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  • Hill has avoided NFL suspension despite accusations of child abuse and making a threatening remark to his fiancée. What convinced the NFL’s commissioner to clear Hill of any wrongdoing? And why might this case not be entirely closed?
By Michael McCann
July 19, 2019

Earlier this year, some wondered if the NFL career of Kansas City Chiefs wide receiver Tyreek Hill could be in peril following news reports of suspicious injuries suffered by Hill’s young son.

In March, Hill and his then-fiancée, Crystal Espinal, were persons of interest to the Overland Park Police Department and the Kansas Department for Children and Families (DCF) after their son suffered a broken arm and other wounds while in the care of family.

Several weeks later, child protective services removed the son from Hill and Espinal’s custody and placed him in another home. In late April, KCTV5 published chilling excerpts of a recorded conversation between Hill and Espinal. On the recording, Espinal asks Hill why their son says that “Daddy” broke his arm. She also insists that Hill “grabbed onto” their son and repeatedly punched him in the chest.

But as the spring turned into the summer, the controversy became cloudier. This began when Johnson County District Attorney Stephen Howe announced that neither Hill nor Espinal would face criminal charges for injuries suffered by their son. The criminal investigation was also downgraded from an active engagement to an inactive one.

Further, Hill’s attorney, N. Trey Pettlon, sent a telling letter to Lisa Friel, the NFL’s special counsel for investigations. In it, Pettlon stressed that the son’s injuries were caused by an accident—not by any wrongdoing—and that Hill played no role in the accident. Meanwhile, Kansas City Sports Radio 610 published the entire recorded conversation referenced above. Previously unheard portions depicted Hill as consistent in his denials of misconduct.

Hill, who claims that Espinal—not him—injured their son, also met with the NFL for eight hours in June and (persuasively, it seems) answered the commissioner’s questions. Goodell invited Espinal to meet as well, but Espinal refused, meaning the commissioner could not compare the responses of the two parents.

Against this murky backdrop, the NFL announced on Friday that Hill will not be disciplined under the league’s personal conduct policy. As is often noted when an NFL player is accused of off-field wrongdoing, the conduct policy is detailed in Article 46 of the league’s collective bargaining agreement between the NFL and the National Football League Players’ Association.

In a statement explaining its decision, the league stresses that it conducted a thorough four-month investigation into Hill. According to the league, the “well-being of the child” was the investigation’s primary concern. The league says it “cannot conclude” that Hill, whom the Chiefs ordered to stay away from the team pending the NFLs investigation, violated the policy. Hill will thus be available for the Chiefs when their training camp opens next week.

Making sense of Goodell’s decision

Goodell’s decision to clear Hill is not without controversy. The commissioner suspended Dallas Cowboys RB Ezekiel Elliott for six games in 2017 in the wake of domestic violence allegations. Goodell did so despite the absence of criminal charges against Elliott (like Hill); Elliott raising significant doubts about the accusations (like Hill); Elliott consistently maintaining his innocence (like Hill) and uncertainties surfacing about the truthfulness of Elliott’s accuser (analogous to Hill raising doubts about Espinal, whom he blames for their son’s injury).

Goodell is also the same commissioner who suspended New England Patriots QB Tom Brady for four games in 2015 related to allegations of tampering with the air pressure of footballs. Goodell did so despite a cadre of neutral scientists insisting that the NFL’s conclusions about air pressure defied basic science; not one person witnessing any football tampering; and Brady testifying under oath—thereby accepting the risk of criminal perjury charges—that he never changed the air pressure of any footballs nor asked anyone to do so.

With those two player suspensions in mind, why would Goodell decide to take Hill’s word?

As a starting point, Goodell can apply the personal conduct policy as he sees fit. This is clear from the language of the personal conduct policy. Goodell has total discretion. The fact that Goodell suspended Elliott does not compel Goodell to suspend Hill. Goodell can treat each situation differently, and his ruling in one matter does not bind him in another.

Second, Goodell had reason to not punish Hill, at least with respect to the suspicious injuries sustained by Hill’s son. Hill was not charged with a crime and is no longer the subject of an active investigation by law enforcement. Granted, the absence of criminal charges obviously doesn’t, by itself, prove Hill’s innocence. Sometimes the police suspect a person committed a crime, but they lack enough certainty to arrest. To that point, charging a person with a crime requires probable cause: sufficient belief from the available facts and circumstances to conclude that a person committed a crime.

Further, the relevant test for Goodell is not whether a player is convicted, charged or sued: it’s simply whether the player’s conduct is “detrimental to the integrity of and public confidence in” the NFL. Any action by a player that, in Goodell’s view, damages the reputation of the player or his team or that “undercuts public respect and support for the NFL” is eligible to be deemed a violation of the personal conduct policy. To be sure, suspicions of Hill with respect to his son have been reputationally damaging to him, the Chiefs and the league.

Still, there is no reason to expect that Goodell knows more about the injuries suffered by Hill’s son than does law enforcement. Unlike a police department or a district attorney’s office, the NFL is a private business. It thus lacks subpoena powers and can’t compel a witness to testify. Illustrating that limitation, Espinal refused to speak with NFL investigators. The league could do nothing to compel her cooperation since it has no jurisdiction over her.

Similarly, the NFL’s statement referenced its limited access to available evidence. “The information developed in the court proceeding,” the statement explains, “is confidential and has not been shared with us.” Moreover, the league, which is not a party to litigation involving possible child abuse within a family, had to honor the court sealing all law enforcement records. With these constraints in mind, the league stressed that local law enforcement “cannot determine who caused the child’s injuries”—and thus, by inference, neither can the NFL.

