Could Gareon Conley Legally Prove That Rape Allegation Caused Draft Slide, Financial Harm?
In a case that raises intriguing questions about the impact of damaging accusations on a player’s NFL draft prospects and endorsement opportunities, Oakland Raiders cornerback Gareon Conley is countersuing a woman who accuses him of sexual assault. Conley, whom the Raiders drafted with the No. 24 pick in the first round of the 2017 NFL draft, contends that reputation-damaging accusations caused him to fall in the draft and lose lucrative endorsement deals. The litigation is being heard before Judge Joseph Russo of the Cuyahoga County (Ohio) Common Pleas Court.
Competing points of view of two people who interacted one evening in Cleveland
During the early morning of Sunday, April 9, 2017, two Cleveland Division of Police officers received a radio assignment to investigate a possible sexual assault at the Westin Cleveland Downtown hotel. Upon arriving, the officers were met by Brooke Puscian, a 23-year-old resident of Ohio. Puscian told them that a man had just raped her in hotel room 1621. She described the appearance of the alleged rapist, including his race, physique and approximate age. Puscian also mentioned that the man “wouldn’t take his sunglasses off” and that he had an Ohio State tattoo on his left forearm.
Hours earlier, Puscian and her friends were dining at the Barley House, a popular restaurant and bar in downtown Cleveland. Conley was also at the Barley House. He and Puscian had never before met.
From that point on, the facts about the evening are in dispute.
One discrepancy is whether Conley and Puscian first spoke with one another at the Barley House or at the Westin hotel; if they first spoke in the hotel, it’s not certain where in the hotel that conversation occurred. Doubts about the location of a first interaction might not sound like a critical point, but it can prove important in a case where the believability and recollection of both the accuser and the accused are so crucial.
To that end, neither Puscian’s police statement nor her complaint (as authored by attorneys Patrick Thomas and Joseph Ritzler) indicates that she and Conley spoke at the restaurant. In contrast, Conley’s attorneys—John Camillus and Kevin Spellacy—insist that their client and Puscian conversed at the Barley House. They add that Puscian “learned about who Conley was, including that he was a star football player at Ohio State and was soon to be drafted into the NFL.”
At about 2:45 a.m., Puscian and her friends exited the Barley House and walked toward the Westin. The hotel is located about a half-mile away from the restaurant. She says she intended to visit a friend who was staying at the hotel. Conley’s account notes that he joined Puscian for this walk to the hotel, where Conley “intended to stay the night.”
The accounts continue to differ in regard to what took place at the Westin. According to the police officers’ narrative, Puscian recalled meeting Conley while riding in the hotel elevator. In her complaint, Puscian describes Conley approaching her while she was in the hotel lobby. Conley’s attorneys dispute these depictions. They insist that Puscian told “untruths” about where they first conversed. As noted above, Conley’s attorneys contend the first meeting took place at the Barley House and that is where Puscian allegedly learned about Conley’s impending entry into the NFL.
Puscian stresses that Conley “requested” that she and her friends accompany him to his hotel room for the “purpose of obtaining beverages to bring to [Puscian’s] male friend’s room.” There appears to be agreement that Puscian went to Conley’s room while her friends did not.
Upon entering Conley’s hotel room, Puscian says she noticed a man (identified only as “John Doe”) and a woman. As Puscian recalls the encounter, the man and woman then entered the bathroom, closed the door and soon thereafter caused a “commotion” while in the bathroom. Meanwhile, Puscian sat on a bed. Conley allegedly then asked Puscian if she “wanted to have a foursome” with him, the man and the woman. Puscian declined but told Conley that she would be interested in watching the man and woman in the bathroom have sex (Puscian says she made this comment to avoid having sex with Conley).
Puscian maintains that she then got up from the bed and walked toward the bathroom. While doing so, Puscian says Conley grabbed her, spun her around, unbuttoned her pants and pulled her pants down. Puscian asserts that Conley then forcibly had sex with her. At no time, according to Puscian, did she ever express or imply consent to have sex. In fact, she recalls screaming, “No stop, it hurts!” After the sexual act, Conley allegedly directed Puscian to leave his room.
