• Following the latest developments of Swimgate, Ryan Lochte and the other U.S. swimmers are more likely to face criminal charges—for filing a false police report, lying to a law enforcement officer and obstruction of justice.
By Michael McCann
August 18, 2016

Swimgate continues to float towards an uncertain conclusion.

According to ABC News, Brazilian authorities claim to have a video that depicts an unnamed U.S. swimmer having an altercation with a security guard while the swimmer breaks down a gas station restroom door. Other video that SI has obtained from the Brazilian TV station Globo displays four men who look like Olympians Ryan Lochte, Jimmy Feigen, Jack Conger and Gunner Bentz walking around a gas station. No acts of violence are apparent in the Globo video, which also shows the men enter a cab. Meanwhile, CNN reports that the four swimmers, while drunk, vandalized a gas station in the Barra da Tijuca neighborhood and then worked out an agreement—presumably a financial one—with the owner of the gas station to pay the damage. By the time the police arrived, CNN reports, the owner assured the police the incident had been resolved and no charges were necessary.

Brazilian authorities believe that video evidence and eyewitness testimony support the emerging view that the four swimmers concocted a story about assailants robbing the swimmers on Sunday morning while posing as Rio de Janeiro police officers. Late last night, I detailed the legal and diplomatic fallout of this controversy.

Rio police: Ryan Lochte, U.S. swimmers lied about robbery

Legal impact of latest developments

These latest developments alter the legal dynamics of the controversy. For starters, the swimmers’ robbery story seems less believable. Worse yet for the swimmers, it seems that they had motive to embellish. Money they claim was stolen from them in a dramatic robbery involving police impersonators and a cocked gun to Lochte’s forehead might instead reflect money paid to a business owner whose property was damaged in a drunken incident.

The developments also make criminal charges more likely. Conger, Bentz and—if he’s still in Brazil—Feigen, may now be confronted in person by Brazilian authorities with evidence that suggests some or all of them lied to police. Possible charges would include filing a false police report, lying to a law enforcement officer and obstruction of justice. As for Lochte, as I explained earlier today, it would be nearly impossible for Brazil to extradite him.

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Video might also reveal that a separate type of crime occurred: assault and battery. If one of the swimmers hit a person at the gas station, the swimmer would be vulnerable to assaulted and battery charges. The severity of such charges would depend on a number of factors, including the swimmer’s intent, any accompanying injuries to the victim and whether the hit occurred in self-defense. Video could also reveal potential crimes of vandalism, such as destroying signs and urinating on private property. Aside from the criminal law implications of a swimmer possibly hitting another person, the victim may be able to file a civil lawsuit against the swimmer and seek monetary damages.

Two points of caution

Before getting too far ahead of potential legal consequences, it is worth stressing two points of caution.

First, much of Thursday’s developments appear driven by disclosures from Brazilian police. These disclosures are likely intended to portray the swimmers as having lied and acted irresponsibility. It is very possible that other evidence exists which might support the swimmers’ account.

Second, this controversy will likely be resolved in a relatively amicable way. As I explained earlier this morning, the U.S. State Department is surely playing an influential role in discussions with Brazilian officials. The U.S. and Brazil have a positive and productive relationship, with Brazil representing the ninth largest trading partner of the U.S. Further, U.S. citizens represent a good percentage of tourists to Brazil. It makes sense for both countries to a resolution that allows both countries to save face.

Timeline: What we know about Ryan Lochte's alleged robbery in Rio

Along those lines, if the swimmers indeed tried to cover up a drunken escapade, the most likely outcome would not be that they are sent to prison. It would instead involve the swimmers apologizing to the Rio de Janeiro police department and perhaps paying a fine or restitution.

Will the International Olympic Committee step in?

Although extremely rare, the International Olympic Committee has stripped athletes of medals for misconduct outside of failed drug tests or ineligibility. For instance, in the 2008 Beijing Olympics, the IOC took away Swiss wrestler Ara Abrahamian’s bronze medal in Greco-Roman wrestling after Abrahamain—who was upset about the judges’ scoring—walked out of a medal ceremony. The IOC has discretion under the Olympic Charter to determine that misconduct by Olympians’ undermines the values of the Olympic Games and warrants the return of medals. The four swimmers, it should be noted, all won gold medals for the U.S. in Rio.

The IOC could also reprimand the U.S. Olympic Committee if it in any way facilitated the four swimmers’ possible efforts to avoid justice. The Olympic Charter is clear in stating that national Olympic committees “are responsible for the behavior of the members of their delegations.” A reprimand would likely be in the way of a written rebuke, but the IOC has the power to issue suspensions and disqualifications as well.

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. McCann also created and teaches the Deflategate undergraduate course at UNH. He serves on the Board of Advisors to the Harvard Law School Systemic Justice Project and is the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is also on the faculty of the Oregon Law Summer Sports Institute.

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