Posted: Friday December 16, 2011 1:25PM ; Updated: Friday December 16, 2011 3:48PM
Michael McCann
Michael McCann>SPORTS LAW

Hurd arrest on drug charges could present troubling questions for NFL

Story Highlights

NFL receiver Sam Hurd's arrest could result in major scandal for NFL

Hurd was allegedly selling drugs to a "double digit" number of NFL players

Possibility that players bought cocaine could lead to troubling implications for NFL

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Sam Hurd allegedly sought weekly purchases of $700,000 in cocaine and marijuana.
Sam Hurd allegedly sought weekly purchases of $700,000 in cocaine and marijuana.
Jonathan Daniel/Getty Images

Sam Hurd's felony charges for intent to distribute cocaine clearly threaten the 26-year-old Chicago Bear's future. Less obviously, they may seriously impact other players, teams and the league itself. According to CBS Chicago, Hurd sold drugs to a "double-digit" number of NFL players. Law enforcement officials are reportedly in possession of those players' names. This developing story could emerge as a major scandal for the NFL and trigger reassessment of how the league prevents substances of abuse from infiltrating the game.

The criminal charges and legal aftermath

Hurd was arrested Wednesday evening after allegedly attempting to purchase four kilograms of cocaine from an undercover agent. He also reportedly sought weekly purchases of up to $700,000 in cocaine and marijuana. Law enforcement authorities portray Hurd, who played college football at Northern Illinois, as a prominent drug dealer in Chicago, engaged in about $2 million in "business" each month and an aspiration to do much more. If the allegations are true, it would seem that Hurd was moonlighting as a pro football player, with a primary occupation as a drug kingpin.

Hurd was arraigned Thursday night at the Dirksen Federal Courthouse in Chicago and will remain jailed until no earlier than this afternoon, when U.S. District Judge Young D. Kim will preside over a bail hearing. Assuming all goes as planned, Hurd will make bail and soon travel to Texas, where the criminal charges were filed, to face a trial, likely to be scheduled for next year.

If ultimately convicted, Hurd could face between five and 40 years in prison. The wide range in sentencing would allow a judge to consider such factors as sentencing recommendations from prosecutors and probation officers; Hurd's past criminal record, if he has one; whether anyone was hurt because of Hurd's alleged drug dealing; and whether Hurd shows remorse. Per federal truth-in-sentencing policies, Hurd would have to serve at least 85% of a sentence.

Hurd's defense strategy

Representing Hurd is David Kenner, a seasoned criminal defense attorney who has successfully defended purported drug dealers and murderers, along with celebrity defendants, such as musicians Snoop Dogg and the late Tupac Shakur. Hurd's selection of Kenner is telling: while Hurd may "seem" guilty when considering law enforcement's side of the story, we have not yet heard his account, and he has the financial wherewithal to wage a vigorous defense.

Kenner will be sure to examine whether there were any irregularities in how law enforcement pursued Hurd and compiled corroborating evidence and testimony. Kenner also appears likely to assert that if Hurd is really one of Chicago's biggest drug lords, how could he enjoy a successful and very demanding six-year NFL career (most of which was spent with the Dallas Cowboys) without ever being caught or previously implicated? Along those lines, while Hurd isn't an NFL star, he is recognizable in many public settings -- fame and celebrity seem like unlikely characteristics of a drug dealer who presumably wants to avoid public notice.

Also, given that Hurd was set up in a sting operation, expect Kenner to raise the defense of "entrapment," which refers to where law enforcement unfairly encourages a defendant to commit a crime the defendant would not have committed. Entrapment is very difficult to show, however.

Hurd's NFL future

His career as a reserve wide receiver and special teams player is in peril. He was waived on Friday by the Bears, who in July signed him to a three-year contract worth a minimum of $3.97 million, including a $1.35 million signing bonus.

It's unclear whether Chicago will seek repayment of the signing bonus. If it does choose that option, the National Football League Players Association would almost surely object and file a complaint with the league's special master, University of Pennsylvania law professor Stephen Burbank.

The NFLPA would argue, as it successfully did for Plaxico Burress, Michael Vick and several other players whose teams sought to recover signing bonuses after players ran afoul of the law or quit, that signing bonus money is earned upon signing and thus cannot be forfeited.

