Tom Brady's Super Bowl jersey has been reportedly found, but legal implications remain

0:36 | NFL
Tom Brady's missing Super Bowl jersey found
Monday March 20th, 2017

With the NFL confirming a report by CSNNE’s Tom Curran that Tom Brady’s missing jerseys from Super Bowl XLIX and LI have been recovered and a report by Fox Sports’ Jay Glazer that the alleged thief posed as a credentialed international media member, there are at least two important legal implications: bringing the thief to justice and diagnosing how Super Bowl press credential applications are approved.

Charging the thief

First, assuming the accused thief (or thieves) has been identified, he or she faces potential criminal charges under Texas law, Arizona law and federal law. Taking Texas law first, as I detailed on SI.com last month, the severity of any theft charge would depend on the value of the Super Bowl LI jersey. If the jersey is worth over $200,000, the accused thief would be charged with the highest degree of theft under Texas law, felony of the first degree theft, and would face a potential prison sentence of between five years and 99 years. However, if the jersey is only worth around $200 a pop, the accused thief would be charged with a misdemeanor offense and face a maximum of 180 days in jail.

Arizona law is also relevant since Super Bowl XLIX was played in Glendale and Brady’s missing jersey from that game was also recovered. Arizona law’s on theft is similar to Texas in that the degree of charge is based on the value of the stolen item. In Arizona, while conviction for misdemeanor theft of an item worth less than $1,000 can lead to a defendant jailed for up to six months, a conviction of theft of an item worth $25,000 or more is a felony and can carry up to 12.5 years in prison. As Super Bowl XLIX was played three years ago, the relevant statute of limitations is a factor. The statute of limitations for misdemeanor theft in Arizona is up to one year but for felony theft is seven years.

Assessing the value of Brady’s jerseys is a pivotal question, and not an easy one to answer. Prosecutors would argue that the correct value is fair market value of a jersey worn by Tom Brady in the Super Bowl. Such an approach would lead to very high monetary assessments—the Houston Police Department and various sports collectors have estimated that the value of the jersey worn by Brady in Super Bowl LI could be in the ballpark of $500,000. After all, it is the jersey worn by Brady in a thrilling, come-from-behind Super Bowl victory over the Atlanta Falcons. Defense attorneys, however, would insist that the appropriate value is the cost of each jersey that happened to be used by Brady in a game, less any wear and tear. Such a cost is likely around $200.

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Although theft is normally prosecuted at the state level, certain kinds of theft can lead to federal charges. This is true when the crime crosses state lines. Both the recovery of the jerseys on foreign soil (Mexico, according to Houston Police Chief Art Acevedo) and the FBI’s involvement in the investigation in the jersey heist indicate that the criminal activities are of an interstate quality. If the accused thief acted as part of a criminal enterprise, the accused thief and his/her associates could be charged under the Racketeer Influenced and Corrupt Organizations Act (RICO). If convicted under RICO, a defendant faces up to 20 years in federal prison for each RICO count.

If the thief is abroad, extradition law and Brady’s friendship with President Trump become factors

The location of the accused thief is very relevant in this discussion. If he or she is no longer in the U.S. and if U.S. law enforcement authorities demand that this person faces justice in the U.S., the accused thief would need to be extradited to the U.S.

The extradition process can be complex and slow. Generally, for extradition to occur, a host country must consent to its own law enforcement agency arresting the accused thief and then consent to extradite that person to the U.S. Usually the host country’s federal government and multiple judges are involved in that sequence.

Whether extradition would occur here depends in part on whether the U.S. has an extradition treaty with the host country and whether such a treaty lists theft or a similar crime as an extraditable offense. If the accused thief is in Mexico, the U.S. has an extradition treaty with Mexico and the treaty lists larceny of goods of $25 or more. Theft, which contemplates the taking of physical goods and intellectual property, includes larceny, which centers on the taking of physical goods. The accused thief, however, could be elsewhere. Late Monday, Ken Belson of the New York Times reported that the accused thief has been identified as Mauricio Ortega, the editor of the Mexico City-based newspaper La Prensa.

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Even if the accused thief is in Mexico or another a country that has an authorizing extradition treaty, he or she would attempt to dissuade a judge from signing off on extradition. One likely argument would be that the charges are motivated by the celebrity of Brady and that the U.S. government would not have undertaken the same effort and expended the same resources had it involved an ordinary stolen jersey. The accused thief could even assert that the case is politically motivated given Brady’s friendship with President Donald Trump, who often speaks fondly of Brady and has ultimate authority over the Department of Justice. Another possible argument would be if the accused thief is a citizen of a different country from the host country. In that scenario, the embassy of the accused thief’s country could intervene and argue the stolen jersey case is a politically motived case.

NFL will likely review granting of credentials and related security risks

NFL spokesperson Brian McCarthy tweeted a statement Monday morning expressing that the jerseys were found “in the possession of a credentialed member of the international media.” To obtain a press credential, a person must offer proof that he or she is employed by a media company and has been authorized by that company to report on a particular event, be it a game or a press conference. In other words, a random person cannot obtain a press credential. This is especially true for a high security event like the Super Bowl. Recall that Vice President Mike Pence, Second Lady Karen Pence, former President George H.W. Bush and former First Lady Barbara Bush were all in attendance at Super Bowl LI and were all under the protection of the U.S. Secret Service. The NFL, in conjunction with the Houston Super Bowl Host Committee, no doubt carefully scrutinized the persons who sought a press credential to report on this event.

It is unclear at this time whether the “credentialed member of the international media” lawfully obtained the press credential and then took or came into possession of the jerseys, or whether—and more worrisomely—this person obtained the credential under false pretenses, such as through forged documents or a false identity, with the intent to commit a crime. With reporting that Ortega—a newspaper editor—is the accused thief, it appears the former is more likely than the latter. Either way, expect the NFL to reconsider relevant policies on the granting of press credentials for the Super Bowl. This is particularly true if the same person stole Brady’s jerseys at Super Bowls XLIX and LI.

Along those lines, it would not be surprising to see the league demand stronger proof of identity and more information about a press credential applicant’s background. Depending on circumstances, the NFL might also want to “send a message” to media companies so that they do a better job conducting due diligence on reporters they intend to send to the Super Bowl. In that vein, the NFL could refuse to credential the media company that employed the accused thief. The league and FBI will also explore whether the thief had help from stadium or league employees in obtaining the jerseys. In addition, the Department of Homeland Security, which has authority over immigration matters in the U.S., will likely review how this person was granted a visa to enter the U.S.

In short, we live in a world where two used football jerseys can trigger an international legal drama. But at least the jerseys have been recovered. We’ll keep you posted on key developments.

Michael McCann is SI’s legal analyst. He is also an attorney and a tenured law professor at the University of New Hampshire School of Law.

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