Thabo Sefolosha sues the NYPD: Analyzing each side’s case

Atlanta Hawks forward Thabo Sefolosha’s case against the NYPD has several questions that need to be answered.

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Atlanta Hawks forward Thabo Sefolosha has turned to offense in his ongoing dispute with the New York Police Department over his arrest last year outside a Manhattan nightclub. Sefolosha, whom a jury acquitted of resisting arrest and obstruction, filed on Wednesday what could become a multi-million dollar federal lawsuit against the NYPD and five officers. Although the 10-year NBA player continues to enjoy a productive career, he maintains in his filing in the U.S. District Court for the Southern District of New York that the officers caused him permanent physical and reputational injuries.

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The incident and its aftermath

Last April, Sefolosha was standing outside the nightclub 1 OAK while police investigated the stabbing of Indiana Pacers forward Chris Copeland. At the time, Sefolosha and teammate Pero Antic were waiting for a driver to pick them up. Sefolosha’s attorney, Alex Spiro, contends that because Sefolosha was “a large black man wearing a hoodie” who happened to be standing nearby, police officers began to provoke him. Sefolosha and the officers then began to argue, during which time Sefolosha called a 5' 6" officer a “midget.” The argument would only escalate and officers arrested Sefolosha for obstructing the administration of government and resisting arrest.

During his arrest and detainment, Sefolosha maintains he suffered serious injuries, including a broken fibula and ligament damage to his ankle, at the hands of allegedly abusive police officers. Sefolosha’s lawsuit asserts that the officers “attacked and jumped on [Sefolosha] without any basis; forced him to the ground; used excessive and unnecessary force; [Officer] Rossi used a baton; handcuffed him and arrested him, causing severe personal injuries.” Those injuries prevented Sefolosha from playing in the 2015 NBA playoffs and required surgery and rehabilitation.

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Last October, a jury found Sefolosha not guilty of the criminal charges. Sefolosha then filed a notice of claim with the New York City Comptroller’s Office of an intention to sue and claimed up to $50 million in damages. Antic sued the NYPD on Saturday, while Sefolosha filed his lawsuit Wednesday.

How Sefolosha can prove liability and how the NYPD can rebut Sefolosha’s case

Sefolosha’s lawsuit raises several claims, including false arrest, use of excessive force and malicious prosecution. Collectively these claims assert that the officers had no lawful basis to provoke, detain and attack him, and Sefolosha’s race as an African-American was—according to the complaint—“at least in part” a motivation to confront him. Sefolosha needs to prove his case by a preponderance of evidence, which means showing that it is more likely than not the officers falsely arrested and mistreated him. He would also need medical records to convince jurors that the injuries he suffered were in fact caused by the officers.

Assuming Sefolosha’s lawsuit advances to pretrial discovery, his attorneys would likely seek employment records from the officers. Those records would help Sefolosha’s attorneys evaluate if the officers have previously been alleged to have acted in racially insensitive ways. Sefolosha’s attorneys would also call eyewitnesses to the stand to help him explain the scene outside the nightclub.

In their defense, the NYPD and the officers will argue several points. For one, they’ll assert that they possessed probable cause to arrest and detain Sefolosha. They might also insist that they adhered to standard operating procedures in investigating the crime scene and interviewing witnesses. Further, these defendants are poised to contend that by insulting the officers, Sefolosha acted in a hostile and confrontational way. Eyewitness testimony by those watching the incident could also aid the NYPD’s defense, so long as those witnesses corroborate the officers’ account. In addition, the NYPD might attempt to raise questions about when Sefolosha’s injuries occurred.

Keep in mind, Sefolosha being found not guilty of committing crimes does not automatically mean it is more probable than not that the officers broke the law. A criminal and civil trial each asks a different question pertaining to different parties and with different accompanying burdens of persuasion: In the criminal trial, jurors were asked if Sefolosha was guilty beyond a reasonable doubt, whereas jurors in the civil trial will be asked if the officers were probably at fault. It is possible that one set of jurors could be unconvinced that Sefolosha committed crimes while another could be unconvinced that the officers broke civil laws.

If Sefolosha can prove the police broke the law, what kind of damages would he be awarded?

Assuming Sefolosha proves the officers broke the law and caused his injuries, he would be well positioned to establish that he endured significant pain and suffering. After all, Sefolosha suffered a leg fracture, multiple torn ligaments and cosmetic deformity and then underwent corrective surgery, which called for lengthy rehab. Those all constitute very painful experiences. Moreover, it would be fair to say Sefolosha, who probably received more media attention for this incident than he has at any other point in his NBA career, suffered some degree of embarrassment and humiliation.