The NFL, however, would insist that those disputes arose under a CBA that is no longer governing. The new CBA adopts an amendment to the old CBA, dictating that teams and players can contractually agree that the team may recover most of a signing bonus "if a player willfully takes action that has the effect of substantially undermining his ability to fully participate and contribute in . . . the regular season." It is unclear if Hurd's contact contains such language.

Legal and Professional Risks for NFL Players who are allegedly Hurd's Clients

Early reports indicate that Hurd provided, or had in his possession, a list of clients. The list supposedly includes a sizable group of NFL players. Those players will likely be investigated by law enforcement and, upon threat of prosecution, encouraged to cooperate -- that is, implicate Hurd and others connected to the drug ring. Whether or not they cooperate, the players could be subpoenaed to testify against Hurd.

Alternatively, prosecutors could offer Hurd a plea deal. If he accepted a deal, Hurd would agree to plead guilty to a lesser crime or the crime he's facing, with prosecutors agreeing to recommend a relatively light sentence. In exchange, Hurd would be expected to tell law enforcement everything he knows and implicate everyone connected to his drug dealing, including any international contacts. In either scenario, the named players could be at risk of prosecution, subpoena or public naming.

Keep in mind, a player whose name appears on the Hurd's client list has not necessarily committed a crime. While membership on the list suggests that the player intended to buy drugs, it does not prove that point beyond a reasonable doubt. After all, a named player could argue that he was mistakenly included in the list and that it is merely Hurd's word over the player's. The list of names could also be portrayed as potential buyers rather than actual buyers. Corroborating evidence, such as written or electronic records that a player purchased cocaine from Hurd or other alleged sellers, would go a long way in establishing the players are indeed buyers of drugs.

Even if the named players are not charged with crimes or subpoenaed as witnesses, they will still worry about their names surfacing through leaks. If the NFL learns of their names, the players could face scrutiny under the league's substance abuse policy or discipline under the league's personal conduct policy. Commissioner Roger Goodell has sole discretion under the conduct policy to issue sanctions, of his choosing, for conduct he finds damaging to the league's image.

Working in the players' favor is that Goodell has normally waited for a final disposition of a player's legal woes -- be it a conviction or a guilty plea -- before imposing a punishment. Here, the players have not been charged with a crime, let alone found guilty of one. On the other hand, the possibility that Hurd is seller of cocaine to many NFL players poses troubling implications for the league and may require swift justice.

Implications for Goodell and NFL teams

For Goodell, who regards improving the image of players as a central goal of his leadership, the possibility of an elaborate cocaine network among players must be extremely disturbing. That is particularly true if the supposed network went undetected by league and team security officials. Therein lays a troubling question for the commissioner: How could Bears or Cowboys officials have not known about this?

The context of cocaine and its use among NFL players only raises the stakes. Until implementation of tougher drug testing and more effective anti-drug policies in the last two decades, the NFL suffered a long and dubious history with cocaine. In 1982, for instance, former Miami Dolphin Don Reese authored a controversial cover story for Sports Illustrated in which he detailed widespread use of cocaine by NFL players. A year later, a New York Daily News survey of NFL players found that about half of players had tried cocaine, with 20 percent regular users. The league does not want to revisit an era where its players were too often associated with drug dealers and cartels.

For these reasons, the NFL could respond to Hurd controversy by seeking changes in its collectively-bargained drug testing policy, which because of a disagreement between the NFL and NFLPA over procedures for Human Growth Hormone testing, remains a matter in discussion. Every NFL player is tested for cocaine and other "substances of abuse" during the preseason, and can be subject to additional testing in the event of a positive test result. Critics say too many players go untested for substances of abuse during the regular season and the ones who are tested receive too much notice of an upcoming test. More frequent and less predictable testing may uncover better information on players who use cocaine and other illegal drugs.

The league may also encourage teams to engage in more scrutinizing background checks of players before signing them. If Hurd is in fact a major drug dealer in Chicago, the Bears, before handing over a $1.35 million signing bonus, probably should have asked more questions. Teams might learn from the Hurd signing by expending additional resources on due diligence.

Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also serves as NBA TV's On-Air Legal Analyst. Follow him on Twitter.

 
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