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  • The child abuse investigation against Tyreek Hill has been closed, but that doesn't mean the NFL will not punish him.
By Michael McCann
June 07, 2019

As first reported by KCTV5 and The Kansas City Star, Kansas City Chiefs wide receiver Tyreek Hill is no longer the subject of an active criminal investigation related to suspicious injuries suffered by his 3-year-old son earlier this year.

Although officials from the Overland Park Police Department and the Johnson County District Attorney’s Office suspect that Hill or his fiancée, Crystal Espinal, caused their son’s injuries, they lack sufficient evidence to conclude that either parent broke the law. This uncertainty has, at least for now, led law enforcement to drop the case from its list of active engagements.

Why Hill was not charged, despite audio recording

It has come as a surprise to many that Hill will not be charged. It’s worth noting that law enforcement likely considered the possibility of charging both Hill and Espinal with criminal conspiracy. Conspiracy charges would have asserted that even if police and prosecutors can’t conclusively prove which of the parents injured their son, there is adequate proof that the injuries were caused while the son was in his parents’ care and that those injuries were more likely caused by a physical attack than an accident. To that end, prosecutors might have reasoned that both parents conspired to permit the other to cause “battery”— knowingly or recklessly causing bodily harm to another person—on their son.

One source of proof would have been a disturbing audio recording published by KCTV5 in April. The recording features Espinal accusing Hill of grabbing their son. She also questions Hill why their son (according to Espinal) would say that “Daddy” broke his harm if that in fact did not happen. Hill vehemently denied those claims and instead accused Espinal of dangerously using a belt on their child. While the two parents pointed the finger of responsibility at each other, they also seemed aware that their son faced significant dangers while in their care.

Had both Hill and Espinal been charged, one might have “turned” against the other and become a cooperating witness. This development would have been part of a negotiated plea deal. The parent who cut a deal would have agreed to testify against the other in exchange for a lighter punishment. This parent would have also been expected to share emails, texts and other evidence to help establish the other’s guilt.

For now, neither Hill nor Espinal will face charges. It’s clear that law enforcement doesn’t regard the audio as conclusive of a crime, perhaps because the recording mainly consists of Hill and Espinal accusing each other of acts that they in turn denied. If evidence doesn’t clarify which of the two is telling the truth, then verbal accusations in the absence of proof are not enough.

Law enforcement may also have been worried about how the audio came into existence. One possible concern was that Espinal might have secretly recorded Hill for leverage. If Espinal in fact recorded the call and for that purpose, her doing so would raise questions about her motivations and her corresponding value as a government witness.

Alternatively, law enforcement might have reasoned that both Hill and Espinal would have maintained loyalty to one another and not cooperated—even when presented with a deal to save themselves. They live together and their relationship has overcome violent controversy. In 2015, Hill pleaded guilty to domestic assault and battery stemming from a horrifying incident in which he hit Espinal, who was eight weeks pregnant at the time, in the face and stomach, and also strangled her.

Hill could still face charges in the future

Kansas law features a five-year statute of limitations for battery and other types of criminal offenses that could apply to injuring a child. This means that the case against Hill could be reopened at any point until 2024. In fact, the investigation was already reopened in April when the audio recording first surfaced.

Law enforcement would be inclined to reopen the case and seek charges if (1) they obtain new evidence that credibly establishes probable cause that a crime occurred and (2) they become confident that they would later convince a jury that one or both of the two parents is guilty beyond a reasonable doubt. Prosecutors could also empanel a grand jury to review the case any new developments. The grand jury would then determine if an indictment is appropriate.

In addition, the Kansas Department for Children and Families (Kansas DCF)—the state’s child welfare agency—has launched its own investigation into Hill and Espinal. At one point during the spring, the son was removed from the family’s home and placed into the care of others. It’s possible that the DCF investigation could yield new facts. It’s also possible that the son might be willing to share which of his parents (or neither of his parents or both of his parents) is responsible for the injuries.

Hill could still face an NFL suspension

Hill is no doubt relieved to avoid criminal charges. His future in the NFL, on the other hand, is far less certain.

Under Article 46 of the collective bargaining agreement, commissioner Roger Goodell has complete authority to determine if a player engaged in “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” Goodell’s conclusions about facts do not need to comport to those of the legal system or those of the scientific community. He is authorized to decide facts as he sees fit. “Beyond a reasonable doubt”, “clear and convincing evidence” and other burdens of proof found in the court system need not apply in Goodell’s Court. He determines the appropriate burden and decides what happened.

Recent history has made these points crystal clear.

