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Would Ryan Lochte face jail time if it turns out he’s lying? Probably not

Ryan Lochte
Matt Hazlett | Getty Images
Ryan Lochte

Brazilian police are now saying that Ryan Lochte and the other American Olympic swimmers who claim they were robbed at gunpoint Sunday night are lying about the incident.

The case is still being investigated but what if Lochte did lie? What consequences could he face?

Filing a false police report is a misdemeanor punishable under Brazilian law by up to six months in prison. Criminal prosecution of Lochte is inconceivable. Why? Lochte is now home and would have to be extradited, meaning Brazilian authorities would have to get American authorities to send Lochte back to Rio. Misdemeanor filing of a false report is not an offense, under the applicable treaty between Brazil and the United States, that is subject to extradition. (Extradition would be applied only in more serious offenses such as murder and rape.)

The three other swimmers who remain in Brazil are not so lucky. These men could face the Brazilian criminal justice system. But aren't Olympic athletes ambassadors of their country, you might ask? What about diplomatic immunity? Olympic athletes are recognized as "ambassadors" only in the figurative sense, not as a matter of international law.

It is nonetheless hard to see these swimmers really facing criminal charges. Brazil probably wouldn't want to make an international incident of this. That would only prolong this story. Those stories would also inevitably mention the ongoing issues of public corruption and violence that have plagued Brazil that made Lochte's story initially seem so plausible.

The unlikelihood of legal action against Lochte doesn't mean that he would face no consequences at all if his story turns out to have been wholly fabricated.

As amateurs, Olympic swimmers make their money from endorsing products and services that rely on the athlete's reputation to sell products. Michael Phelps is golden, notwithstanding his own occasional scrapes. Endorsements depend on the credibility of the endorser. An unrepentant liar is not going to be attractive in that role.

But therein is the key to Lochte's redemption. The public will recognize that lying about breaking down a bathroom door at a gas station is not the same as lying about athletic integrity or about domestic abuse. Felony-level stupid, yes. Felony-level crime, no. So if Lochte acknowledges he was at least misleading about what happened on Sunday night and explains why he said what he did about it, the damage to his financial prospects will be limited. Not eliminated, but limited. And such a confession of sorts will clear Brazil from a mark that otherwise would have been left on a pretty successful Olympic games. Both sides are satisfied.

Maybe Lochte told the truth. Maybe there is evidence unknown at this time which will leave his reputation enhanced rather than compromised. Based on what is known now, that appears almost as unlikely as criminal charges emerging from this mess.

No matter how this turns out, it is seems this incident and its aftermath will tail Lochte at least for the next few years and maybe for the rest of his life. It certainly will be brought up whenever his credibility matters in evaluating what he says or does, no matter how many medals he adds to the 12 he already has won. The Olympics, like sports generally, ultimately is about honor. What a shame.

Commentary by Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek, where his practice focuses on defending and advising employers. He also is a professor at the San Diego State University College of Business Administration where he teaches classes in business ethics and employment law. Follow him on Twitter @DanEatonlaw.

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