As depicted in legal filings authored by Conley’s attorneys, Conley’s depiction of the hotel room encounter differs widely from that of Puscian. Conley recalls Puscian asking him if he would join her in watching the couple in the bathroom have sex, and that Conley refused this request. Conley adds that Puscian was “undeterred” and “proceeded to open the bathroom door and tell Conley’s friend and his female acquaintance that she wanted to watch them have sex.” Soon thereafter, Conley claims, “Puscian pulled down her own pants and bent over in front of Conley, inviting him to have vaginal intercourse with her.” Conley says he “refused vaginal intercourse” with Puscian.
Conley’s complaint further claims that Puscian “appeared embarrassed” about Conley declining to have sex with her. The complaint also contends that Puscian felt additional humiliation when Conley asked her to leave the room. In addition, the complaint asserts that after the woman in the bathroom left Conley’s hotel room, Puscian conversed with her on the hotel floor and they rode the same elevator down to the lobby. While in the lobby, Puscian—again, as depicted by Conley—encouraged the other woman to make a false rape claim against Conley.
After meeting with officers in the lobby, Puscian was admitted to a local hospital and completed a rape kit exam there. She submitted other evidence, including clothing.
When the officers entered room 1621, they found two men sleeping there. The two men told officers that Conley “was with the white girl,” and that she and Conley were at some point on the same bed. However, they stressed that Conley “never touched her” and that “the white girl got bad because she got kicked out of the room.” Conley was not in the room when the officers arrived. The officers found no relevant evidence in the room, which they described as appearing normal.
Two days before the draft, the story breaks
On April 25, 2017, TMZ.com reported that Conley had been accused of rape and that he steadfastly denied the allegations. Given its retelling of the accusations, TMZ.com appears to have obtained the Cleveland police narrative and published a story based on it. Within hours, national media outlets—including SI and NFL.com—picked up the story and ran their own articles.
The timing of the accusation could not have been much worse for Conley (though the timing was not quite as bad as what Ole Miss offensive tackle Laremy Tunsil experienced a year earlier—a bong video of Tunsil surfaced right as the 2016 NFL draft began). For Conley, the first round of the 2017 NFL draft was set to start in 48 hours. Conley and his representatives hastily arranged for him to take a lie detector test before the draft started. They hoped that Conley passing it (which he did) would mitigate the fallout of the rape accusation.
Until the rape accusation surfaced, many draft experts had predicted that Conley would be selected in the middle of the first round. Under the NFL’s rookie wage scale, mid-first round picks in 2017 were due to sign four-year contracts worth about $13 million. Instead, Conley found himself available for the Raiders to draft with the No. 24 pick. Per the wage scale, Conley signed a four-year deal worth $10.5 million.
Grand jury declines to indict Conley
On July 31, 2017, a Cleveland grand jury investigating Conley returned a “no bill.” This means the jurors did not find probable cause to indict Conley with any crime. Probable cause requires enough evidence to convince the grand jury to have a reasonable belief that a crime was committed and that the target of the grand jury—here Conley—was responsible. In Ohio, grand juries consist of nine randomly selected registered voters. For a “bill of indictment” to be issued, at least seven of the jurors must vote to indict. If seven do not vote to indict, then a “no bill” is returned.
It’s unclear what took place during Conley’s grand jury proceeding. This was expected: Unlike most courtroom proceedings, grand jury proceedings are conducted in private. Prosecutors also run grand jury proceedings and share with jurors their depiction of events. Further, only the prosecutors call witnesses to the stand and defense counsel has no right to cross-examine those witnesses. Even the target of the grand jury has no right to be present.
Conley has injury-filled rookie season
Conley played in only two regular season games for the Raiders in 2017. Conley suffered a shin injury during June minicamp. The injury lingered for months and kept him out of action. In November, the Raiders placed Conley on the injured reserve, thereby ending his season. Conley then had shin surgery. He has apparently recovered and has participated in recent offseason workouts. Assuming his health holds up, Conley is expected to play in the 2018 season and compete for a starting position.
