LISTEN: Renowned Legal Analyst talks Jake Retzlaff on ESPN 97.7

Attorney and Sports Legal Analyst Alan Fanger talks on The Andy Thompson Show about Jake Retzlaff's sexual assault allegation.

Audio Transcript

Welcome back. Thanks for being with us. This segment brought to you by Flynn Companies. Check out Flynn Companies, proud booster of Southern Utah sports and ESPN 97.7. We've been talking all about the Jake Retzlaff story over the last couple of days, and we are thrilled to have Alan Fanger, attorney at law, with us here from Massachusetts. He has been a

You've probably seen him around on, uh, given sports legal analysis over the years on all the major networks on all the big stories. So we're thrilled to have an expert talk about the Jake Retzlaff story. How's it going, Alan? Hey, Andy, great to be with you.

in rainy Boston where I think it's close to snowing on May 22nd. Oh my gosh. The weather out in Utah is probably far better than it is here. Alan, head on down. Come to southern Utah. We'll golf and we'd love to have you down here in the Beehive State, my friend. Oh, you're killing me.

Let's talk about your first reaction or kind of, uh, you know, to this Jake Retzlaff story that came out yesterday, just kind of looking at it initially over the last day or so. What was your first reaction to the claims? Well, my first reaction, Andy, is I've seen it before. Um, and in fact, uh, there are recent precedents, uh,

where we've seen athletes get ensnared in sexual assault, civil lawsuits, where there hasn't been a corresponding criminal prosecution. The most recent example of that, although it's the allegations were not as, um, will be the Sean Watson case where you had, I mean, not just a large victim, but about 20 plus, but it was never charged in the case, but he did end up getting suspended.

So the question really arises, in my mind, number one, what will BYU do about the situation, if anything? And number two, this is where we're really in uncharted waters because this is really the first time that a potential – that an NIL deal has the potential of being blown up.

because NIL deals typically have morals clauses. So as far as I know, the only NIL deal that Jake Retzlaff have is with Manischewitz, which is a Jewish food company. Jake Retzlaff being Jewish. So the question is, what will Manischewitz do? They've likely never had an athlete do any kind of endorsement slash NIL deal before, so that puts Manischewitz in uncharted waters. So this is really a multi-headed monster that has the potential to unleash itself sooner rather than later.

In your reading of the case, why was there no criminal ? My elementary understanding, Alan, is that she goes and makes an initial report has a rape kit done, has pictures of bruises and cuts and stuff like that. What is required for a criminal arrest to be made in a situation like this? I know initially she didn't name him and that was why they weren't able to go and talk to Jake at the time, but why is there no criminal part to this case and it's only civil at this point?

Yeah, that's a great question. So depending on the jurisdiction, a law enforcement may either allow the victim to determine whether to go forward with a complaint or whether to simply not give much credence to the desire or lack of desire of the victim to go forward and to just initiate a prosecution in which case the victim frequently asserts their Fifth Amendment rights, and then the case sort of goes away. In this case, it looks like the victim initially, she reported this, but then she wouldn't provide a name, and then she comes up with something that strikes me as distinctly non-credible. She says that the police department

It discouraged her from prosecution because it said sexual assault victims never get justice, and yet the Provo PD has a dedicated group of personnel that deals with these kind of cases. So that's a head-scratcher.

So if you're, and yes, and Provo PD came out and said, look, we have a whole crew, this, you know, according to our investigations, this didn't happen, which I know is hard. He said, she said, kind of with that, but I'm wondering if you were,

Let's take it from both sides, Alan. If you were Jake's lawyer, what strategy would you be coming out with for him? He made a statement. This is a famous lawyer. I forget his name. It's like Borgay or something like that, who's been involved in some of these cases in the past. He came out and said, look, Jake's innocent. We're going to prove it. He's focusing on football and all this stuff. A pretty strong statement yesterday. But what else do you think Jake's lawyer is telling him as far as strategy at this point?

