There Is More On The Line Than Jameis Winston's Reputation

If you are not following the Erica Kinsman lawsuit against former Heisman winner and current Tampa Bay Buccaneers quarterback Jameis Winston, you should be. It does not matter whether you are a football fan or whether you know how to follow a case or whether you believe her story. If you are a living human being, you can learn a lot about the legal system and the sports industry's stigma of sexual assault from what is going down and what could go down. Here are four reasons why:


You have likely heard of "defamation." It is also likely that you do not know what it means exactly, but this case should be a fantastic demonstration for us all. Defamation law rests in the damage to one's reputation. An individual's external relationship with the community can be hurt through what another person says (i.e., slander) or writes (i.e., libel) about him or her. The key is that defamation is not a claim for mere injury to an individual's feelings or injury to one's own esteem. There must be some material statement that directly injures the person's relationship with others. A plaintiff must show four elements to support a defamation claim, but where the plaintiff is a public figure with a private concern, there is a tougher standard:

  1. A false defamatory statement, written or oral, purporting to be fact - The Restatement of Torts states a statement is defamatory "if it tends so to harm the reputation of another as to lower hi in the estimation of the community or to deter third persons from associating with him." +
  2. Unprivileged Publication - The defendant must communicate that statement to a third party in a manner that is not expressly protected by the jurisdiction's laws. Basically, so long as the third party understands the meaning of the statement under the circumstances and that it refers to the plaintiff, it is considered published and communicated. +
  3. Damage - Some harm was done to the subject of the statement. +
  4. Negligence - The defendant knew or should have known the statement was false when he published the statement about the "private figure" plaintiff; OR
  5. Actual malice - Because Winston is a "public figure" plaintiff as a celebrity, the public has an interest in some matters of his life. Therefore, he has to take a larger step and prove that the defendant made the defamatory statement of private concern with malicious intent, not mere negligence.

Admittedly, some plaintiffs file half-baked defamation lawsuits that fail because they are whiners without a valid claim or because they do not know how to frame their case to show damages for which the law provides remedy. Frivolous cases like the former type give defamation lawsuits generally a salty reputation for those who provide evidence supporting a complete legal claim.

Here, Winston's counterclaim addresses each element, using lost potential endorsement deals as his injury, and attacks Kinsman's persistence to support the argument for malice, arguing she knew the statement she published was false and that she acted with reckless disregard for its falsity. "Ms. Kinsman is 0 for 6," the preliminary statement aggressively asserts in bold, underlined font, but it does not stop there. "However, Ms. Kinsman has been successful in one major area. She has mounted a false and vicious media campaign to vilify Mr. Winston with the objective of getting him to pay her to go away. Ms. Kinsman is motivated by the most insidious objectives—greed."

Click here to read Winston's counterclaim in its entirety. Click here to read Kinsman's initial complaint.


Initially, in 2012, Kinsman filed a claim against Winston alleging (1) sexual battery, (2) assault, (3) false imprisonment, and (4) intentional infliction of emotional distress. Later, Winston filed a counterclaim against her for defamation. (See the section above for the PDF links.)

The evidence that is bound to surface one way or another aside from what has been subpoenaed will reveal clues as to whether Winston is likely to have raped Kinsman. Each party will argue over what evidence is relevant and what evidence is within the scope of discovery in the first place. A lot of the evidence will apply to both parties' arguments, and you can see how lawyers can legally and zealously frame their contrasting arguments with the same pile of evidence. It is their job as litigators to paint a picture of their client's story since evidence sometimes can only say so much. So, if you follow this lawsuit, you can probably begin to develop your own opinion on what happened at Florida State University when this matter reaches trial.

So far, I believe Kinsman could win her lawsuit and not be found guilty of defamation depending on how much evidence the court is willing to let in. Regardless of the outcome and regardless of your personal belief, you can compare how a lesser offense like defamation pales next to an sexual assault offense like rape and the dots each party must connect to complete their respective picture.


Everyone has heard the hot mess that was the NFL's investigation into Deflategate. Now we may get a chance to see how the league, who has been highly criticized for its understanding of what hurts "the integrity of the game," handled a situation where a media-favorite had his individual integrity in question. Kinsman's attorneys have issued subpoenas to get their hands on Winston's communications with the NFL and the Buccaneers before he was selected as the number one draft selection last year. Absent a nondisclosure agreement protecting the sought-after communications, Kinsman's camp will get access to exactly what they want, but they may need a court order to accompany their demands before the team gives in.

The scary part for Winston, still, is that the subpoenaed information could reveal much more. Although Winston may not have directly said he did or did not rape Kinsman, the prosecution could look for inconsistencies in Winston's story. With those inconsistencies, the prosecution can attack Winston's credibility. If the prosecution successfully attacks Winston's credibility, well, the fact-finder would have an easier time giving Winston an unfavorable judgement.


This is the optimist in me speaking. Kinsman and Winston have a mediation date set on July 13 where they could discuss settlement options. The trial date is set for March 2017 at the moment, but because of the high likelihood of evidence battles and such, that date could be pushed back further. As the case unfolds and evidence is disputed through the inevitably long discovery process, we can use this as a public discussion.

Since she settled with Florida State University earlier this week in a separate claim which, by the way, has zero effect on this dispute, if she has the strength to continue to fight this and not accept a settlement before the trial ensues, things will go on public record. Those things could include names of potential witnesses who were told to do (or not do) certain procedures to satisfy institutional policies for the university, the state police, and the league. FSU cannot be accused a second time, technically, but this independent case would cast a shadow on the school if Kinsman does win. FSU and the NFL unquestionably have their reputations on the line right next to Winston's name, too. They can use this time in the spotlight to respond to the public demand for change.