Puscian sues Conley
Although Conley was not charged or indicted (let alone convicted) of a crime, he could still be found liable under civil law. Criminal law and civil law feature different burdens of proof. In a civil case, the plaintiff must prove the case by a preponderance of evidence. This means the jury must believe it is more likely than not that the plaintiff’s account is accurate. In a criminal prosecution, prosecutors must prove the case beyond a reasonable doubt—a much higher bar.
On April 6, 2018, Puscian sued Conley and 11 other defendants—including the Westin Cleveland Downtown hotel and its parent company, Marriott International—for a variety of claims. As to Conley, Puscian sued him for assault, battery, false imprisonment and intentional infliction of emotional distress. She maintains that his actions caused her to suffer severe physical pain and emotional suffering. Puscian also asserts she incurred medical expenses as a result of the alleged assault and will incur additional health care costs in the future.
Conley countersues Puscian
When faced with a pending lawsuit, many celebrities try to settle with an accuser before any claims appear in a court document and thus in a public record. This is true even if the celebrity regards the claims as false or frivolous. Often, the celebrity is willing pay the accuser an amount of money to, essentially, go away and keep quiet—in that scenario, the celebrity would have circumvented the notoriety and time consumption associated with defending a lawsuit.
Litigation also presents the risk of pretrial discovery. Even if an accused person is innocent, he or she is typically counseled by their attorney that litigation can lead to the pretrial discovery process. Such a process involves the taking of depositions and sharing of sensitive evidence. Reputation-damaging information can surface in discovery.
Conley isn’t persuaded by these considerations. Not only has Conley refused to settle with Puscian, but he has also countersued her. Evidently, Conley wants to go to court and prove his innocence.
On July 2, 2018, Conley sued Puscian for malicious prosecution and for frivolous conduct in filing a civil claim. These claims center on Conley’s assertion that Puscian knowingly made false statements to the police in hopes that they would arrest Conley and harm his career. “Puscian,” the countersuit states, “either made the false allegations out of malice because she was upset that Conley refused to have sex with her, or to position her to be able to squeeze a pay-off from Conley, or both. But the allegations were undoubtedly made out of malice.”
Conley did not sue for defamation, despite his assertion that Puscian lied to others about him. This is most likely because of the “litigation privilege”—statements and claims made as part of the legal process are normally exempt from defamation.
Can Conley prove damages? Even if he wins, would he be able to collect damages?
Conley faces a difficult task in trying to establish that the accusation caused him to fall in the draft.
Prior to the accusation surfacing, many draft experts had predicted that Conley, who stands 6’0” and weighs 195 pounds, would be taken in the middle of the first round. For instance, on March 27, NFL.com’s Lance Zierlein projected Conley would be taken No. 14 by the Philadelphia Eagles. A day later, former Washington Redskins general manager Charley Casserly anticipated that Conley would be picked No. 13 by the Arizona Cardinals. On April 4, NFL.com’s Daniel Jeremiah envisioned Conley would go No. 11 to the New Orleans Saints. On April 15, CBS Sports’s R.J. White pegged Conley as going No. 14 to the Eagles. Two days later, ESPN’s Tony Grossi agreed with White and forecasted Conley at No. 14. These relatively favorable assessments of Conley focused on his success at Ohio State and that he excelled at the 2017 NFL scouting combine.
Not all draft experts were quite as sold on Conley. On April 6, USA Today’s Nate Davis predicted that Conley would be taken No. 22 by the Miami Dolphins. On April 18, SI.com’s Chris Burke ranked Conley as the 31st-best prospect in the draft. Four days later, The Sporting News’s Vinnie Iyer projected that Conley would go No. 27 to the Kansas City Chiefs. These predictions suggest that Conley might not have fallen in the draft, but instead landed about where he was expected to go.
