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Neymar's Social Media Response, Geography Add Layers to Rape Accusation

In defending himself against rape accusations, Neymar could find himself in a separate legal battle altogether. Take a closer look at the serious allegations against the player and how his response alters the outlook.

Could Paris Saint-Germain and Brazil forward Neymar face criminal charges for an alleged sexual assault in Paris and for posting screengrabs of a partially-unclothed woman–purported to be his accuser–on his Instagram page?

Last Friday, a Brazilian woman filed a complaint with police in Sao Paulo, Brazil. She accused Neymar of raping her at the five-star Sofitel Paris Arc De Triomphe hotel. The alleged incident occurred on Wednesday, May 15, at approximately 8:20 p.m. local time. Published reports indicate that the accuser did not alert Paris police or notify other French authorities about her allegation.

Neymar’s accuser explained to Sao Paulo police that she and Neymar initially became acquainted through social media and that their connection became physically intimate in Paris. She relayed that Neymar invited her to see him in Paris. A person associated with Neymar then booked an airplane flight and a room for her at the Sofitel hotel. She then flew to Paris, checked into the hotel and spent time with Neymar.

She claims that during a flirtatious encounter with Neymar, he became aggressive and violent, and eventually forced her into sexual intercourse without her consent. She also described him as acting as if he was intoxicated. The complainant flew back to Brazil on May 17. She went to the police two weeks later, on May 31.

That's not where the legal issues surrounding this alleged incident end, though. Here's a closer look at what has evolved into a complex case:

Neymar’s Instagram defense to the public—and probably to PSG and the companies he endorses, too

Neymar, who is currently in his native Brazil training for the upcoming Copa America, insists that he is not only innocent but is the victim of an extortion plot.

Neymar offered a defense in an Instagram post on Saturday. His post contained a seven-minute video in which he expressed sadness that there are people “who want to take advantage” of others and cause them pain. His video also showed images of a woman wearing a bikini and of his purported WhatsApp messages with the woman. Some of the communications, which could be described as flirtatious, showed dates after the alleged rape. In the shared photos, the woman’s body is at times blurred, most likely because the screengrabs would have otherwise shown private areas of her body.

It’s unknown if the woman in Neymar’s Instagram post is the same person as the complainant. Likewise, it’s unknown if Neymar has shared all of the relevant messages or if the messages that were shared were altered in any way.

Neymar presumably hoped that the millions of people who saw his Instagram post would see a woman with whom he apparently had sexual relations act as if she was on good terms with him. They would also see that Neymar’s communication with the woman occurred after the date of the alleged sexual incident. If the public embraced the intended inference—that Neymar must not have raped her, since she was communicating with him in a friendly manner—the Instagram post would help to exonerate him in the court of public opinion.

Neymar, who has signed lucrative endorsement deals with Nike, McDonald’s, Gillette and other major brands, is undoubtedly mindful that maintaining his reputation and marketability is integral to preserving those deals. Likewise, he is surely aware that PSG, which in 2017 agreed to pay $250 million for him on top of a lucrative player contract and which has declined comment about the allegation, is closely monitoring developments.

Instagram saw the situation otherwise. The company took down Neymar’s post for violating its community rules. Instagram, like other social media channels, prohibits the posting of content that is designed to bully or harass another person or that contains sexually inappropriate imagery. Instagram is also attentive to the reality that Neymar’s post has taken on legal significance. The company likely wants to minimize its connection to a legal controversy involving one of its most prominent account holders: 119 million Instagram accounts follow Neymar, which is, for instance, one million more followers than Taylor Swift and 70 million more than LeBron James.


The location of the alleged sexual incident matters...

The possibility that a rape may have occurred is, by far, the most significant element to the controversy. The legal ramifications of that possibility are very much tied to geography.

As mentioned above, Neymar’s accuser formally alleged to law enforcement last Friday that Neymar had raped her in Paris on May 15. However, she did not go to the police in Paris. She instead made her complaint to the police in Sao Paolo. Media reports suggest that she opted for this approach because she was traumatized while in France. This is a very important distinction as it pertains to the concept of “jurisdiction.”

