily removed him from the custody of Hill and Espinal and placed into the care of others. Kansas DCF has an on-going investigation into Hill and Espinal’s parenting.
In short, there have been red flags that the son lacks safety while under the care of Hill and Espinal. Yet no criminal charges have been brought against either Hill or Espinal. This suggests that there is genuine uncertainty on the part of law enforcement, who has investigatory powers that far exceed those of Goodell, as to how the son was injured.
Significance of Hill’s denials and continued family turmoil
Hill has also repeatedly and consistently denied that he caused his son’s injuries. While a denial could be a lie—even repeated and finger-waving denials can be lies—Hill, it seems, hasn’t contradicted himself. A consistent account is not necessarily an accurate one, but if Hill’s chronicle of events had changed, there would be more reason to doubt him. It’s unclear what Hill told Goodell and NFL investigators behind closed doors. Assuming Hill’s account has remained consistent, he would not have undermined his own narrative.
This is apparent on the controversial audio recording of Hill and Espinal (more on that controversy below). On the recording, Hill repeatedly denies that he caused an injury to his son’s arm. When pressed by Espinal as to why the son would tell her that “Daddy did it,” Hill maintains that he “didn’t do nothing.” Hill also did not admit to using a belt to discipline his son (though he didn’t deny it). Hill instead blames Espinal for the apparent mistreatment of their son, claiming that she uses the belt on him.
Which of the two parents injured the son? Or was it both? Or somehow neither? It’s not clear based on what is known. This is a family situation that is happening behind closed doors and that has proven challenging to objectively assess.
This situation is also clearly in flux. Earlier this month, Espinal filed a petition in Johnson County District Court that would establish Hill’s paternity of her newborn twins. She also seeks to set terms for custody and child support. In the petition, Espinal indicated that she has never been married to Hill and does not intend to be married to him. Espinal’s expressed lack of intention to marry Hill is consistent with their engagement being off.
Goodell has the right to reach his own conclusions—just ask Ezekiel Elliott
Despite what is written above, Goodell can do what he wants. He’s authorized under Article 46 of the collective bargaining agreement to reach conclusions that are inconsistent with, or that even contradict, those of law enforcement (or of scientists or journalists).
He is the decider.
This was abundantly clear in 2017 when Goodell suspended Dallas Cowboys running back Ezekiel Elliott for six games. Elliott had been accused of battering his ex-girlfriend but was never charged with a crime. Elliott also maintained his innocence throughout the controversy. There were also questions about the accuser’s truthfulness.
Goodell, however, reached the conclusion that there was sufficient evidence to find Elliott at fault. Goodell relied on the NFL’s own investigation, even though league investigators—unlike law enforcement and court officers—are private citizens and thus lack the power to subpoena evidence or compel witnesses to testify under oath. One might surmise that a law enforcement report is a more reliable and authoritative document than an NFL report, but Goodell is empowered to see it differently.
The Elliott matter also illustrated that law enforcement and the courts require higher burdens of persuasion to find a person at fault than does Goodell. Probable cause—which generally means a sufficient justification, based on known facts and circumstances, to believe that a person committed a crime—is needed to charge someone. Certainty beyond a reasonable doubt is needed to convict them. Meanwhile, a preponderance of evidence is required to prove that someone is liable in a civil trial.
So, what’s the relevant standard for fault under Article 46? That’s up to Goodell. He’s able to judge matters on a case-by-case basis.
Goodell could thus decide that even if It’s uncertain whether Hill is the direct cause of his son’s injuries, the seemingly chaotic environment of Hill’s home life, for which Hill presumably deserves some blame, placed his son at risk. This “Hill is responsible for the bad situation at home” type of justification could be used by Goodell to justify a punishment related to the son’s injuries—even if Goodell is, like law enforcement, unsure how those injuries occurred.
Or perhaps Goodell will decide it would be unwise on his part to judge a domestic matter of which law enforcement is unsure. To that point, the fact that Goodell has massive discretion to find that Hill is in some way responsible for his son’s injuries doesn’t mean that Goodell will invoke that discretion.
Why Goodell could punish Hill for Hill saying, “You need to be terrified of me too, b----.”
Goodell might be more inclined to find Hill at fault for his threatening comments to Espinal.
On the recording, Hill grimly warns her, “you need to be terrified of me too, b----.” This would be a menacing remark without any history between Hill and Espinal, but the relevant context makes it far more terrifying.
Four years ago, Hill pleaded guilty to domestic assault and battery charges after he strangled Espinal. She was eight weeks pregnant at the time. Hill also admitted to hitting her in the face and stomach.
Goodell doesn’t need to offer a view on whether Hill is responsible for his son’s injuries to find that Hill violated the personal conduct policy by threatening Espinal. The NFL’s image with fans, broadcasters and sponsors is tarnished when its players threaten violence, particularly if the player has a specific history of violence against the person he threatens.
Hill, however, might challenge that reasoning by stressing that he (apparently) no longer admits to battering Espinal four years ago. During the longer, 11-minute, 27-second version of the recording, as aired earlier this week by 610 Sports, Hill asserts that Espinal lied about him in 2014:
“You f------ ruined my life when you lied on me in 2014. I’m still not over that . . . I [didn’t] touch you in 2014 . . . And if you want to rewind that night, we can rewind that night too (bleeped). You [were] in my house, and did I pick you up and slam you? Hell no. I picked you up and put you out my door and after that you left.”