After the accusation surfaced, several draft experts revised their predictions for Conley. On April 26, NFL.com’s Chad Reuter took Conley off his board. Several other draft experts did the same. On April 27, The MMQB’s Albert Breer quoted an AFC executive, who told Breer, “Conley’s going to drop. It could be BS, but uncertainty prevails, and I don’t think he’s cleared by Thursday.” Indeed, the accusation was not resolved by the draft. It does appear, however, that Conley passing a lie detector test allayed the concerns of at least one team: the Raiders, which drafted Conley at No. 24.
As noted above, Conley would have earned additional millions had he been drafted higher. Spotrac shows the contract amounts for rookies and their draft slot. If Conley had been drafted 14th, he would have gotten a four-year deal worth $12.9 million instead of the four-year, $10.5 million deal he signed. Conley also contends he would have signed “multiple endorsement deals, including a contract with Nike,” had he not been accused of rape.
One hurdle for Conley is that draft predictions are hardly a science. Even the most skilled draft analysts get many of their predictions wrong. In 2005, Cal quarterback Aaron Rodgers unexpectedly fell from a projected top-five pick to 24th, where the Green Bay Packers—despite having Brett Favre on their roster—took him. Two years later, Notre Dame quarterback Brady Quinn, who some mock drafts had going as high as No. 3, was available for Cleveland to select at No. 22. In 2016, UCLA linebacker Myles Jack—whom four SI draft experts predicted would go in the top 10—was around for the Jacksonville Jaguars to nab in the second round at No. 39 due to concerns about Jack’s knee (those concerns proved misplaced as Jack hasn’t missed one regular season game in his first two seasons). In the 2018 draft, LSU running back Derrius Guice fell from a projected first-round pick to No. 59 in the second round purportedly due to off-field concerns.
There are plenty of other examples of players projected to be drafted in certain ranges “falling” for known or unknown reasons. The “fall” is only in regard to draft expectations. In reality, the player didn’t “fall.” Rather, each team drafting ahead of where the player was drafted simply preferred someone else at that slot.
Conley proving the accusation impacted his draft status also raises the issue of whether any team drafting ahead of the Raiders would admit that they planned to draft Conley. It’s unlikely a team executive would testify that, for the allegations against Conley, the team planned to take Conley instead of the player the team ultimately picked. Teams usually try to reaffirm and rationalize why they picked the player they selected. The decision to draft a particular player is also fluid, as evidenced by numerous accounts of draft “war rooms”—usually there is on-going debate by team executives as the draft plays out.
As to endorsement deals, if Conley possesses correspondences from companies that they planned to offer him endorsement deals but rescinded that plan upon accusations of rape, such correspondences would go a long way for Conley in proving actual harm.
Conley winning a lawsuit and being awarded damages doesn’t mean he would actually be paid. It’s unknown if Puscian has the financial wherewithal to pay a sizable judgment. For Conley, pursuing a case is likely more about restoring his reputation than it is securing a large amount of money from the person he contends falsely accused him.
More likely, Conley and Puscian will resolve their dispute out of court in a settlement. The chances of them going to trial are fairly slim.
Strategies for draft-eligible players to confront “last-second” accusations
As detailed above, a player proving in court that an accusation caused him to be drafted lower than he expected is conceptually challenging. Even if a player can prove such a point and win a lawsuit, his accuser may lack the financial means to pay a civil judgment. In other words, once an accusation happens and inflicts damage to a player’s reputation, the damage may be irreparable.
With that in mind, a player and his agent should have plans in place to deal with the possibility of an unexpected public relations crisis prior to the draft. The strategy should attempt to reverse the damage to the greatest extent possible. In this regard, it appears that Conley was well advised. He took and passed a lie detector test and his representatives at Vantage Management Group aggressively countered the accusations. Instead of falling out of the first round, Conley was drafted 24th, which is about where some draft experts predicted he would land.
Players must also be mindful of their off-field activities. Avoiding situations that could lead to accusations is a smart approach. While that is (of course) easier said than done—especially for a young person—the reality is that players who hope to attract the interest of NFL teams need to show their maturity level is high and that they are ready to be professionals.
The MMQB will keep you updated on the Conley litigation.
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Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.