I think the strategy involves a sort of exposing what is a half-hearted attempt at having this case prosecuted. So it's almost like she took one step forward and two steps back. And that's what I would be focusing on and arguing that, well, and this could also backfire, but arguing that, well, maybe she understood that it was more consensual than she had you know, perhaps remembered, maybe she was, maybe she was drunk. Maybe there are people who were with her that night and saw that she was, you know, drinking heavily. The friend who accompanied her to Retzlaff's place was probably sympathetic to her. I would, I would imagine. Um, and if, and if you're her, you could take advantage of what's called the fresh complaint rule, which allows evidence, for example, of the alleged victim telling friends contemporaneously that the incident, that it happened. You know, going and having, you know, completing the rape kit. All those contemporaneous actions that are consistent with someone who truly believed that they were the victim of a sexual assault. The fact that this is done within the civil context...It's actually, it's easier for her because she only has to prove by what we call a proportionate evidence. In other words, 50% plus, you know, a scintilla that it happened. Whereas in a criminal prosecution, the government would have to prove each element of the crime beyond a reasonable doubt. And so, sorry, but as a defense attorney for Retzlaff,

I mean, what is your view on these cases? How many of them actually in a civil case will go to trial versus are settled out of court versus, you know, go away? What, what, you know, what are the percentages on that? Yeah. So the percentage of settlement is high. It's probably, you know, depending on the state, it's probably in the 80 to 90% range of whether a case goes to trial or not is subject to a host of variables.

And that would include Jake's mindset, the approach that his handlers take to this, because it's not just his attorney. He's got an agent who's representing him on NIL deals, an agent who's going to be looking out for his graph stock a year from now.

a battery of interviews with teams and apart, separate and apart from the combine. And if teams don't see him as sort of a proverbial upright citizen, his draft stock might fall. My sense of it is that he's not probably not a first round pick, but he's, he's probably a second or third rounder. Um, and, and then there's the, of course the mindset of the victim and you know, how much is she looking for?

What are they, in terms of the jury pool in Provo, what kind of a jury pool would they be looking at? And each of these parties may decide to invest money in focus groups of would-be jurors and see how they would react to a fictional, well not a fictional, but a presentation of the likely evidence. There are a lot of factors working actually in favor of settlement because something like this wouldn't go to trial for 2-3 years. That puts the trial date at maybe near the end of or end of Redflips first season as a pro, maybe into his second season as a pro. I'm not sure that a judge is going to necessarily care whether the trial date occurs sometime during the season or in the offseason.

And to go back to what you said initially Alan, at BYU, a religious institution with a very strict honor code,

My view is, if I'm Retzlaff, I am, and I didn't do it, I'm vehemently going against it, and I don't want to settle, because if I settle, there's an idea that I was in the wrong, and BYU is going to have to deal with the public problem of playing somebody this year who settled out of court with a rape charge. Like, Retzlaff doesn't have a lot of good options here.

Well, the reverse could also be true. And again, when we come back to this issue of first impression for BYU, I was really racking my brain to try to remember whether there's any precedent for a BYU athlete being the subject of something of this magnitude. And I couldn't come up with anything. And yet, given the fantastic season that BYU had, and given BYU's

institutional moral compass which i think indisputably is higher is higher than the cleveland browns right yeah and higher than higher than just about any institution of higher learning that i could imagine sure um so they you know they've got to make a decision here and the question is do they do they accord credence to the victim's allegations and say you know look we're uiu

We just can't tolerate this. And I don't know whether Jerry Bohannon is still competing for a job, whether he could step in, but do they exalt their playoff prospects for 2025 over the moral

supremacy that they claim to have as an institution. If I were the president and the board of trustees and the AD, wow, what a decisional calculus and minefields you have to navigate. Yeah, it's tough. I fall on the end knowing BYU that it's going to be, I think, impossible

to have him play with this hanging over his head because of their honor code and stuff like that. But Alan, let me transition and put you in the shoes of the prosecuting attorney whose firm is out of Salt Lake, and if you're on that end of things,

How do you grade so far what they've done with their claim? And would you have done anything differently? And how would you proceed in the media and overall with the prosecution of this case? Well, I'll tell you one thing I wouldn't have included in the complaint.

was a reference to the Provo PD discouraging her from going forward with the criminal prosecution. Because that just sounds so unlikely and uncredible. Oh, absolutely. It throws a, almost like a thin veil of credibility or lack of credibility around here, which was totally unnecessary. I'm just not sure what,

the what the alleged victim's attorney expected to gain from that. That just seemed to me to be shortsighted. Well, I think I think I think I think he's saying, oh, that the Provo PD is a bunch of BYU fans who don't want to see Jake Retzlaff locked up. So they're going to say, don't prosecute. I think that's that's what he's thinking. And it might have been a bad decision, you know, to do that. But. Oh, I think so, simply because the the benefit

of making that kind of allegation i think it the cost to the potential jury pool which may play a lot that i'm not not a huge fan of the problem will pb but that's not something that i can imagine a police department saying especially in a college town to of someone who claim to be the victim of sexual fault and and i want to be uh... as objective as i can knowing the facts of this case to both sides but i'm wondering...

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