Third, Goodell could distinguish the Hill matter from Goodell’s decision to suspend both Adrian Peterson and Ray Rice in 2014. Peterson was criminally charged with injuring a child after he beat his four-year-old son with a tree branch after the boy had an argument with another child of Peterson over a video game. The boy suffered noticeable cuts and bruises to his back, buttocks, legs, hands and scrotum. Peterson later pleaded no contest to misdemeanor reckless assault. With Peterson there was a legal process that confirmed he unlawfully injured his son. With Hill, no such process has played out. Hill has also consistently maintained his innocence.

Likewise, Goodell could distinguish the situation involving Hill from that of Rice. With Rice, there was video that he brutally dragged his then-fiancée (now wife), Janay Palmer, by the hair in the Revel Hotel and Casino in Atlantic City, New Jersey. Rice was also charged with aggravated assault and negotiated pretrial diversion to resolve the charge. Goodell, in other words, had confirmation that Rice was at fault. While Goodell later erred with the Rice matter by double-punishing Rice, the more relevant point here is that Goodell could punish Rice with certainty that the punishment was warranted.

Fourth, Goodell may have taken a lesson from the Elliott, Peterson and Brady suspensions: while each suspension was ultimately upheld by federal judges, each led to divisive, lengthy and costly litigations in court. In each of those cases, serious questions were raised about Goodell’s approach to decision-making to conduct matters. Unlike his counterparts as commissioner in the NBA, MLB and NHL, Goodell is not an attorney. He has been criticized for questionable reasoning when assessing facts and evidence. By declining to punish Hill, Goodell and the NFL avoid the possibility of Hill and the NFLPA appealing the suspension (back to Goodell) and, if the appeal were unsuccessful, petitioning a federal judge to vacate the suspension. Goodell, in other words, gains closure by not suspending Hill.

Goodell’s debatable decision to not punish Hill for his threatening remark

As explained above, Goodell had several reasons to decline to punish Hill for injuries sustained by Hill’s son. The record is less clear as to why Goodell did not punish Hill for his threatening comments to Espinal. During the recorded conversation referenced above, Hill warns Espinal that she needs to “be terrified” of him.

Making this comment particularly disturbing is the fact that Hill has admitted in court to gruesome acts of violence against Espinal. Four years ago, he pleaded guilty to domestic assault and battery charges. The charges stemmed from Hill hitting Espinal in the face and stomach while she was eight weeks pregnant. He also strangled her. Although Hill now insists (while no longer under oath) that he did not commit those acts, he admitted to them in court, where he was obligated to tell the truth.

The NFL’s statement on Friday does not address this point. When asked, NFL spokesman Brian McCarthy said the threat was viewed in the context of the entire audio recording and the other information gathered as part of the investigation.

In light of the nearly unlimited scope of the NFL’s personal conduct policy, Goodell could have punished Hill for his threatening remark. Given the league’s desire to ensure its fans, sponsors and media that it takes domestic violence seriously, a punishment for saying “you need to be terrified of me too, dumb b----” would have been understandable.

But Goodell didn’t “have to” punish Hill. Goodell might have placed significance in the fact that Hill did not know he was being recorded when he made this incendiary remark (though that excuse doesn’t always work with pro sports leagues—see Donald Sterling and the NBA).

Goodell might also have been concerned that by punishing a player for making a statement, Goodell would invite the NFLPA to challenge the suspension. After all, players to date have been suspended by the NFL for actions or alleged actions, not for what they say.

The same, however, isn’t true when it comes to punishments levied by individual teams. In 2012, the San Francisco 49ers suspended RB Brandon Jacobs for three games after he published social media posts where he complained about his lack of playing time. In one Instagram post, Jacobs referenced feeling like he was “rotting away” under the coaching of Jim Harbaugh, who was the 49ers head coach at the time. Jacobs’s statements were damaging to his team and thus warranted a punishment.

Also, other pro leagues have punished players for their statements. In 2013, the NBA fined Indiana Pacers center Roy Hibbert for “inappropriate and vulgar language.” Hibbert had used the derogatory expression “no homo” during a post-game press conference.

Hill could still get in trouble with the law and the NFL

While Hill currently does not face criminal charges and while he is not the subject of an active investigation by police, the DCF investigation continues (per reporting by Tom Pelissero of the NFL Network).

If the DCF finds evidence or obtains witness testimony that suggests Hill (and/or Espinal) may have committed crimes, the agency would refer the matter back to the police and district attorney’s office. Hill could then once again face the risk of charges.

With that mind, there is a five-year statute of limitations under Kansas law for the crime of battery. Battery, as defined by Kansas Statute 21-5413, involves knowingly or recklessly causing bodily harm to another person. A conviction on battery can lead to a jail sentence and the loss of custody to a child. Police reports indicate that injuries to Hill and Espinal’s son were potentially consistent with battery.

The Hill situation is also unsettled by the fact that Hill and Espinal have apparently split up and are litigating against one other for custody of their children. Espinal recently filed a petition in Johnson County District Court concerning paternity, custody and child support of her newborn twins. If Hill and Espinal remain at odds, it’s possible they could become more willing to implicate the other of wrongdoing around children.

The NFL, meanwhile, could decide to punish Hill later on. The personal conduct policy lacks any kind of limitation that would be analogous to “double jeopardy” where, in criminal law, a person can’t be prosecuted for a crime after he or she is found not guilty. Goodell could simply revisit the topic and issue a punishment if he so chooses.

Michael McCann is SI’s Legal Analyst. He is also an attorney and Founding Director of the Sports and Entertainment Law Institute at UNH Franklin Pierce School of Law.

Question or comment? Email us at talkback@themmqb.com.

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