For its part, Sefolosha’s lawsuit lists numerous injuries that Sefolosha attributes to unlawful police conduct. Those injuries include:

... an injury to his right leg and other parts of the body; fracture of right fibula; required surgery with insertion of hardware; torn ligaments; cosmetic deformity; scarring; extreme pain and suffering; mental anguish and distress; psychological injury; required hospital and medical care and attention, and will require such care and attention in the future; requires physical therapy; required to wear a boot and cast; osteoarthritic changes are anticipated; had difficulty standing; difficulty ascending and descending stairs; unable to attend to his usual duties, leisure activities and vocation; has become partially disabled; required medical care and treatment and will require such care and treatment in the future; plaintiff’s career has been adversely affected; plaintiff’s reputation has been harmed; plaintiff suffered emotional harm and mental anguish and distress; and plaintiff has been otherwise damaged, all of which damages are permanent in nature and continuing into the future.

Sefolosha’s complaint also asserts that the officers have catastrophically damaged his NBA career, both on the court and off:

... his basketball career has been jeopardized, his reputation and image have been damaged; images of the plaintiff in handcuffs appeared and still appear on the internet on a worldwide basis; plaintiff believes he has lost endorsements; plaintiff’s basketball career has been shortened and his value as a player has been adversely affected since plaintiff is now “damaged goods” in the sports world.

Even if Sefolosha can establish that the police officers caused his injuries, those injuries might not have damaged his NBA career as significantly as Sefolosha’s attorneys believe. Sefolosha is an unusually favorable class of employees. He is an NBA veteran with a guaranteed multi-year, multi-million dollar contract. The contract paid him $4.15 million in 2014–15, pays him $4 million in 2015–16 and will pay him $3.85 million in 2016–17.

Sefolosha could nonetheless insist that he is poised to earn less money as a free agent in July 2017 because of lingering injury effects, or because of the incident’s accompanying stigma. At least according to some metrics, however, Sefolosha has performed better this season than he has throughout his NBA career. For instance, he’s connecting on 51.5% of his field-goal attempts this season—the highest field goal percentage in his entire NBA career, and well above his career average of 44.8%. Sefolosha is also playing slightly more minutes than his career average (23.4 minutes per game versus a career average of 23.0 minutes) and he’s averaging more rebounds per game (4.5) than he has in any season since 2009–10. To be sure, Sefolosha is more heralded for his defensive play than for his offensive contributions. Yet by all accounts, he continues to be a strong defensive player for the Hawks.

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Sefolosha’s damages could also be limited by the fact that the next time he’ll need to negotiate an NBA contract he’ll be 33-years-old. The average NBA player age this season is 26.7 years old, and by age 33, natural age progression might diminish Sefolosha’s athleticism and he could thus struggle to attract significant interest from NBA teams. To the extent any decline in Sefolosha’s play is age-related—as opposed to injury-related—his damages would not be as substantial as he would hope. To further this point, Seflososha and the NYPD could call expert basketball witnesses to testify. They would be asked to explain how Sefolosha’s earning power is comparatively impacted by a natural decline due to age versus an unnecessary decline due to injuries.

It is also not clear how Sefolosha’s endorsement income has been impacted by the incident. While by no means obscure, Sefolosha has never been among the most marketable NBA players. If he has landed endorsement deals in the past or if he lost endorsement deals due to the incident, his argument for damages would be strengthened. But if he has never earned much endorsement income and if didn’t lose any deals—or potential deals—because of the incident, damages along these lines would be harder to prove.

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Settlement always a possibility

There is a good chance Sefolosha eventually works out a settlement with the NYPD and officers. Like many cases, Sefolosha’s case is at least in part shaped by a broader context of issues. Along those lines, the NYPD has drawn criticism for its treatment of minorities, including incidents involving athletes. Last September, for example, an NYPD officer mistakenly arrested retired tennis star James Blake. A high-profile trial involving an NBA player might thus not be a wise strategy for the NYPD.

Sefolosha, for his part, might also have good reason to seek a settlement. As explained above, he could struggle to prove he suffered millions of damages and there is no guarantee a jury would find the NYPD at fault in his arrest.

SI.com will keep you informed on any developments in this matter.

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 and is on the faculty of the Oregon Law Summer Sports Institute.