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How Antonio Brown’s Likely Labor Grievance Against the Patriots Will Play Out

Michael McCann

You can add labor grievance to Antonio Brown’s already tumultuous 2019 season. ESPN’s Chris Mortensen reported that the All-Pro wide receiver intends to file a grievance on Monday against his most recent employer, the New England Patriots. Brown, with assistance from the NFLPA, will demand that the Patriots—who cut Brown on Friday in the wake of a multifaceted controversy that included inappropriate text messages—pay him the remainder of his 2019 contract.

Brown’s contract with the Patriots contained a $1 million base salary, along with a $9 million signing bonus. His contract also included various roster bonuses and performance incentives. Five million of the $9 million signing bonus is due to be paid on Monday, Sept. 23. If the Patriots refuse to pay the $5 million, Brown would have actionable grounds to grieve an alleged breach of contract.

Brown, who was employed by the Patriots for only 11 days, earned two weeks of the base salary, which amounts to $125,000. As reported by Pro Football Talk’s Mike Florio, Brown also earned a $33,333 roster bonus by virtue of being on the Patriots roster during Week 2 (when Brown caught four catches in the Patriots’ 43–0 win over the Miami Dolphins). In addition, as Florio details, Brown should gain from the termination pay clause in Article 30 of the collective bargaining agreement. It instructs that a terminated player is owed a quarter of the remaining balance of his base pay. This should lead to another $125,000 payment to Brown, for a total of $283,333 ($125,000 in pay earned + $33,333 roster bonus + $125,000 termination pay). The Patriots probably wouldn’t be too upset to only pay $283,333 of a contract that could have been worth as much as $15 million.

Brown, for his part, might not have another opportunity land such a lucrative contract. He’s now been cut by two teams in two weeks—first by the Oakland Raiders before the Patriots. Brown is also the subject of a league investigation into accusations of sexual assault and misconduct. Also, at age 31, Brown’s window for peak performance in the NFL might not last much longer.

The NFLPA is also a relevant party. While the union might question Brown’s judgment, it’s legally obligated to represent Brown, just like other union members. The NFLPA must also worry about the precedent of a team being able to deny guaranteed payments to a player who hasn’t been charged with a crime, who hasn’t been suspended or exempted by the league and who wasn’t first fined or suspended by the team.

As detailed below, Brown and the NFLPA will contend that the Patriots must pay the signing bonus in accordance with key language in the CBA. To rebut, the Patriots will insist they are relieved of the obligation to pay. They will stress Brown’s personal actual and possible misconduct as well as provisions in his player contract.

The unsettled interplay between the CBA and Brown’s Contract

The dispute between Brown and the Patriots will involve language from both the CBA and his contract. Some of the language could be read to be in conflict or will require further interpretation and clarification.

A sensible starting point in this discussion is Article 4 of the CBA. Among other things, Article 4 contemplates circumstances in which a player’s salary is subject to forfeiture at the team’s discretion. Article 4, however, cautions that salary “already earned may never be forfeited.” A signing bonus, such as the one Brown received in his contract, is arguably earned when signed (hence its moniker, “signing bonus”).

Article 4 stresses that a player can commit a “forfeitable breach” in four specific circumstances: when a player fails to play or practice (not applicable to Brown with respect to his 11 days on the Patriots); is incarcerated (not applicable to Brown at any time); voluntarily retires (not applicable to Brown while he was a Patriot, though he now says he’s boycotting the NFL until NFL players receive guaranteed contracts); or is unavailable due to a non-football injury that resulted from a breach in the contract (seemingly not applicable to Brown—the Patriots neither listed Brown as injured nor suggested he was hurt).

The Patriots will highlight other language, namely that found in Brown’s employment contract. Appendix A of the CBA contains the standard “NFL Player Contract.” Brown’s contract contains additional information, but as a starting point, Paragraph 2 of the standard contract highlights that a player is contractually obligated to “give his best efforts and loyalty to the club.” The player is also required to “conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game.” Meanwhile, paragraph 14 requires that Brown comply with “all reasonable club rules and regulations.”

