Is free agent wide receiver Antonio Brown building a case for collusion against the NFL and its teams?
This possibility emerged on Thursday when the 31-year-old four-time All-Pro tweeted an obscenity-laden tweet directed at the NFL, whom he accuses of racism:
Brown’s tweet followed a report by ESPN’s Josina Anderson that Brown will meet in person with NFL investigators next Thursday. The timing of Brown’s incendiary tweet seemed illogical: he is about to meet with a league that could effectively end his professional football career. Of all times to attack the NFL and accuse league officials of being racist, the worst time is probably right before a meeting with the league. That’s unless Brown has an ulterior motive (more on that below).
Brown: the All-Pro free agent wide receiver whom no team wants
Brown is not currently subject to any punishment by the league. He has been a free agent since the New England Patriots abruptly released him on Sept. 20.
The Patriots’ release followed a tumultuous and stunning series of events. First, a day after the Patriots signed Brown on Sept. 9, Britney Taylor, who previously trained Brown, sued him in the U.S. District Court for the Southern District of Florida. In a complaint written and signed by her attorneys, Taylor alleged that Brown sexually assaulted her on multiple occasions in 2017 and 2018. A week later, NFL investigators met with Taylor but took no action against Brown.
Last month, Taylor voluntarily dismissed her complaint from federal court. Her attorneys then filed a very similar complaint, though with additional legal claims and reference to more alleged facts, in a Broward County (Florida) circuit court. The case has been assigned to Judge Michael Robinson. Unless Brown and Taylor reach a settlement out-of-court, the case will likely take months—and well past the conclusion of the 2019 NFL season—before a trial would occur.
Taylor’s accusations against Brown are chilling. Among other assertions, Taylor insists that In May 2018 Brown pushed her face onto a mattress in his Miami bedroom and violently raped her while she cried and screamed.
It’s worth noting that Taylor’s claims are not based on any known sworn testimony. Both of her complaints were authored and signed by her attorneys, not her. A plaintiff can elect to file a verified complaint, where the plaintiff swears, under oath and thus at risk of a perjury criminal charge, that the complaint contains truthful information. Taylor did not do so. There is also no known police investigation into her claims, at least none that produced statements to law enforcement. Those points do not mean that Taylor is lying or exaggerating, only that she has not (as far as known) been willing to make her claims while under oath.
Meanwhile, Sports Illustrated’s Robert Klemko uncovered allegations by other women against Brown. His reporting also found that Brown allegedly sent hostile and inflammatory texts to one of his accusers. While the Patriots kept Brown despite Taylor’s lawsuit, they clearly ran out of patience as the number of accusers rose. The Patriots released him merely 11 days after they had signed him.
While several teams, including the Seattle Seahawks, have reportedly explored the possibility of signing Brown, the former Pittsburgh Steelers star remains a free agent.
The NFL could punish Brown on multiple grounds
The collective bargaining agreement between the NFL and the NFLPA supplies commissioner Roger Goodell with considerable discretion in deciding whether and how to punish a player for off-field misconduct. This is relevant as to how the league will handle the Brown situation following next week’s meeting.
As a starting point, Goodell can elect to place a player on the exempt list, where the player continues to be paid but is ineligible for games. Placement on the exempt list is appropriate when a league investigation leads Goodell to conclude that a player “may have” engaged in a crime of violence. A crime of violence is defined broadly to include physical and sexual assaults and also threats of violence, including threats that remained words and did not become actions.
The standard for placement on the exempt list does not require a criminal charge, police investigation or anything specific. Just as important, Goodell doesn’t have to be certain. He only needs to believe that the player “may have,” committed a prohibited act. The only procedural requirement imposed on the NFL is that the league conduct an investigation, but even that requirement is minimal: there is no constraint as to the thoroughness of an investigation.
Goodell will review Brown’s responses to questions in his interview with league investigators. Goodell would also consider any mitigating evidence that Brown shares. The commissioner could nonetheless decide to exempt Brown based on allegations by Taylor, assuming the league found her credible, or on Brown allegedly sending intimidating texts, including a photo of a woman’s children. Goodell could also wait to exempt Brown until after he signs with an NFL team, assuming that eventually happens. Either way, Brown would remain on the exempt list until the NFL decides it has enough information to suspend or not suspend Brown.
With that in mind, Goodell could bypass the exempt list and simply suspend Brown without pay. The suspension would go into effect if Brown signs with a team.
The league’s domestic violence policy, as governed by Article 46 of the CBA, indicates a baseline suspension of six games for a first-time offense. Article 46 requires that the league give the player an opportunity to rebut the allegations. Brown will have that opportunity next Thursday, assuming the meeting actually happens.
Goodell needn’t rely on a criminal charge, let alone a conviction, to suspend a player. The key is whether Goodell—not a judge, not a jury, not anyone but Goodell—believes that a player is at fault. Goodell has previously suspended Steelers quarterback Ben Roethlisberger, Dallas Cowboys running back Ezekiel Elliott and Seattle Seahawks defensive lineman Jarran Reed for domestic violence despite the fact that none was charged with a crime.
