If you watched the first round of the NFL Draft, the big story was the sliding of Ole Miss offensive tackle Laremy Tunsil out of the top five to number 13. As the draft was unfolding, someone released a video of him smoking marijuana through a gas mask. You can read the story here. You can watch this interview right after he was picked.
To make matters worse, after he was picked, someone released text messages between Tunsil and one of the assistant coaches at Ole Miss where it looks like Ole Miss was paying Tunsil’s rent or his mother’s electric bill. Read about it and see the texts here. Here is another interview where Tunsil admits the texts were his.
So, can Tunsil sue or is there a possible crime?
Yes and yes.
Assuming someone “hacked” his Twitter or Instagram account, even if Tunsil was somewhat lackadaisical about protecting it, and that this person did not have “authority” to access the account, then there is likely a violation of the Stored Communications Act.
The SCA makes it illegal for anyone to “intentionally access without authorization a facility through which an electronic communication service is provided or . . . intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorize access to a wire or electronic communication while it is in electronic storage in such system.” Accessing his Twitter or Instagram accounts without his permission would likely be a violation.
In addition to these statutes, there could be additional claims like RICO, breaches of contracts, fiduciary duty, wire fraud, trespassing, theft, extortion if there was money demanded in advance, and a number of other state law claims.
So, what are the criminal penalties?
Pursuant to 18 U.S.C. § 2701, “if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain,” the criminal penalty for a first offense is a fine or imprisonment for not more than five years or both.
What about a civil lawsuit?
Tunsil could also sue the perpetrator. Assuming he can establish there was no authority to access his accounts, the SCA provides that a plaintiff can recover:
damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.
18 U.S.C. § 2707.
To prove damages, I would have a composite of the mock drafts immediately prior to the release of the video to determine where Tunsil would have likely been drafted had the video not come out. Then, you take the difference between the guaranteed money that pick would have received and the money the 13th pick receives as your actual damages. Those damages could easily exceed $10 million.
Assuming the defendant wanted to purposefully hurt Tunsil, punitive damages would also be available.
What about Tunsil’s conduct?
Yes, Tunsil is shown smoking marijuana. Yes, it appears he took benefits from Ole Miss in violation of the NCAA rules. If you are making a negligence claim, the plaintiff’s own negligence comes into play.
But, under the Stored Communications Act, his alleged bad acts don’t really come into play as far as liability. A jury might consider his actions when deciding the causation. What really caused his damages? Was it the hacking by the defendant or Tunsil’s own bad acts?
Causation is usually a fact question in a civil trial, but would anyone really be surprised that an NFL prospect smoked marijuana at some point in his life? Tunsil says the video is old and his pre-draft drug tests all came up clean.
The video came out 13 minutes before the draft started. The argument is the slide in the draft only happened when the video came out. After all, even after he did these things (although no one knew), he was still considered a top five pick.
If there was a civil case, there could be a huge verdict, but then there is always the matter of collecting.
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