These ambiguous terms advantage the Patriots, since they could be applied to Brown’s employment with the Patriots. The most relevant element of Brown’s time on the Patriots was his texting inappropriate, some would argue hostile or threatening, comments to an artist who accuses him of sexually inappropriate conduct.

There are also specific terms in Brown’s contract with the Patriots that offer the team interpretative power. As The MMQB’s Albert Breer has shown, Brown’s salary guarantee is contingent upon Brown avoiding certain acts. Brown, for example, was forbidden from skipping practice without prior consent. He also was prohibited from being suspended under the league’s conduct policy. Brown’s guarantee was also subject to forfeiture if he took “any action that materially undermines the public’s respect for” the Patriots. In any of those scenarios, the Patriots were empowered to render guarantees “null and void.” Brown didn’t miss practice and he wasn’t suspended. However, the vagueness of the standard “materially undermines the public’s respect” is beneficial to the Patriots.

ESPN’s Adam Schefter has noted other relevant language in Brown’s contract. One key passage is a so-called "representation and warranty" clause. It requires that Brown refrain from any conduct that is “illegal, unlawful or immoral.” It also instructs that there are “no circumstances exist that would prevent player's continuing availability to the club for the duration of the contract." It’s unclear if Brown engaged in “illegal” or “unlawful” conduct. No court has made such a finding and none will anytime soon, if ever. Whether the conduct is “immoral” is much more debatable. A finding of “immoral” conduct doesn’t require action by a judge or jury, but it’s also speculative grounds to withhold money.

The arbitrator for Brown’s grievance will be neutral. Article 43 of the CBA contemplates non-injury contract disputes. A grievance would take weeks and possibly months, and could require depositions of Brown and Bill Belichick, among many others.

Brown’s likely arguments in the grievance

Brown (and the NFLPA) will surely insist that his signing bonus was earned when he signed his contract. He’ll also stress that he did not commit a “forfeitable breach” as that term is defined by Article 4 of the CBA. Further, Article 4 could be read to supersede or qualify his Patriots contract with respect to guaranteed money. It states that players and a team can’t agree “to contract provisions that authorize the club to obtain a forfeiture of any salary from a player except to the extent and in the circumstances provided [in Article 4].”

Brown can also highlight that the Patriots did not, based on what is publicly known, discipline him before the team cut him. In labor law, there is normally an expectation of a progressive discipline policy, meaning a policy where (in general) an employee who runs afoul of a workplace rule is first warned and second suspended/fined before he or she is fired. The underlying logic is that an employee should have a chance a to correct mistakes and learn from them before losing their job. Here, there was no suspension and there is no record that the team fined Brown for any conduct. Brown might query that if New England viewed his behavior as so detrimental to the organization, why was Brown still practicing for the Patriots the day Robert Klemko’s story about Brown’s intimidating text messages had been published? And why was Brown still practicing on a Friday before a Sunday game? It seems the team expected him to play in spite of the controversies.

Along those lines, the Patriots have not explained their reasoning behind cutting Brown. He has not been charged with a crime and there is no expectation of forthcoming criminal charges. It’s true that Brown’s former trainer, Britney Taylor, has sued him for an alleged sexual assault and other sexually inappropriate behavior. However, those alleged acts occurred before Brown played for the Patriots.

Also, the filing of a civil lawsuit doesn’t prove anything. Taylor hasn’t (from what is known) offered sworn testimony, and therefore hasn’t vouched for her claims under the penalty of perjury. Further, she declined to report her claims to the police, meaning no police investigation occurred when one would have been most helpful. While Taylor met with NFL investigators last Monday, a meeting doesn’t equate to proof. Brown might also note that Roger Goodell declined to place Brown on the exempt list after league investigators met with Taylor. It appears Brown would have played for the Patriots against the Jets on Sunday had he not been cut.

For similar reasons, it’s unclear that the Patriots would be able to deny Brown guaranteed money solely in response to Klemko’s findings. Through a combination of investigative journalism and careful scrutiny of police reports, court filings and other records, Klemko uncovered that a second women accused Brown of an inappropriate sexual overture and a third claimed he threw a bottle of cologne at her. Brown has also been accused of various other transgressions, including not paying people he hires and throwing furniture from the 14th-floor apartment balcony onto the street (which was reported last year).

