Legal analysis of affidavit claiming Butch Jones called player ‘traitor’

Breaking down the legal implications of an affidavit that came to light Wednesday in which a former Tennessee football player claims that Butch Jones called the player a “traitor” for assisting an alleged victim of sexual assault.

According to an affidavit of former University of Tennessee football player Drae Bowles, Volunteers head coach Butch Jones criticized Bowles in November 2014 for assisting a female student-athlete who had claimed that Bowles’s teammates, A.J. Johnson and Mike Williams, raped her. (Johnson and Williams were later charged and face criminal trials this summer.) Bowles’s allegation is referenced in an amended and expanded Title IX complaint filed Wednesday by eight unnamed women in the U.S. District Court for the Middle District of Tennessee. Six of the plaintiffs contend they were victims of rape or sexual assault caused by Tennessee football and men’s basketball players, and all eight contend that the university acted in “deliberately indifferent” ways both before and after the alleged incidents.

The lawsuit, originally filed on Feb. 9, has attracted considerable media attention partly because it references a locker-room incident involving Peyton Manning from 1996. An allegation that the 48-year-old Jones, who last season coached the football team to a 9–4 record and led the Volunteers to their second consecutive bowl victory, acted so heartlessly will only increase attention.

Why Bowles’s allegation is damaging to the University of Tennessee

The Bowles allegation is damaging to Tennessee for at least three reasons. First, it supports the plaintiffs’ theory that the university, through its officials, created a “hostile sexual environment” on campus. According to the plaintiffs, school officials intentionally downplayed and obfuscated sex crimes committed by student-athletes in order to protect a famed and lucrative athletic program. If Jones criticized a player who had helped a classmate allegedly raped by his teammates, the plaintiffs could more credibly prove that such a “hostile sexual environment” existed.

Affidavit: Butch Jones called player ‘traitor’ for aiding alleged rape victim

Second, Bowles’s allegation directly implicates Jones. This places the university in a potentially awkward position of defending the state’s highest-paid public employee—the university reportedly owes Jones approximately $20.5 million through 2020—from allegations of callous and obstructing conduct. Moreover, the allegation could cause university attorneys to closely study Jones’s contract in the event the university decides to fire him. The contract may contain provisions that enable a firing with cause (a memorandum of understanding for his contract indicates a for-cause provision exists).

Third, Bowles’s allegation is a reminder to university officials of just how damaging this Title IX lawsuit could prove. This lawsuit could take months, if not years, to play out, during which time additional women may join the lawsuit. It is possible that other allegations similarly damaging to the one leveled by Bowles could trickle out to a captive media. If the university intends to negotiate a financial settlement to end this lawsuit, Wednesday’s development might accelerate its timetable.

Why Bowles’s allegation might not withstand scrutiny

There are reasons to question Bowles and his accusation. First, there appears to be inconsistency between Bowles’s sworn testimony before an earlier grand jury investigating the alleged rape and his sworn affidavit in the Title IX lawsuit. Bowles, according to published reports of the grand jury testimony, told grand jurors that the alleged victim did not mention that she had been assaulted.

Significance of contradicting accounts from Manning, Naughright

He also reportedly testified that he was not aware of any possible sexual assault. In the amended complaint, however, the plaintiffs’ attorneys write, “Jane Doe IV told Bowles in the car about the rape and, after discussion, she called 911 from his car to report the rape to the authorities.” Equally notable, Bowles did not appear to reference any “traitorous” statement by Jones during his grand jury testimony. These differences are important because Bowles’s affidavit for the Title IX lawsuit expresses, under oath: “I have read the allegations in the Plaintiffs’ amended complaint and attest that they are true and correct with respect to the statements and descriptions of events pertaining to me.”

If Bowles’s recollection of what took place has changed dramatically between testimonies, the reliability of his statements can be questioned and doubted.

Second, it may be difficult to verify Bowles’s contention that Jones told him he had “betrayed the team.” Bowles insists that Jones relayed such a sentiment because Bowles had assisted Jane Doe IV. It may also have to do an incident the next day, when Bowles got into a locker-room fight with Tennessee linebacker Curt Maggitt (who was A.J. Johnson’s roommate). According to Bowles, after he told Maggitt that Jane Doe IV had been raped, “Maggitt became violently upset [and] said that Bowles was trying to ‘f--- up AJ.’” Then, according to Bowles, Maggitt “suddenly punched Bowles in the mouth with great force, causing Bowles’s lip to bleed.” Bowles also claims that he “called” Jones to let him know what had happened, and at that time Jones berated Bowles for disloyalty. Bowles, who has since transferred to UT-Chattanooga, insists that Jones’s belittling remarks caused him to break down and cry. Bowles also maintains that Jones later called him to apologize.

​As the lawsuit has only just begun, Jones has not yet provided sworn testimony of his account of any conversation(s) with Bowles. It is possible that Jones could reject the account offered by Bowles. He might also reframe it. For instance, Jones might acknowledge that he expressed to Bowles an opinion that Bowles had betrayed the team. Jones, however, could say he relayed such a view not because Bowles assisted a fellow student in need, but rather because Bowles had gotten into a fight with a teammate over it. Regardless of what Jones says under oath, unless there were witnesses to any conversation and unless either of the men later spoke to other witnesses about the conversation, it could devolve into a marginally valuable he said, he said piece of evidence.

Culture Clash: Title IX suit shines light on problems with Tennessee athletics

Lastly, watch for Tennessee to claim Bowles’s testimony for the Title IX lawsuit was designed to protect his image and perhaps help him should he later sue the school. Along those lines, the amended complaint states, “Drae Bowles had acted with the utmost kindness and strength of character toward Jane Doe IV, her friends and Jane Doe V. For his kindness and courage he was beaten up, called a traitor by his head football coach, and ostracized from the team by Coach Jones and other players.” Tennessee may take issue with this favorable portrayal of Bowles.

In a statement issued Wednesday night, Jones categorically rejected Bowles’s allegations and vowed to fight them. Here is his statement in full:

“The assertion that I ever attempted to belittle or demean a young man for taking action to help another person is absolutely false. To the contrary, I did all I could to assist the former student in question. During the course of the judicial process, campus officials, as well as the young man’s own words, will clearly establish that I have done nothing wrong. I will fight all of these false attacks on my character, and I know that once this process has been completed, my reputation will be affirmed.”

SI.com will continue to follow developments in the Title IX case against Tennessee and provide real-time legal analysis.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law is on the faculty of the Oregon Law Summer Sports Institute.