Alternatively, Goodell could suspend Brown on account of his disparaging public statements about the league, Patriots owner Robert Kraft and fellow NFL players.
Brown, as noted above, called the NFL racist while using the “f” word in a tweet on Thursday. He also requests a remedy from the league that it can’t provide: the clearing of his name. The league can’t clear Brown’s name since he remains a defendant in a sexual assault civil lawsuit that, absent a settlement, will take months to litigate. Brown is accused of other wrongdoing, too. It’s possible that his name will never be fully cleared and, regardless, the NFL doesn’t have the capacity to completely restore Brown’s image.
Brown has also used Twitter to: mock Kraft about his solicitation charge in Florida (that case will likely end in Kraft prevailing); belittle Pittsburgh Steelers quarterback Ben Roethlisberger about an investigation from 10 years ago into whether he committed sexual assault (he was not charged and settled civil claims out of court); and ridicule other persons connected to the league. While Goodell has not punished players for words—even threatening words such as Kansas City Chiefs Tyreek Hill chillingly warning to his then-fiancée, Crystal Espinal, “you need to be afraid of me too, b---h”—he could elect to do so under the league’s personal conduct policy. That policy empowers Goodell to punish for “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” Brown, Goodell might conclude, has used social media to harm the league’s brand.
Before you argue that Brown has a First Amendment right to free speech, bear in mind that right protects Brown (and other citizens) only from the government. It does not insulate an employee, particularly one who works for a private business, from the employer punishing or firing an employee over inflammatory speech.
Trying to make sense of Brown’s strategy
As mentioned above, Brown’s Twitter rant on Thursday could not be timed worse in terms of trying to convince the NFL, and particularly Goodell, to believe him when he says that he’s done no wrong.
So why would he do it?
One possibility is that Brown has already concluded that the league and its teams intend to banish him, perhaps permanently, and that the meeting next week will be a waste of time. He might likewise regard his collectively bargained right to appeal any placement on the exempt list or the suspended list as a fool’s errand: an appeal would go back to Goodell or someone of Goodell’s choosing.
Brown would not be the first player to raise an argument along those lines. From 2017 to 2019, Colin Kaepernick and Eric Reid maintained that they were victims of collusion. They insisted that teams had agreed to boycott them due to their protests during the national anthem and the surrounding controversy. Their grievance was resolved in a financial settlement announced in February. Kaepernick, who is now 32 years old, last threw an NFL pass nearly three years ago. As more time passes, the odds of the one-time San Francisco 49ers star returning to the NFL only drop. Reid, 27, plays safety for the Carolina Panthers.
If Brown elected to pursue a collusion “case” against the NFL, it would come in the form of a grievance, rather than a lawsuit. The grievance would be heard before a neutral arbitrator and likely take more than a year to resolve.
Under Article 17 of the CBA, Brown would need to establish by a clear preponderance of the evidence that collusion occurred and that such collusion caused him economic harm. Collusion has a technical meaning: two or more teams, or the league and at least one team, conspired to deprive Brown of his collectively bargained right to sign with a team.
In other words, Brown’s potential argument that teams didn’t sign him because of unestablished sexual assault accusations wouldn’t be proof of collusion. Brown would need evidence that either league officials and the officials of at least one team, or officials from multiple teams, talked, texted, emailed or direct messaged one another about Brown, and in doing so agreed to keep him out of the league.
If Brown could prove that collusion occurred, he would be awarded both compensatory damages and non-compensatory (punitive) damages. Compensatory damages would reflect the amount of money Brown would have earned but for collusion, while non-compensatory would equal twice the amount of compensatory damages. To illustrate, if Brown could prove that he would have signed for $9 million with a team following his release by the Patriots, he would be awarded $27 million ($9 million + ($9 million x 2) = $27 million). Damages in that scenario would be influenced by a number of factors, including whether Brown prevails in salary grievances against the Oakland Raiders and Patriots and whether there would be salary offsets based on Brown’s contracts with those franchises.
The notion that Brown might be a victim of collusion would strike many as far-fetched. While he remains one of the best wide receivers in football, any team could logically decide it doesn’t want him.
Not only is Brown accused of violent and threatening acts against multiple women, but his social media presence and disruptive in-person behavior are also repelling. This is a player who recorded a private phone conversation with Oakland Raiders head coach Jon Gruden and then posted it on YouTube. Brown missed practices and had a confrontation with Raiders general manager Mike Mayock. He also waged two grievances over whether he could wear a helmet that his union agreed he could not wear and suffered frostbite after neglecting to wear the right footwear during cryotherapy. Even after gaining a coveted chance to play with Tom Brady and for Bill Belichick, Brown couldn’t resist hostile uses of social media. That’s a long list of warning signs for any team that might consider Brown, and it merely covers a couple of months. As great a player as Brown is, teams have only so much tolerance for drama and chaos.
Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.