• The Bucs QB has been accused of inappropriately touching an Uber driver, and the NFL has launched an investigation. Here's the breakdown of the league discipline and legal issues
  • The NFL has set a six-game suspension as the baseline in cases of sexual assault. This incident will be another test of the league’s investigatory process
By Michael McCann
November 17, 2017

Could Tampa Bay Buccaneers quarterback Jameis Winston be in line for a six-game suspension?

As first reported by Talal Ansari of BuzzFeed, a female Uber driver alleges that Winston “grabbed her crotch” at around 2 a.m. on Sunday, March 13, 2016, in Scottsdale, Ariz. “Kate,” the pseudonym BuzzFeed used to identify the woman, had accepted a pickup of a passenger who appears to have been partying with other men in downtown Scottsdale. When the Uber arrived, the men told Kate that she would be driving someone famous—Winston—and they then explained that Winston was a well-known NFL player. A person whom Kate says was Winston then entered the front passenger seat of her car and sat down. Unlike with taxicab passengers, who sit in the back, it’s not uncommon for an Uber passenger to “ride shotgun.”

After Kate drove off, she contends that Winston behaved in an offensive manner. For instance, he allegedly shouted homophobic slurs at pedestrians. Not long after Kate picked up the passenger, the passenger asked Kate to stop at a fast food restaurant. She then drove through the drive-thru of a Los Betos Mexican Food restaurant. While doing so, Kate says Winston placed his fingers on clothing above her crotch and kept his fingers there for as long as five seconds. He only removed his fingers when he noticed Kate expressing shock and disgust. Kate was stunned. She also felt threatened, particularly given that she found the passenger (Winston is 6'4" and 232 pounds) to be “physically imposing.”

After the ride was complete, Kate filed a complaint with Uber, asserting that that a passenger whom she described as “apparently a big athlete in the NFL” had sexually assaulted her. Uber responded by encouraging her to immediately contact the police. Kate declined, fearing that her name would become public. Uber also reviewed the trip records (e.g., ride receipt, trip identification number) and concluded that an account associated with Winston had made the trip request. Uber eventually banned this account.

Russ Spielman, a representative for Winston, categorically denies Kate’s allegation. Spielman charges that Kate “was unable to identify the specific individual who allegedly touched” her. Further, while Spielman acknowledges that Winston’s Uber account was used to call for the ride, he implies that Winston was not the passenger.

Potential NFL ramifications

The NFL is investigating whether Winston might have violated the personal conduct policy detailed in Article 46 of the collective bargaining agreement. Article 46 stipulates that NFL commissioner Roger Goodell can fine or suspend players for engaging in “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” This sweeping language has been applied to a wide range of alleged player misconduct, ranging from very serious matters of domestic violence to comparatively trivial equipment controversies, most notably slightly underinflated footballs. Under Article 46, Goodell is authorized to determine if misconduct occurred and, if so, what the punishment ought to be. Appeals of such punishments go back to Goodell or to an arbitrator of Goodell’s choosing.

To clarify the application of Article 46 in matters involving domestic violence or sexual assault, the NFL in 2014 adopted a policy whereby a player faces a baseline six-game suspension for a first offense and a lifetime ban for a second offense. In investigating whether domestic violence or sexual assault occurred, the league consults with outside experts.

The league has not always applied this policy. New York Giants kicker Josh Brown, for example, admitted to domestic violence in 2016. Nonetheless, the NFL only suspended Brown for one game. The league has also applied this policy in situations where there are serious doubts whether the player committed the harmful act. This narrative describes the six-game suspension of Dallas Cowboys running back Ezekiel Elliott. Goodell punished Elliott for battering then-girlfriend Tiffany Thompson even though the lone NFL investigator who interviewed Thompson did not find sufficient evidence to support Thompson’s accusations.

It remains to be seen whether the NFL’s investigation will conclude with a finding that Winston committed an infraction under Article 46. The timing of the investigation is also open-ended—it could last days, weeks or months.

In conducting the investigation, the league will likely demand that Winston turn over any relevant evidence, including text messages from the night in question, and answer questions posed by league investigators. The league will also try to interview Kate, but neither Uber nor BuzzFeed is under any obligation to reveal her identity to the NFL. In fact, both Uber and BuzzFeed have professional duties and possibly legal requirements not to reveal her name. Likewise, the league will probably ask Los Betos Mexican Food restaurant to share any video evidence and to make its employees available for interviews. Again, the NFL, as a private company, has no right to such information and has no subpoena power.