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Jurisdiction involves the power of a country to exercise its authority in a given location. For the most part, a country’s criminal laws are limited in enforcement to acts that occur within that country’s borders. In narrowly-defined instances, countries’ criminal laws can have “extraterritorial jurisdiction.” This type of jurisdiction empowers prosecutors to seek charges against those who commit crimes outside of the border. Sex trafficking and certain crimes against children are among the types of crimes that sometimes have extraterritorial qualities. Sexual assault by one adult against another is not (and a read of Brazil’s Penal Code indicates it is not).

Therefore, whether Neymar is charged with a sexual offense crime for an incident that allegedly occurred in Paris will be a determination for French authorities—and, chances are, only those authorities. At this time, it does not appear that Paris police are seriously investigating the alleged hotel incident, let alone considering charges. Remember, they did not meet with the accuser and were presumably not aware of the allegation until last Friday.

If Paris police do investigate, French criminal law would become a relevant consideration. Under Article 222-23 of the French criminal code, rape is defined as “any act of sexual penetration, whatever its nature, committed against another person by violence, constraint, threat or surprise,” It is punishable by up to 15 years in prison. Under Article 222-22, the French criminal code also prohibits “sexual aggression,” which refers to “any sexual assault committed with violence, constraint, threat or surprise.” The code prohibits other acts of violence as well. In short, Neymar could face different types of French crimes based on the type of depiction offered by the complainant.

Even without jurisdiction over the alleged sexual incident in Paris, Sao Paulo police—the Polícia Civil—could play an important role in any investigation by their counterparts in Paris, the Préfecture de police de Paris. Sao Paulo police have obtained a witness statement from Neymar’s accuser and also met with her. Those interactions likely produced valuable impressions about the accuser, including with respect to any suggestive injuries on her body (she reportedly showed bruises) and the believability of her account. Sao Paulo police can make a recommendation to the Préfecture de police de Paris, who would likely give it serious weight. Indeed, both Brazil and France are member states of the International Criminal Police Organization (Interpol), an organization that encourages the sharing of information between countries about criminal matters.

Further, Brazil’s Office for the Investigation of Cyber Crimes (DRCI) is investigating Neymar for a possible cybercrime. Such a probe could yield important evidence that pertains to Neymar’s activities in Paris.

If Neymar were charged in France, whether he is physically in France would then become an important consideration. Absent extraordinary circumstances, law enforcement officials in France can only arrest a person while they are in France or in a French-administered territory. Neymar, of course, plays for PSG and is thus often in France. But if charged while outside of the country and if he then refused to re-enter France, French officials could seek to extradite him.

Extradition is a complicated process that can take years to play out. In a nutshell, extradition would only be possible if France has signed an extradition treaty with the country where Neymar is located. If such a treaty exists, it would need to indicate that the crime for which Neymar was charged is “extraditable,” meaning one that can compel a government to send a person to another country to face charges.

Often, but not always, crimes that are punishable in both countries are extraditable. A judge, if not multiple judges and government agencies, in the country where Neymar is located would also to need approve extradition. Neymar would likely argue that any extradition attempt reflects the desire of prosecutors to gain celebrity for themselves and is thus motivated by politics rather than facts or evidence.

...But Neymar could still be charged in Brazil for a cybercrime or harassment

While the possibility of Neymar being charged with a sexual offense in Paris does not appear likely at this time, he could still face legal troubles in Brazil. Those troubles stem not directly from the sexual incident but rather from the manner in which Neymar has defended himself.

Brazil has adopted cybercrime laws that make it illegal in certain instances to publish sensitive personal information—including related to health and sexual content—without consent. Brazil recently amended Article 218 of the country’s Penal Code to make it a crime to use computers to publish or divulge sexually-explicit photos of a victim of a sex crime without that person’s consent. Persons convicted of violating Section Article-C can face a sentence of one to five years in prison.

