The legal ramifications of the apparent hacking into new Miami Dolphins OT Laremy Tunsil's Twitter account during round one of the 2016 NFL draft.
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Laremy Tunsil, the Ole Miss offensive tackle thought to be a potential No. 1 overall pick in the 2016 NFL draft, stunningly fell to the Miami Dolphins at No. 13. Tunsil’s unexpected drop appears connected to an undated video posted to Tunsil’s Twitter account right after the first round began. In the video, which was quickly deleted, Tunsil is seen wearing a gas mask and smoking a bong. Tunsil and his agent, Jimmy Sexton, do not deny the video is authentic. Nevertheless, Sexton insists that Tunsil’s account was hacked.
The bong video, which according to some reports had been seen by several NFL teams well before the draft, raises obvious questions about Tunsil’s judgment. Particularly in the wake of the Johnny Manziel and Josh Gordon controversies, a player’s judgment while away from the field is of heightened interest to NFL personnel directors. Along those lines, personnel directors observing a video of Tunsil smoking a bong might worry about him having a potential drug problem. They might also question how responsibly Tunsil protected his social media accounts and whether he carelessly delegated access to others.
Tunsil’s social media nightmare on draft night only worsened with posts on what appears to be his verified Instagram account. The posts depicted an apparent communication between Tunsil and Ole Miss assistant athletic director John Miller over who ought to pay Tunsil’s mother’s rent and bills—a communication that, if verified, could attract the attention of the NCAA’s enforcement staff as to whether the University of Mississippi has been fully compliant with NCAA amateurism rules.
Damaged caused to Tunsil and tracking down the Twitter hacker
If Tunsil concludes the apparent hacking of his Twitter account caused him to drop in the draft, he would be incentivized to try to track down the hacker or hackers and pursue legal claims against them. A drop in the draft can cause massive financial harm. If Tunsil had been drafted No. 3 by the San Diego Chargers, the total value of his rookie deal would be $25.9 million, whereas he is now set to earn $12.5 million—or less than half—as the No. 13 pick (financial data from Spotrac). Such an enormous financial drop would be compelling evidence of damages in any lawsuit. Tunsil might also insist that the hacking and accompanying video damaged his reputation with companies with whom he might have signed lucrative endorsement deals.
Tunsil’s ability to track down the hacker or hackers is another matter. While there are various companies that can assist in the tracing of hackers, some hackers are more skilled at evading detection than others. It remains to be seen if the person or persons who hacked into Tunsil’s Twitter account did so in a way that left a digital trail. Law enforcement and Twitter would likely help Tunsil investigate.Tunsil might already have a suspicion as to the hacker’s identity. According to SI.com's Greg Bedard, an executive at one NFL team suggests that a financial advisor fired by Tunsil could be responsible for the social media hacking.
Even if Tunsil’s hacker is found, he or she might not have the economic wherewithal to pay off a court judgment worth millions of dollars. Tunsil, in other words, could expend significant resources in tracking down a hacker and then additional resources successfully litigating against him or her, only to be unable to collect because the hacker doesn’t have much money.
Potential types of lawsuits Tunsil could bring
If Tunsil is successfully able to identify the hacker or hackers, he could bring several types of claims against them. One would be invasion of privacy, which protects against public disclosure of private facts. A key issue in such a claim would be whether a video of Tunsil smoking a bong is a matter of public concern. The video was presumably taken while Tunsil was a college student, a status that often affords some privacy protection. On the other hand, Tunsil was one of the most newsworthy college athletes while he played at Ole Miss, which suggests his right to privacy may be weaker than that enjoyed by his classmates. To put it another way, a video of Tunsil smoking a bong is arguably more a matter of public concern than a video of an unknown college student doing the same would be.
Tunsil would also have a potential claim for intentional infliction of emotional distress, which refers to when a person intentionally causes another severe emotional harm through extreme and outrageous conduct. This is normally a difficult claim to win on, but consider the hacker’s particularly reprehensible conduct in this situation. He or she hacked into Tunsil’s Twitter account and posted an unflattering video at the worst time possible for Tunsil—right while NFL teams were weighing whether to draft Tunsil and right while Tunsil and Sexton wouldn’t have much of a chance to investigate and respond before his reputation was severely damaged. The hacker also seemed to possess the intent to cause Tunsil serious emotional and monetary harm.
Tortious interference is another possible claim Tunsil might consider. Here, Tunsil would assert that the hacker knowingly disturbed pending contractual relationships between Tunsil and a team that might have drafted him earlier in the draft and companies that might have signed him to endorsement deals. He’s more likely to establish this if he can convincingly demonstrate that without the bong video, he would have been picked earlier. In this case, what would help Tunsil’s claim here is a report from the NFL Network’s Aditi Kinkhabwala that the Baltimore Ravens, picking No. 6, took Tunsil off their draft board upon learning of the bong video.
Still, even with that information, the obvious limitation to such an argument is that every year, players fall unexpectedly in drafts. Proving that the hacking and bong video was the sole cause of Tunsil’s drop will be difficult.
Tunsil would not have a viable claim for defamation if the hacking only disclosed truthful, albeit sensitive, information. Truth is a complete defense to defamation.
The apparent hacking into Tunsil’s Twitter could also attract the interest of law enforcement. The federal Computer Fraud and Abuse Act prohibits, among other things, unlawful access into another person’s computer and data without authorization. Violators of the Computer Fraud and Abuse Act can face lengthy prison sentences, as each hack or intrusion can be considered a separate violation of a law that carries a potential five-year prison sentence.
Extortion is another criminal charge of potential relevance to Tunsil’s situation. If the hacker previously threatened Tunsil with a pledge to post damaging videos and communications unless Tunsil paid, the hacker would be vulnerable to a charge of extortion.
SI.com will monitor the Tunsil story for the latest developments.
Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute.