New England Patriots fans should take advantage of the opportunity to watch Antonio Brown in his Patriots debut during Sunday’s game against the Miami Dolphins.
It might be several weeks before they get to watch the All-Pro wide receiver play again.
NFL Network’s Ian Rapoport reports on Sunday that Britney Taylor, the former trainer to Brown who has sued him for sexual battery, will meet with league investigators on Monday. The meeting between Brown’s accuser and the league is an important procedural step. It signifies that the NFL’s investigation will engage in a level of fact-finding sufficient to take disciplinary action.
If league investigators find Taylor to be credible and if her depiction of events seems persuasive, commissioner Roger Goodell would be more likely to place Brown on the exempt list. Should Goodell decide to exempt Brown, the decision could occur before the Patriots host the New York Jets on Sunday, Sept. 22 at 1 p.m. Brown could then remain on the exempt list for several weeks while the league further investigates.
While on the exempt list, Brown would continue to be paid his salary and he could work out individually at Gillette Stadium. However, he would be ineligible to play in Patriots games or participate in team practices. The list is not a “suspension” since the player is paid, though it would still prove costly for Brown: he would be denied an opportunity to help his new team, to gain a rapport with quarterback Tom Brady and to accumulate statistics that could eventually trigger lucrative incentives in his contract (he would reportedly earn $1.5 million bonuses if he 105 catches, 1,298 yards or 16 touchdowns this season).
Impact of Taylor’s willingness to speak with NFL on whether Brown is put on the exempt list
Goodell has massive discretion in the decision to place a player on the exempt list. He can do so when a league investigation leads him to conclude that a player “may have” engaged in a crime of violence. There is no minimal level of investigation that needs to be conducted for it to count as an “investigation”; a meeting between the accuser and league investigators can be enough. Likewise, Goodell doesn’t need to firmly believe that Brown engaged in the acts detailed in Taylor’s complaint. He only needs find to reason that Brown “may have”—not “must have” or even “likely has”—engaged in those acts. This is a very low bar.
Before deciding on whether to exempt Brown, Goodell could, but not must, invite Brown to meet with league investigators or to provide a rebuttal in writing. Goodell could also rely on expert opinions from professionals with expertise in law enforcement, health and related fields in reaching a decision.
Expect Brown’s representatives to aggressively attempt to discredit Taylor’s claims. First, they’ll insist that she wants to speak with the league for strategic purposes—namely, to obtain more leverage in settlement talks with Brown.
Second, they’ll highlight how her claims arise in a civil complaint, not in a criminal charge. This is an extremely important distinction under the law. Lawsuits filed in court are authored by attorneys for a plaintiff, not by the plaintiff herself or himself. To succeed, a complaint must only convince a court that there is a preponderance of the evidence (a.k.a. “more likely than not”) in the plaintiff’s favor. This burden is far lower than the burden of “beyond a reasonable doubt” under criminal law.
Complaints are not required to be based on sworn testimony, where a person who knowingly lies under oath can be charged with the crime of perjury. In this case, there is no indication that Taylor has provided sworn testimony. Along those lines, Brown’s representatives are poised to stress that Taylor’s discussions with league investigators are merely private discussions where, like in the civil complaint authored by her attorneys, she would not be required to tell the truth.
Third, Brown’s representatives will draw attention to the absence of relevant police reports and hospital records. Based on Taylor’s complaint, it does not appear that she notified law enforcement in Pittsburgh or Miami, the two cities where she claims that Brown sexually battered her in 2017 and 2018, or that she sought hospitalization. The NFL thus can’t utilize police narratives that would have provided a contemporaneous—and objective—assessment of facts. All we know is that Taylor insists that Brown committed sexual battery and that Brown, through his representatives, flatly denies it. He instead depicts Taylor as vengeful over his unwillingness to invest money in her business and as now lying in order to exact revenge. The NFL has little to go by in the way of neutral analysis of two very different depictions of what took place.
Unless there are other records, such as emails and texts, that prove or refute whether Brown acted unlawfully, the league may be left with an unappealing choice to believe Brown or Taylor based solely on their interactions with Goodell and/or league investigators. Taylor’s complaint does contain what her attorney claims are text messages sent by Brown to Taylor. Although Brown seems incensed and vulgar and although he references sexual activity between himself and Taylor, the texts do not contain an admission that he committed sexual acts on Taylor without her consent. Also, the screenshots appear to contain excerpts of longer conversations. League officials would want to see the whole exchange.
The NFL will also demand more information from Taylor about an unnamed “football player” who her complaint asserts was staying with Brown in Miami when the alleged raped occurred. If this player is currently employed by an NFL team, the league would have the ability to require that he cooperate in an investigation.
If Goodell places Brown on the exempt list, Brown and the NFLPA could file a grievance under Article 46 of the CBA. However, Goodell—who would have decided to place Brown on the exempt list—would be the arbitrator or he would pick select someone to serve in that capacity. An appeal would likely fail. So too would an attempt by Brown to petition a federal court to review Goodell’s denial of an appeal. As case after case shows, courts find that Article 46 is worded in a way to give Goodell final say on player conduct matters—even in instances where his fact-finding seems questionable (Brown could chat with his quarterback about that).
Goodell could also suspend Brown, but don’t expect that to happen immediately
Goodell preserves the right to suspend Brown, without pay, should he decide that Brown violated Article 46. The domestic violence policy, which is a league interpretation of Article 46, calls for a baseline suspension of six games. However, any decision by Goodell to suspend Brown would necessitate other procedural steps that would likely take weeks to play out.
Most significantly, the NFL would have to give Brown an opportunity to rebut Taylor’s claims before suspending him. Brown would also be provided a chance to submit information in writing and to meet in person with league investigators. To that point, the league would need to supply Brown with records that it used to reach its decision. Those records, to the extent they contain transcripts or summaries of interactions between Taylor and league officials, might be helpful in his legal defense against Brown’s complaint. They would shed light on her and her attorneys’ style of reasoning when attempting to accuse Brown.
Goodell is unpredictable
It’s difficult to predict what Goodell will do with Brown. On multiple occasions, Goodell has punished players who were not charged with domestic violence crimes, let alone convicted of them. Pittsburgh Steelers quarterback Ben Roethlisberger, Dallas Cowboys running back Ezekiel Elliott and Seattle Seahawks defensive lineman Jarran Reed were all initially suspended six games for alleged domestic violence acts despite not being charged with crimes.
At the same time, Goodell hasn’t found threatening language against a significant other to warrant a suspension. This was highlighted by Goodell’s recent decision to not suspend Kansas City Chiefs wide receiver Tyreek Hill in spite of Hill telling his then-fiancée, Crystal Espinal, “you need to be afraid of me too, b----.” The remark was particularly troubling given that Hill pleaded guilty in 2015 to domestic assault and battery charges for violently attacking Espinal while she was eight weeks pregnant. Hill was a college student at the time.
Meanwhile, despite there being a “baseline” six-game suspension for sexual misconduct, Goodell has sometimes imposed lighter punishments. For instance, in 2018, Goodell suspended Tampa Bay Buccaneers quarterback Jameis Winston three games after Winston had been sued for (allegedly) sexually assaulting an Uber driver.
At the end of the day, if Goodell believes Taylor more than he believes Brown, expect Brown to miss games, either while on the exempt list or (eventually) while on a suspension, or both. However, the lack of sworn statements by Taylor and the absence of police records could lead Goodell to a place where’s simply not sure what happened. If so, he would be reluctant to punish Brown.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.