The problem for Hill is that, as part of a plea deal, he admitted under oath to what he now denies while not under oath. Goodell, presumably, is more inclined to believe what Hill told the court than what he now says in private conversations where there is no legal risk to lying. This dynamic would be relevant if Goodell decides to punish Hill for his recent threat against Espinal and base that punishment at least in part on the context of the 2014 incident.
Could Hill sue KCTV5?
One related issue is the media’s reporting of suspicions that Hill injured his son. In April, KCTV5 published a roughly 500-word story, authored by Angie Ricono, that contained an accompanying video report. The story and video drew from an audio recording that the station had obtained through an unnamed source.
The date of the recording is uncertain, but it is thought to have occurred in early March while Hill and Espinal were walking in Dubai International Airport. Ricono’s story indicates that the recording was intended to serve as an “insurance policy” for Espinal pending how her husband addressed their son’s injuries. This implies that Espinal either made the recording or authorized it. It does not appear that Hill knew he was being recorded.
KCTV5’s excerpts focused on the accusations of child abuse, and how Hill and Espinal discussed them. As detailed above, Hill rebuffed Espinal’s insinuations that he hit their son. One excerpt also included the “you need to be afraid of me too, b----” remark.
The excerpts omitted Hill and Espinal discussing the 2014 incident, including Hill’s insistence that Espinal lied about it. This was a conscious decision by KCTV5 news editors. They had several choices on how to handle the recording. For instance, they could have focused their report on the recent controversy but still made the full recording available to viewers and readers on their website.
In an interview on Wednesday, KCTV5 news director Casey Clark explained his station’s reasoning. He maintained that the 2014 incident was no longer at issue and that comments by Hill and Espinal about it were not connected to the recent injury suffered by their son. “Our feeling on it,” Clark expressed, “was that 2014 had been asked and answered.” Clark continued by stressing, “He pleaded guilty. And he, up-to-this-point, had never publicly claimed anything having to do with him being falsely accused, wrongly prosecuted—he pleaded guilty . . . it did not have relevance.” Clark added that publishing the raw recording could have posed unintended consequences, including that Espinal “would probably know” who shared the audio with KCTV5.
Some have wondered if KCTV5’s editing of the recording in April unfairly placed Hill in a hostile spotlight. If viewers heard Hill insist that Espinal has repeatedly lied about him, the public might have been more inclined to believe Hill this time around. The fact that Hill is heard disputing an infamous incident in his life also seemed newsworthy.
It’s fair to speculate that had KCTV5 made the full recording available, the public—and, by extension, the NFL and its sponsors—might have reacted differently in April. It’s impossible to since it didn’t happen then and can’t happen now.
Still, for at least four reasons, don’t expect Hill to pursue any kind of legal action against KCTV5.
First, if Hill sues KCTV5, he opens himself up to pretrial discovery. Attorneys for KCTV5 would welcome the opportunity to question Hill, under oath, about topics relevant to the recording. Those topics would include his relationship with Espinal and his son, as well as the specific incidents at issue—the injuries to the son and the 2014 incident involving Hill and Espinal. They would also demand he share emails, texts and other information he might prefer to keep confidential.
Second, the excerpted report is not defamatory. Defamation requires an untrue statement. While KCTV5’s report removed portions of the recording, it did not add content that was untrue. Courts are also very skeptical of “defamation by omission” claims where the theory of liability is based on what is not said, rather than on what is said. This is particularly true in cases where the litigant is a public figure, as is the case here: Hill would need to prove “actual malice” by establishing that KCTV5 either knowingly published false and defaming information about him or had reckless disregard for the information’s truth or falsity. While KCTV5 can be criticized for not making the entire audio available on its website, the station did not edit the content so that it became false.
Third, and consistent with the First Amendment, news companies routinely paraphrase and excerpt sources. This is how reporting normally works. Bound by a programing schedule and necessary commercial breaks, TV newscasts can only offer so much time to a particular story. Similarly, news articles are constrained by word limits and by pragmatic considerations. For instance, a few weeks ago I wrote a Sports Illustrated story on an 88-page complaint filed against Zion Williamson for breach of contract and several other claims. My story excerpts the most newsworthy portions of the lawsuit to build a story that is (hopefully) relevant to readers and crafted in a way that is informative, understandable and digestible. Along those lines, the story isn’t anywhere near 88 pages long (if it was, I suspect readers would have clicked on another website), so it admittedly doesn’t cover everything in the lawsuit. Whether KCTV5 picked the most appropriate excerpts in its coverage of Hill can certainly be debated, but its decision to excerpt is not atypical or inherently suspect.
Fourth, to the extent Hill would have a plausible legal claim, it would be for “false light.” In media law, false light often concerns a news report that does not contain false information but is constructed in such a way that it misleads readers into false conclusions that are, in turn, damaging to the plaintiff’s reputation. For instance, a news story about one spouse shooting another and neglecting to mention, until several paragraphs in the story, that it was an accidental shooting has led to false light litigation against media companies.
Hill would likely struggle to prove false light. While he would have a point that the excerpted portion of the recording does not contain all of his denials, particularly with respect to the 2014 incident, it does contain Hill repeatedly denying the assertion that he abused his son—which is the subject matter of the current controversy.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.
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