As new reports by The New York Times and Fox Sports portray Florida State as impeding investigations into the alleged misconduct conduct of Jameis Winston and other football players, the school has reportedly informed Winston that he will face a disciplinary hearing into allegations that he raped a fellow Florida State student in December 2012.
To date, Winston has avoided any finding of fault. In December 2013, State Attorney Willie Meggs announced that Winston would not be criminally charged with sexual assault. While the statute of limitations on charging Winston will not expire until 2017, there is no indication at this time that law enforcement plans to re-open the case.
Florida State’s disciplinary hearing would examine whether Winston, who has not been charged by the school with any misconduct and who played for the Seminoles on Saturday against Syracuse, violated university code of conduct rules related to sexual conduct.
According to ESPN.com, the disciplinary hearing into Winston would employ an unconventional method whereby three individuals who are not affiliated with Florida State but who have been picked by the university would be eligible to evaluate Winston. Winston and his accuser would each be able to strike one of the three. Typically at Florida State, code of conduct hearings occur after a student has been charged and a committee of students, faculty and staff serves as judges. Florida State has proposed this alternative arrangement in light of the university’s own involvement in the scandal.
Winston has five days to notify Florida State’s Office of Student Rights and Responsibilities to begin the disciplinary process. As I explain below, Winston and his attorneys may be privately considering a radical option: Winston dropping out of school. He could then sign with an agent and begin preparations for the 2015 NFL draft. Alternatively, Winston could petition a Florida judge for an injunction against Florida State.
Upside of dropping out of Florida State
Winston’s participation in the university’s disciplinary process would carry great legal risk for him. A university disciplinary hearing would involve both fact-finding and testimony. Law enforcement or attorneys for Winston’s accuser could later attempt to subpoena these materials and use them against Winston. While a finding that Winston violated university rules would not mean that he broke any laws, the finding would likely be admissible evidence in a prosecution or civil litigation.
As noted above, Winston could still face criminal charges until 2017. Winston was only investigated for criminal conduct and not tried, meaning the Double Jeopardy clause of the Fifth Amendment does not protect him from being charged and tried. Winston thus has an incentive to prevent any new facts or testimony from emerging that might persuade a prosecutor or a grand jury to take a second look at what happened.
Winston also has an incentive to avoid the jurisdictional reach of Florida State. If Winston withdrew from school, he would move outside of the university’s jurisdiction and could not be forced to participate in a university disciplinary hearing. The same is true of any potential investigation by the Atlantic Coast Conference or the NCAA, which would lose its leverage over Winston -- his eligibility to play football for an NCAA member institution -- the moment he quits college football. These institutions could still conduct hearings into Winston and related decision-making by Florida State, but his absence would significantly limit their investigatory scope.
Winston has yet another important reason to drop out: He may later have an adversarial relationship with Florida State as a co-defendant. It is widely expected that Winston’s accuser will eventually sue Winston, Florida State and the Tallahassee Police Department. This litigation could place the three as co-defendants in the same lawsuit or as defendants in separate lawsuits. In either scenario, each would attempt to deflect fault away from itself and onto the other two. Should Winston testify in a disciplinary hearing, Florida State could later use those statements to pin the blame on Winston.
Winston should also be worried that Florida State will direct blame onto him as others investigate the university. Most significantly, Florida State is the subject of an ongoing probe by the Office of Civil Rights, an agency of the U.S. Department of Education, into the university’s compliance with Title IX. This federal investigation could lead to significant fines for the school, among other punitive measures. The NCAA could also investigate Florida State at any point and potentially issue sanctions, such as a reduction of scholarships. Florida State, in other words, has much invested in establishing a narrative that it properly handled the Winston case and that any fault for Winston’s conduct falls on the quarterback alone.
Downside of dropping out of Florida State
Dropping out of Florida State would obviously not be a “cost free” move for Winston. Critics would contend that Winston is admitting fault by sidestepping the university’s investigation. They would deduce that if he’s really innocent, he should be willing to answer questions about what happened the night he is accused of raping a woman. This critique might be unfair, but it would be very easy to make and would undoubtedly harm Winston’s reputation.