Neymar Da Silva Santos, who is both Neymar’s father and agent, insists that his son had no choice but to quickly publish sensitive information in order to defend his name. Per ESPN, the father opined to TV Bandeirantes (a San Paolo-based TV network) that he would rather his son commit “an internet crime” than be wrongly accused of rape. He also suggested that the accuser’s attorneys had attempted to blackmail his son—pay up or we’ll go to the media or to the police—before going to the police.

Neymar Sr. also claims that the accuser tried to secretly record his son while they were intimate with one another in Paris and appeared to be setting him up for extortion. It’s unclear if such video exists.


Neymar’s legal strategy going forward

Neymar, who is reportedly worth in the ballpark of $185 million, has the financial wherewithal to hire an army of criminal defense attorneys to represent his interests in Brazil and, if necessary, France.

One short-term issue for Neymar will be whether to voluntarily share with the DRCI his phone as well as access to his email accounts and social media accounts. As Neymar is investigated for a possible cybercrime, law enforcement will want to review electronic evidence related to his phone and online activities.

Neymar has already shared screengrabs of purported WhatsApp messages with a woman who he implies is the same person accusing him of rape. However, there could be other messages with his accuser that he has not published and that do not reflect favorably on him. Any such messages would become apparent to law enforcement should he share access.

Further, sharing his phone and email and social media accounts could lead to privacy worries for Neymar, including for unrelated conduct. Neymar has encountered legal issues in the past, such as accusations by Spanish authorities that the former FC Barcelona star partook in corruption and fraud. Also, given his celebrity, any personal information from his phone could have significant value and thus be at risk of unlawful disclosure.

If Neymar does not share such evidence voluntarily, law enforcement could seek subpoenas or their equivalent to gain access to them. Neymar’s attorneys would need to assess relevant precedent in Brazil to determine the best legal arguments against such potential developments.

Neymar and his attorneys must also evaluate whether to speak with Brazilian officials. It’s one thing to talk into one’s phone to tell the world what happened. It’s another to answer questions from seasoned detectives and skilled prosecutors about what happened. In the latter, Neymar wouldn’t control the narrative, nor would he select which pieces of a story to reveal and highlight and which ones to omit or downplay.

Given that the DRCI is interested in whether Neymar unlawfully shared photos of a woman who may have been the victim of a sexual crime, Neymar’s relationship with his accuser would be given significant attention in a police interview. The fact that law enforcement in Brazil could share their findings with law enforcement in France could present problems for Neymar when he returns to play for PSG.

Neymar’s lucrative endorsement deals could be jeopardized by the accusation

Neymar might not be worried, at least for now, by how the accusation could impact his career.

He knows that he has not been charged with a crime and that if he faces a charge, it would probably be for an unlawful posting rather than sexual assault. Neymar also appears to have a defense in mind: depict the accuser as trying to extort him. 

Neymar also knows that another elite soccer player, Juventus star Cristiano Ronaldo, has not seen his career meaningfully tarnished by his own accusations of rape. Ronaldo continues to play without interruption, and major brands like Nike and Herbalife still feature him in advertising campaigns (though another sponsor, EA Sports, declined to use Ronaldo on the cover of FIFA 19—instead picking Neymar, Juventus forward Paulo Dybala and Manchester City's Kevin de Bruyne).

Still, if Neymar is charged, PSG will evaluate the seriousness of the charges. Expect the club, which recently captured the Ligue 1 title, and the Brazil national team to stand by Neymar absent major developments.

The same is likely true for the companies Neymar has endorsed. These types of companies require that endorsers sign “morals clauses” as part of their contracts. Morals clauses allow the company to exit the contract if a player brings controversy onto himself or the company. A morals clause can be invoked without a conviction, charge or even lawsuit—the practical test is whether the company believes a controversy linked to the athlete has damaged the company’s brand. While there is no reason to believe that such clauses will be invoked by any of Neymar’s endorsed companies, that remains a potential risk for Neymar as the controversy plays out.

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