Taking an offensive stance, former 49ers defensive lineman Ray McDonald filed a lawsuit on Monday, saying that he’s been unfairly caught up in a national firestorm about the NFL and domestic violence that simply isn’t true.
“She is wrong,” Ray McDonald’s mother, LaBrina McDonald, said by phone Monday. “He’s been victimized. She has lied on him. This is bigger than football. This is his freedom.”
McDonald’s attorneys, Steve DeFilippis and Stephen Picone of San Jose, argue in court papers filed in Santa Clara County Superior Court that McDonald and a woman he met at the Willow Den bar had consensual sex “several times” both during the December night in question, and the day afterward.
That story contradicts a police narrative from the woman’s point of view where she stated she had been drinking and injured her head after a fall by the pool and couldn’t remember having sex with McDonald on Dec. 14.
A police officer wrote in a search warrant affadavit that there was probable cause to arrest McDonald for “rape by intoxication.” The suit names the woman, but NBC Bay Area is not because it has not been made clear whether she was indeed a victim of sexual abuse or not.
McDonald has not yet been charged with any crime, though his NFL agent has reportedly sent a note throughout the league that the 30-year-old will not face any criminal penalties. The Santa Clara County District Attorney has not made any decision public yet.
49er General Manager Trent Baalke released McDonald three months ago for “poor decision making” and so far, he has not been hired by any other team. Though his house went up for sale for $2.9 million in San Jose, his mother said he has not sold it.
The lawsuit claims defamation and libel, as the lawyers allege the woman, whom McDonald hadn’t met until that night, marred his good name and cast him in a "false light." The suit also alleges intentional interference with prospective economic relations and asks for "general damages" and loss of earnings in addition to punitive damages.
“What it essentially amounts to is false statements were made about Mr. McDonald,” DeFilippis said on Monday, which caused him to be cast in a “false light ... that essentially is hurting his reputation and and ability to play football.”
DeFilippis added that because there has been no formal action, “in the eyes of NFL teams, the unresolved threat of charges being filed against him, even though factually unfounded, continues to present a roadblock to this remarkable athlete being able to move forward in his career."
McDonald should not be penalized, his lawyers argue, because the woman was "flirtatious" and "fully cognizant" about what was going on. When she called McDonald the next day, the suit alleges, "at no time did she accuse him of "any impropriety or appear to be upset or scared." Some of the sexual acts were recorded on McDonald's home security cameras.
The lawsuit also highlights the national conversation regarding the NFL’s stance regarding domestic violence, specifically noting Ray Rice, who as a Baltimore Raven was caught on video punching his fiancé in an elevator and Adrian Peterson of the Minnesota Vikings for hitting his son. And the suit alleges that McDonald was unfairly caught up in this web, when he “had done nothing wrong.”
in August, McDonald was also arrested and accused of domestic violence against his then pregnant girlfriend. But prosecutors did not charge him then, citing insufficient evidence.
Legal analyst Steven Clark told NBC Bay Area that McDonald’s legal team has an uphill battle to climb, and he doubted if the case would ever see a trial. That’s because police reports are privileged, or protected, material, which means that information cannot constitute libel, he said.
“You can’t sue for reporting crimes to police,” he said.
Also, by McDonald suing, Clark said, the football player is opening himself up to being questioned and investigated himself. But that doesn't seem to be the main issue, Clark said.
“I think what he wants is a finding that he's not guilty of raping anybody,” Clark said. “That makes him more marketable to the NFL. That's probably the point of it."
NBC Bay Area's Stephanie Chuang contributed to this report.