Analyzing potential civil lawsuits against Winston, Tallahassee PD, FSU

Jameis Winston avoided criminal charges for rape, but could soon be facing a civil suit from his accuser.

In an interview with ABC News on Thursday, the attorney for a Florida State University student who has accused Seminioles quarterback Jameis Winston of rape says her client intends to file civil lawsuits against Winston, the Tallahassee Police Department (TPD) and possibly FSU. Patricia Carroll insists she wants "heads to roll" and reserves her harshest words for the TPD, stressing "you cannot have law enforcement that is not held accountable." It is unclear when Carroll will file the lawsuits, as her client has until 2016 to sue, but the expectation is sometime soon. Winston, who led his team to the BCS Championship and won the Heisman Trophy, was not charged in December. His storybook season on the field has draft experts predicting he'll be the No. 1 pick in the 2015 NFL draft.

Here are the key legal and business issues to keep in mind as the civil litigation plays out.

Potential civil claims against Winston

If the woman accusing Winston sues him, her identity would be revealed. She would need to convince a jury that Winston probably harmed her in violation of Florida civil law. The key word is "probably" because the burden of proof in civil cases is a "preponderance of evidence" or "more likely than not." This burden is substantially lower and easier to show than the burden in prosecutions, where the government must prove "beyond a reasonable doubt." The distinction between civil and criminal burdens is mainly due to potential punishments: while civil cases typically threaten the defendant with having to pay money, criminal cases threaten to take away the defendant's freedom.

The most likely claims against Winston are battery, false imprisonment and intentional infliction of emotional distress. The accuser's legal theory would be that Winston battered her by having intercourse without her consent and, while battering her, imprisoned her in a bedroom. The experience would have been so emotionally damaging that it caused her to suffer severe and sustained mental anguish.

In a trial, Winston and his accuser would offer contradictory accounts about whether she gave consent and perhaps whether at some point she revoked consent. In addition, jurors would hear corroborating testimony from others who were nearby, such as friends and roommates.

Why a lawsuit would threaten Winston and FSU football

Even if Winston is 100 percent innocent, his attorneys will probably encourage him to offer the accuser a generous settlement with hopes that she accepts and doesn't file a lawsuit. Defending a lawsuit is time-consuming, stressful and distracting -- not to mention expensive. For a player who's primary focus over the next year is presumably to 1. win another national title for FSU, 2. win another Heisman Trophy for himself and 3. best position himself for the 2015 NFL draft, defending a high-profile lawsuit would be a dubious use of his time and energy.

Not only would a lawsuit be time-consuming for Winston, it may also reveal damaging information about him. This is especially true during pretrial discovery, which would take place if Winston's attorneys fail to convince a judge to dismiss the lawsuit. Pretrial discovery would compel Winston to answer sensitive questions under oath and provide text messages, emails and other communications. He would have to discuss the night of the alleged rape and other intimate topics, such as his sexual history and use of alcohol and drugs. While pretrial discovery is generally confidential, the media would aggressively try to uncover any inflammatory information. This information might hurt Winston's reputation with many, including Heisman voters, NFL teams and companies that might eventually want to sign him to an endorsement contract.

Winston would not have to answer every question under oath. He could invoke his Fifth Amendment privilege against self-incrimination in response to questions that may force him to admit to criminal activities. Keep in mind, while Winston was not charged by police, he could still be charged if new evidence surfaces. The statute of limitations on criminal charges do not expire until 2017. Winston may be reluctant to invoke the Fifth, however, since (perhaps unfairly) it may "look bad" to the constituencies that will play a major role in Winston's career. Again, Winston would be wise to seek a settlement to avert any of these issues.

Although not parties to a case against Winston, FSU officials and coach Jimbo Fisher do not want their star quarterback spending time and energy in court. Whether they actively encourage Winston to settle remains to be seen, but their preference is certainly for Winston to avoid litigation. They may also be concerned that FSU players close to Winston would be called to testify, thus bringing negative attention onto the program and potentially risk NCAA scrutiny.