Seminoles fans, in particular, would be disappointed if not outraged with Winston should he quit on the team, which is currently ranked No. 1 in AP poll.
These types of reputational concerns are important considerations for Winston and his advisors. They know NFL teams are evaluating Winston as a possible top selection in the 2015 NFL draft and that companies interested in signing Winston to endorsement contracts are closely monitoring public perception.
Winston would also lose valuable development as a football player if he quits college football. The track record for players who missed significant time due to controversy before entering the NFL is not especially encouraging. Mike Williams and Maurice Clarett, for example, missed the 2004 college football season after Clarett unsuccessfully challenged the NFL’s eligibility restriction in court. While both players were drafted in 2005, neither met expectations, with Williams becoming a journeyman wide receiver and Clarett failing to make the Denver Broncos.
To be sure, Winston could forge a much more successful path in the NFL, and his agent would likely expend considerable resources to ensure that Winston stays in shape and develops his football skills. The agent, for instance, could hire former NFL quarterbacks and coaches to personally tutor Winston about what it takes to succeed in the NFL. Still, there are reasons to believe that a quarterback who has played only a little more than one season in college football would face an especially difficult transition to the NFL and the complex defensive schemes employed by NFL coaches.
Winston would also jeopardize his Heisman Trophy from last year if he drops out of Florida State. The Heisman Trophy Trust could revoke the trophy or at least ask for Winston to return it. Reggie Bush returned his 2005 Heisman Trophy after the NCAA determined Bush had received impermissible benefits while playing at USC. While loss of a Heisman Trophy may be fairly inconsequential to Winston, it would carry a stigma.
Hail Mary legal attempt: Winston could petition a court for injunction against Florida State
Winston’s attorneys, especially David Cornwell, have expressed outrage that Florida State has proposed an unconventional approach to investigating Winston. Rather than dropping out of school, Winston could petition a Florida judge for an injunction that would prevent Florida State from carrying out its disciplinary hearing. Winston would argue that the hearing would cause him irreparable harm and that the university cannot be an honest broker in evaluating his conduct.
Winston would stress that he has not been charged by Florida State and yet now faces a university disciplinary hearing. He would maintain that the hearing is designed to protect Florida State’s reputation and the continued employment of its administrators, not to find justice.
Alan Milstein, an attorney at Sherman Silverstein who has litigated on behalf of high-profile sports figures, believes that Florida State’s atypical investigation into Winston could pose significant legal consequences. “What is troubling about the Winston saga,” Milstein stresses, “is the extent to which FSU has such difficulty treating him as it would any of the students on its campus. First, it seems they tried to shield him from an investigation, and now they want to show they are policing their program, all in an effort to protect their considerable valuable brand.”
The problem for Winston petitioning a court for an injunction is two-fold. First, injunctions are rarely granted. Second, courts are generally deferential to university investigations, and a judge would likely tell Winston that he must first exhaust his internal appeals at Florida State before a court will consider his case.
Daniel Wallach, an appellate attorney with the Fort Lauderdale-based law firm of Becker & Poliakoff, P.A., agrees. “It would be highly unusual for a Florida judge to prevent an administrative hearing from occurring,” Wallach tells SI.com, “much less interfere with it while it is ongoing.” Wallach further notes that “courts typically do not review administrative proceedings -- which is what a state university disciplinary hearing essentially is -- until they are final and concluded. It would be shocking to me if a state court judge would enjoin these disciplinary proceedings before they even began."
Wallach doubts Winston could even satisfy the requirements of a temporary injunction, especially the requirement that it be in the public’s interest. “It is precisely in the public interest, “ Wallach contends, “to have FSU conduct and complete such an investigation."
Wallach also questions whether Winston could establish irreparable injury. "Whatever alleged harm that Winston and his attorneys claim would be visited upon him by the disciplinary hearing," Wallach argues, "is greatly outweighed by the harm that would be suffered by the alleged rape victim were FSU not to be permitted to conduct an investigation."
Regardless of how Winston chooses to proceed, it is clear this saga is far from over.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.