Potential criminal ramifications

It does not appear that local law enforcement had any awareness of the alleged incident until the BuzzFeed story. Therefore it is unlikely that an investigation by the Scottsdale Police Department has occurred. As noted above, Kate declined to notify the police due to concern about her name and identity becoming public. “I didn’t want to be publicly known as the woman who Jameis Winston groped,” Kate told BuzzFeed.

It was a credible concern. Winston is not only a famous NFL player, but he is also famous—infamous, to be more precise—for being accused of sexual misconduct. In 2012, Winston, at the time a star quarterback at Florida State, was accused of raping a classmate. Despite the legal system’s attempts to shield the classmate’s name as “Jane Doe,” Erica Kinsman’s name and background became known. The same would probably happen to Kate if she filed a police report or sued Winston. (Afterwards, Kinsman did identify herself publicly, in the documentary The Hunting Ground.)

If Kate changes her mind and requests a law enforcement investigation, it is possible that Winston (or whoever was the passenger) could be charged with a crime within the relevant statutes of limitations. One plausible charge would be for sexual abuse felony, which under Arizona law occurs when there is direct or indirect sexual touching—including over clothing. A conviction would carry up to a year and half behind bars. Simple assault would be another potential charge, since it appears that the passenger intentionally made offensive contact with Kate and also put her in reasonable apprehension of imminent physical injury.

Proving that Winston was the passenger would depend on a number of factors. Kate and Winston, of course, would be pivotal witnesses. Along those lines, would Winston testify under oath that he was not the passenger? And if he says that he wasn’t the passenger, what would be his alibi?

Other key witnesses would include the men with whom Winston was allegedly partying and persons who may have seen Kate and her passenger. Los Betos Mexican Food employees working the drive-thru would be obvious candidates—especially since they might have recognized Winston if they saw him. Further, persons whom Kate and Winston contacted after the incident would be interviewed. According to BuzzFeed, Kate contacted five persons after the incident and sent texts as well. Law enforcement would also review any available surveillance video and other electronic evidence.

Even if law enforcement established that Winston the passenger, it would not automatically prove that a crime occurred. Winston (or whoever was the passenger) could simply deny Kate’s allegation. Keep in mind, Winston was not charged with sexually assaulting Kinsman at least in part because it was her word against his on whether she consented to having sexual intercourse. Without other evidence or testimony, it might have been difficult for prosecutors to prove that Winston was guilty beyond a reasonable doubt. For similar reasons, Florida State cleared Winston of a conduct code violation.

Potential civil ramifications

Although BuzzFeed reports that Kate says she isn’t interested in money and that sharing her story is designed to get out the truth “about a powerful man who felt entitled to my body when all I wanted to do was my job,” it is possible that she could explore filing civil lawsuits against Winston and Uber.

If she sued Winston, Kate would probably include claims for battery, assault, false imprisonment and intentional infliction of emotional distress. Battery would refer to an argument that Winston, intentionally and without consent, touched her in an offensive and sexually hostile way. A claim for assault would represent Kate’s contention that Winston’s behavior placed her in reasonable fear for her safety. A claim for false imprisonment would concern Winston’s conduct making Kate feel as if she had no reasonable escape from the situation—that she was afraid of how he might respond if she asked him to leave her car. As to a claim for intentional infliction of emotional distress, Kate would assert that Winston’s conduct was extreme, outrageous and highly offensive.

A civil lawsuit would face a much lower burden than a criminal charge. Only a preponderance of evidence (sometimes described as “more probable than not”) would be needed. Such a lawsuit would likely be settled long before it went to trial. Along those lines, Kinsman sued Winston—who countersued Kinsman—and reached a financial settlement with him for undisclosed terms before a trial occurred.

As to Uber, it’s at least theoretically possible that Kate could argue that Uber breached a duty of safety to prevent Uber drivers from being victimized by sexual assault. Uber’s website pledges to drivers that it is “dedicated to keeping you safe on the road.”

Such a claim would likely face several obstacles. For one, the standard Uber driver contract might contain language that limits liability for safety incidents. Similarly, the contract could express that the driver assumes certain safety risks posed by passengers. Second, Uber might not have the technical ability to assess whether a passenger poses a threat; Uber would likely not be very marketable if customers had to submit to a background check in order to use the service (and even had there been a background check with Winston, his only criminal record stems from receiving a citation for stealing crab legs from a Publix supermarket). Third, Uber responded to Kate’s complaint in a seemingly responsible way, urging her to contact law enforcement and terminating Winston’s Uber account. While customers are currently suing Uber over dangerous Uber drivers, the company’s responsibility to prevent dangerous Uber passengers would likely be more difficult to prove.

The MMQB will keep you posted on any developments.

Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA.

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