How a settlement between Winston and his accuser would work

A settlement would require Winston to pay the accuser an amount of money in exchange for her agreeing to permanently relinquish any potential legal claims she may have against him. This agreement would be spelled out in a contract, and both sides would be bound by its terms. Given that Winston won't earn money playing football until after the 2014 college football season, it is likely that the bulk of any payments would not begin until his pro career begins. A settlement could also take more creative forms, such as a percentage of Winston's income as a pro instead of a set dollar amount. Whatever the financial arrangement, a settlement would be confidential and Winston would not acknowledge any wrongdoing in it. Provided a settlement is reached before a lawsuit is filed, the settlement could also allow the accuser to remain anonymous.

Winston counter-suing the complainant for defamation and other claims

Instead of trying to reach a settlement with his accuser, Winston could adopt the opposite tactic: sue her. Winston could reason that he is innocent and is going to prove it in court. He likely would not sue his accuser until she sues first. Winston's most plausible legal claim would be defamation. A defamation suit would contend that the accuser has intentionally lied about Winston and caused material damage to his reputation. Winston might also argue that his accuser's allegations have led to the wrongful publication about private facts about his life and have intentionally caused him severe emotional distress.

While a counter-claim may be what Winston wants to do and could possibly provide him with leverage in a litigation, it would be unwise. For one, Winston's lawsuit would likely fail, even if he is telling the truth. Winston is a public figure, which carries a higher legal threshold in a defamation suit than for typical plaintiffs. He would need to prove not only that the accuser lied, but also did so intentionally. An honest disagreement about whether she consented, in other words, would negate a defamation lawsuit. Other claims sounding in privacy or emotional distress would also likely fail because they are typically unsuccessful, especially for those -- like Winston -- who are already in the public eye. Pursuing a lawsuit would also require Winston to expend a great deal of time and energy in legal proceedings, and compel him to answer sensitive questions under oath.

Litigation against the Tallahassee Police Department and Florida State

Winston's accuser is also expected to sue the Tallahassee Police Department (TPD). A lawsuit against the TPD would likely be a civil rights claim under Section 1983 of Title 42 of the U.S. Code. She would contend that the rape investigation was intentionally botched and driven by a desire to protect the local university's football team. To support her claims, she would emphasize any irregularities in the investigation. While police departments are afforded wide-discretion in how they investigate crimes, there were curious aspects to this particular investigation. Most glaringly, Winston was not interviewed after being identified as a suspect, and there was no apparent attempt to obtain his DNA, search his apartment or acquire records of his electronic communications. Significant time also lapsed before several potential key witnesses, at least one of whom deleted a relevant video from his phone, were interviewed. It also somehow took 10 months for DNA to be tested. While the TPD seemed unusually passive in investigating Winston and his friends, the accuser was aggressively questioned. The optics of this investigation are troubling, at least in hindsight.

The TPD would paint a very different picture. It would highlight any inconsistencies in the accuser's story and stress that police investigations are not cut-and-dried as they are often depicted in television shows and movies. For instance, DNA evidence in this case was made more difficult by the finding of DNA of two men on the accuser. The TPD would also frame any missteps as inadvertent, rather than deliberate, and would emphasize that the decision to charge someone with a crime must be supported by persuasive and largely uncompromised evidence. To the extent the TPD's record of investigating crimes is well-regarded, the TPD would also stress such a record.

Keep in mind, it is possible for the police investigation into Winston's conduct to have been unlawful but for Winston to be innocent. While some commentators have essentially linked a questionable police investigation to Winston being guilty, they are not a necessary pair. Still, even if Winston reaches a settlement with his accuser, he would likely be called to testify in a lawsuit brought by the accuser against the TPD.

Lastly, Carroll told ABC News that her client may also sue FSU. The most likely claim against FSU would be negligent supervision, where FSU would be accused of failing to adequately monitor its star quarterback and failing to protect another of its students from sexual assault. Such a claim would be strengthened if FSU had reason to believe, such as through background checks or coaches' reports, that Winston posed a physical threat to female students. This type of lawsuit, however, is unlikely to succeed. The alleged crime took place off campus, where FSU lacks the legal responsibility and enforcement ability to safeguard its students. Moreover, FSU campus police appeared to have followed standard operating procedure by instantly alerting the TPD of a possible off-campus crime. FSU is also a public university and is thus immune from many lawsuits through the doctrine of sovereign immunity.

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.

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