When Eric Murdock released a video showing Rutgers coach Mike Rice being abusive and hostile towards his basketball players, the video set off a firestorm of criticism that led to Rice's firing and the Athletic Director's resignation.
Initially, people seemed happy that Mr. Murdock shed light on this issue. But now, the tide seems to be turning. There are now reports that the FBI is investigating him for potential extortion. Really? Why?
While there seems to be a dispute regarding whether he was fired or resigned in 2012, it seems that his lawyer sent a letter to Rutger's counsel demanding $950,000 to settle his employment dispute with the university or he would file suit. Apparently no such settlement took place because the video was released last week and a wrongful termination and whistle-blowing lawsuit was filed shortly thereafter.
While few if any of us know all of the relevant facts to opine on the legitimacy of his lawsuit allegation(s), it is strange that this would be an issue of concern for the FBI. After all, settlement demands in employment disputes are common. Indeed, they frequently are sent to opposing counsel prior to the filing of a lawsuit. And while $950,000 sounds like a lot of money, this sounds like it was merely an initial demand (not to mention the fact that he might have been a highly compensated employee and this amount might only equate to a few years of wages).
Initial demands are usually excessively high, just like initial counteroffers are generally excessively low. This is the essence of the negotiation dance. Eventually, the parties either reach a compromise or an impasse. How can such an attempt to resolve be deemed extortion when it is merely an invitation to engage in negotiated dispute resolution before the stacks are raised for everyone via a video being released and a lawsuit filed? Furthermore, why would we want to declare a person a criminal for shedding light on this type of student abuse? I see a bigger public policy issue with chilling the speech of whistle blowers by subjecting them to extortion investigations rather than a concern with a public concern for extortion.
My first thought was that such an FBI probe, if it is indeed taking place, is totally inappropriate - especially with the settlement demand letter being protected by Federal Rule of Evidence 408 confidential settlement negotiations (see text of rule below). However, a closer reading of Rule 408 (particularly a(2)) reveals that the rule does not protect a person if there is a public agency investigating a crime.
But where is the crime? If sending a settlement demand to resolve an employment dispute is an extortion crime, then the FBI will be plenty busy investigating hundreds of thousands of "criminals" this year. Maybe this is all much ado about nothing. Maybe this is just Rutgers or a concerned alum fabricating a story to take the bright light off of the institution by criminalizing their nemesis. Or maybe the story is true and the FBI is investing valuable resources looking into this matter. I hope this investigation is not happening, at least not at this early stage. After the civil case is resolved, such an investigation might make more sense - especially if the case is dismissed by the court as frivolous. But until then, I am sure the FBI has bigger issues to deal with. Thus, my first thought and my current/final thought are the same. Such a probe, if it is indeed taking place, is totally inappropriate.
FRE 408 Compromise and Offers to Compromise:
(a) Prohibited uses.—Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish—or accepting or offering or promising to accept—a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.
(b) Permitted uses.—This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.
(As amended Apr. 12, 2006, eff. Dec. 1, 2006.)