In 2017, Goodell suspended Dallas Cowboys running back Ezekiel Elliott for six games in the aftermath of allegations that Elliott had battered his ex-girlfriend. Even though Elliott was never charged with a crime, let alone convicted, even though he maintained his innocence throughout, and even though questions were raised about the believability of Elliott’s accuser, Goodell nonetheless found that Elliott had violated the policy. Elliott then challenged Goodell’s finding in multiple federal courts but to no avail: Elliott’s union, the National Football Players Association, had agreed to empower Goodell with this authority and discretion.

Wesley Hitt/Getty Images

A year earlier, New England Patriots quarterback Tom Brady received the same dispiriting message from the U.S. Court of Appeals for the Second Circuit. Goodell had suspended Brady in the Deflategate controversy despite widespread rebuke from the scientific community about the NFL’s scientific deductions and despite Brady going so far as to testify under oath that he had nothing to do with a quixotic equipment conspiracy. The Second Circuit nonetheless reasoned that to the extent Brady was mistreated by the NFL’s personal conduct policy, his gripe ought to be raised with his union for agreeing to the policy, not with Goodell for enforcing it.

With the Elliott and Brady experiences in mind, the fact that Hill has not been charged with a crime, and that he is poised to deny the allegations to the NFL, doesn’t mean the NFL won’t punish him.

Goodell effectively has unlimited discretion in assessing an appropriate punishment. The only limit—and it’s not really a limit since it’s a baseline—is that first-time violations involving domestic violence, child abuse, criminal assault or the felony version of battery subject players to a baseline six-game suspension. The six-game term can be increased for aggravating factors. One such aggravating factor, according to NFL policy, is when “the act is committed against a particularly vulnerable person, such as a child.” Another aggravating factor is when the player engaged in “similar misconduct before joining the NFL.” Both of those aggravating factors are relevant to Hill.

Under league policy, a second-time offender receives “permanent banishment” from the NFL, with an opportunity to petition for reinstatement after one year. If Goodell concludes that Hill is responsible for injuring a child, he could also reason that Hill is a second-time offender. As noted above, Hill pleaded guilty to domestic violence crimes in 2015. However, Hill and the NFLPA would refute this finding by stressing that Hill was a college player, not an NFL player, at the time of the first incident and thus was not subject to collectively bargained work policies.

To that end, “second offense” is mentioned in the context of the policy itself, which suggests it only contemplates misconduct while a player is in the NFL and subject to the personal conduct policy. Of course, Goodell could still impose a one-year (or longer) suspension on account of the six-game figure being a floor that is subject to increases for aggravating factors (two of which are acts against children and similar misconduct before joining the NFL).

Goodell also doesn’t need to conclude that Hill injured his son in order to justify punishment. The aforementioned recording between Hill and Espinal included Hill telling her “you need to be terrified of me too, b----.” In light of Hill previously punching and strangling Espinal—while she was pregnant, no less—Hill has ominously shown that he is more than capable of carrying out such a threat. Goodell would thus be well within his authority to punish Hill for verbally threatening Espinal.

NFL investigation could impact law enforcement's case

Hill is contractually obligated to cooperate with NFL investigators. A failure to do so, under NFL policy, is itself grounds for a suspension. Further, Hill can’t invoke his Fifth Amendment right against self-incrimination. That constitutional right protects U.S. citizens from self-incrimination while testifying. It has nothing to do with a private employer, applying a workplace conduct policy, asking an employee about what took place. Hill’s rights with respect to NFL investigators are determined by the CBA and his employment contract.

Hill will need to be careful in the extent to which he cooperates with NFL investigators. They will demand that he talk about his relationship with Espinal and their son and whether their son has previously needed medical care. Investigators will also insist that Hill retell everything that occurred on the date of the son’s injuries (March 14). Law enforcement and the Kansas DCF could potentially seek subpoenas for any evidence obtained by NFL investigators.

At the same time, NFL investigators are limited in demanding information from other persons connected to the controversy. The NFL is a private entity and thus has no subpoena power. Similarly, the NFL can’t compel a person from outside of the NFL to turn over emails or provide sworn testimony. These are important limitations with respect to Espinal: she can refuse to cooperate in an NFL investigation and the NFL can’t do anything about that.

Meanwhile, the Chiefs, who placed Hill on leave in the aftermath of the allegations, will monitor developments. According to the NFL Network’s Tom Pelissero, the Chiefs expect to reinstate Hill before training camp unless plans change in the interim. The NFL suspending Hill would obviously be a major development that changes the Chiefs’ plans.

Michael McCann is SI’s Legal Analyst. He is also an attorney and Associate Dean of UNH Franklin Pierce School of Law.

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