Commentary

Hoax bad, but not criminal

Lawsuit could arise from the Manti Te'o case, but criminal charges unlikely

Updated: January 17, 2013, 6:03 PM ET
By Lester Munson | ESPN.com

Whether Manti Te'o was a victim of a hoax or one of its participants, the bizarre scenario involving a nonexistent girlfriend raises the possibility of legal repercussions. Some legal questions surrounding the case and their answers:

Q: Is anyone in real trouble? Will any of the participants face criminal charges?

A: No. There is the theoretical possibility of a federal charge of wire fraud or cyberfraud as the result of the participants' use of the telephone and the Internet, but a cyberhoax does not rise to the level of a cybercrime. No one profited from the scheme. No one is the victim of any form of extortion. The only damage anyone suffered is the damage to Te'o's ego and reputation.

Any prosecutor who reviews the situation will quickly conclude that it was a joke that was funny for some and sick for others and that there is no one who qualifies as a victim of a crime. Police officers, investigators and prosecutors want to invest their time and their resources in situations that involve serious injury and damage. They are not interested in helping someone in a situation like Te'o's get even for embarrassments he has suffered.


Q: If Te'o is an innocent victim, is there anything he can do?

A: Yes. If he can identify the individuals responsible for the hoax, Te'o could file a damages lawsuit against the perpetrators. In his lawsuit, Te'o would accuse them of what lawyers and judges describe as an "intentional tort." A tort is wrongful conduct that harms another person.

Most tort cases are based on carelessness or negligence. Te'o's case would be based not on inadvertent conduct but on the deliberate and elaborate scheme that resulted in the hoax. To succeed in the lawsuit, Te'o must show that the hoaxsters deliberately made him the target of their efforts and that their conduct damaged him.

The damage would include the embarrassment and humiliation he is suffering now. More importantly, it would include any reduction in his value as an NFL prospect. Many experts viewed Te'o as a first-round draft choice. If he, say, drops to the third round, he would argue that the hoax caused teams to reconsider his value and caused him to lose the huge bonus that is paid to a first-round selection. The lawsuit would prolong the agony of the hoax, but it would help Te'o establish the veracity of his claim that he is an innocent victim of a sick joke.


Q: If Te'o participated in the hoax, will there be legal consequences for him?

A: No. In the absence of any physical injury and any economic loss, the hoax would not produce legal problems for Te'o. Police and prosecutors would conclude that it was a harmless prank and decline to prosecute. Nor would Te'o face any possibility of a civil lawsuit. He might have disappointed or angered a few people with his (conjectured) participation, but, even in a culture as litigious as ours, this would not result in litigation against Te'o.


Q: Notre Dame stands behind Te'o and is supporting him. Why wouldn't the university step aside and wait to learn more about the hoax and the possibility of Te'o's participation in it?

A: Like any university that features big-time football (Penn State, Ohio State, Miami, USC), Notre Dame feels the need to protect its "brand" and the enormous income it enjoys from football.

Jack Swarbrick, the school's director of athletics, was firm, even emotional, in his support of Te'o on Wednesday when the university was forced to respond to the Deadspin report. Swarbrick asserted that he had hired private investigators to examine the situation and that he felt Te'o was an innocent victim.

Would Swarbrick or other Notre Dame officials shade the truth? After powerful winds blew Declan Sullivan down from a crane while he was filming football practice -- killing him -- Notre Dame officials said, in response to questions about why practice was held outside, that the weather was not dangerous. Official weather reports confirmed winds of more than 60 mph. After Lizzy Seeberg realized Notre Dame was doing nothing about her report of a sexual assault by a football player and committed suicide in September 2010, Swarbrick and other Notre Dame officials initiated a campaign of character assassination against Seeberg with a series of false allegations.

Their campaign against Seeberg was documented in a lengthy report by Melinda Henneberger in the National Catholic Reporter. Te'o was the star of the best Notre Dame team in recent memory, and, even better, he was a lovable guy with a warm and fuzzy story. Was Swarbrick protecting the Notre Dame brand in his support of Te'o? Was he protecting Te'o? We know from the investigations at Penn State that university officials will go to great lengths to protect their football programs.


Q: Does Notre Dame face any legal problems as the result of the hoax?

A: No. Whether Te'o was a victim or a participant, the university has no legal worries. It has no duty to protect an adult student from Internet dirty tricks, and it has no duty to stop a prank that causes neither injury nor economic loss. Even if the hoax somehow hurt someone other than Te'o, the university has no legal responsibility. Its only concern is the damage the hoax is doing to the reputations of the school and the football program.

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