While those findings are disturbing, none led to criminal charges. Also, it appears that Brown and his attorneys reached settlements before many of those incidents led to litigation. Regardless, it’s obvious why the Patriots would abruptly cut him for Brown’s past issues that had a limited legal fallout.

To that point, the NFLPA could argue that there is an element of “caveat emptor” in signing any player, but especially one as controversial as Brown. When they signed Brown on Sept. 10, the Patriots, like the rest of the NFL, had just seen him undertake a series of disruptive and dramatic acts as a Raider. That pattern seemed to begin with an unusual incident where Brown suffered frostbite after failing to wear proper footwear in a cryotherapy chamber. Brown then pursued two grievances over whether he could wear a helmet that the NFL and NFLPA had deemed unsafe. Then he battled with Raiders general manager Mike Maycock via an on-field exchange and when Brown posted a photo of his fine on Instagram. Brown also recorded a phone call from Raiders head coach Jon Gruden and then published the recording on YouTube. Along the way, Brown racked up multiple fines for missing practices and meetings.

New England saw all of this and still signed him.

The timing of the Patriots signing Brown is also relevant to the grievance. They rushed to sign him on Sept. 10 after his release by the Raiders. The rush made football sense: the team wanted to sign him before another team did so. However, it’s not clear whether the team engaged in the kind of thorough background checking and due diligence that it might normally conduct before offering a contract to a player.

Had the Patriots canvassed social media, they might have noticed a Sept. 7 tweet by @incarceratedbob. The tweet suggested that Brown was in in the middle of a possible legal dispute with a woman. The tweet contains a video that appears to show messages attributed to Brown. If the Patriots saw the tweet, they might have asked Brown’s agent, Drew Rosenhaus, about its merits and inquired whether Brown intended to reach an out-of-court settlement with the accuser before the Patriots signed him.

Patriots’ likely arguments in the grievance

The Patriots, as noted above, will stress that Brown’s contract clearly gave the team the ability to terminate guaranteed provisions (at least some of those provisions) in the event Brown engaged in conduct that undermined the public’s respect for the Patriots or those on the Patriots. Likewise, Brown may have engaged in unlawful or immoral conduct, either of which would have violated his contract. To that point, the chaos caused by Brown was a distraction to the Patriots. It also became fodder for media and social media ridicule of both Brown and the team.

The specifics of Brown’s conduct while on the Patriots also warrant attention. Brown texting hostile statements, as well as a photo of a woman’s children, to a woman who accuses of him of misconduct is, at a minimum, indicative of dubious judgment and a lack of self-control. This seems particularly true given that Brown texted her while Brown was under league investigation for allegations brought by a different woman. The timing could not have been worse and it embarrassed the Patriots.

It’s also possible, if not likely, that Belichick warned Brown to refrain from conduct detrimental. Perhaps Belichick or other Patriots officials told Brown to put his phone away if he wanted to be on the team. Brown likely knew he had to change his behavior to comport to this team, and if Brown didn’t “get the message” and betrayed a warning, New England can more persuasively argue they cut him for conduct detrimental.

The Patriots can also contend that Brown’s signing bonus was structured to incentivize his good behavior over a period of weeks or months. This incentive scheme was apparent in the timing of the payments: Brown would earn $5 million within a couple of weeks if he got off to a good start with the team and another $4 million at a later date. From that lens, the bonus wasn’t “earned” at signing but rather earned over a period of time.

The Patriots can also attempt to debunk a progressive discipline argument by emphasizing that the team has discretion when to cut a player. The Patriots aren’t obligated to first suspend Brown before it can release him.

Still, Brown’s best card is the CBA and the collectively bargained limitations on forfeitable breaches of guaranteed money.

The grievance will take time to play out. Although the matter could be resolved through a settlement, Brown’s ill-advised decision to mock Patriots owner Robert Kraft on Twitter on Sunday doesn’t exactly serve as an olive branch for settlement talks. In fact, ESPN’s Adam Schefter reports from a source that Kraft will “never” write a check to Brown after Brown’s tweets.

Kraft might not have a choice. We’ll see.

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.

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