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Did Antonio Brown Play One Hand Too Many?

Antonio Brown - The GamblerSeptember 25, 2019
Sheilla Dingus

“You’ve got to know when to hold ’em, know when to fold ’em
Know when to walk away, and know when to run.
You never count your money when you’re sittin’ at the table.
There’ll be time enough for countin’ when the dealin’s done.”

The iconic song seems to comport with Antonio Brown’s situation.  In what realistically was only a couple of weeks ago but now seems like eons, I wrote about how Brown had played his cards perfectly in landing with what is presumed his preferred destination with the New England Patriots and securing a high-dollar contract, following his controversial departures from the Pittsburgh Steelers and Oakland Raiders.  He even picked up a new helmet endorsement deal after filing two grievances challenging the requirement to wear only new league-approved helmets.

“Every gambler knows that the secret to survivin’
is knowin’ what to throw away and knowin’ what to keep…”

Apparently after scoring a royal flush with the Patriots, Brown again found himself with what he considered a bad hand after Sports Illustrated’s Robert Klemko wrote an investigative article on September 17, “There’s More History to Antonio Brown’s History,” detailing several controversies surrounding Brown, including allegations of sexual misconduct by an artist Brown had commissioned to paint a mural at his home.

Brown appears to have made two serious mistakes that may have now cost him his career.  The first would be “counting his money while sittin’ at the table.”  Brown debuted for the Patriots on September 15 in their matchup against the Miami Dolphins.  In the game, he led the team with four catches for 56 yards and scored the first touchdown for the Patriots in what would turn out to be a blow-out 43-0 victory.  Apparently, he felt secure and considered the Patriots gig to be money in the bank.  But after the SI article brought new accusations against him, instead of keeping a cool head, Brown played the wrong card by texting the artist in what she felt was an intimidating way, and this turned out to be a fatal error for Brown.

On September 19, Klemko published another article reporting the texts Brown sent to the artist, after which murmurs surfaced that Robert Kraft was “enraged.”  In his article for The Athletic, Jeff Howe wrote:

Brown continued to practice this week despite the allegations in the initial Sports Illustrated story. And Thursday, the day after he reportedly texted the painter, Brown was asked if he had heard from the NFL about his availability to play Sunday against the Jets. Brown replied, “I’m just here to focus on ball.”

It then seemed Belichick, albeit slightly, changed his tune Friday when asked about the publicized text messages. Referring to Brown, Belichick said, “There are some things that we’re looking into.”

That appeared to acknowledge the change in the way the Patriots were checking into Brown’s history, from deferring to the NFL’s investigation on his second day of employment to including their own research and determinations on his last day.

Brown was released later that afternoon and immediately reacted with a series of tweets thanking the Patriots.

Apparently, the gravity of the situation hadn’t set in as he tweeted this immediately after he received the fateful phone call.  His tweet preceded any reports by media but those followed in rapid succession shortly thereafter some of which indicated that the Patriots planned to void Brown’s $9 million signing bonus.  It appears likely that when Brown tweeted his thanks he wasn’t aware of this and presumed he’d still collect his payday and be snatched up by another team.

On Friday evening, the NFL essentially blackballed Brown as indicated in the league statement tweeted by Brian McCarthy.

A similar statement was issued following Aaron Hernandez’s arrest for murder and subsequent release from the Patriots, and while not forbidding teams from hiring either man, made it very unattractive for them to do so.

On Sunday Brown tweeted his apparent retirement from the NFL.

Brown retirement tweet1

This was followed by a series of now deleted tweets in which he pointed to a double standard in the league, beginning with the allegations against Robert Kraft and how he escaped punishment but then fired Brown.

Brown also pointed to allegations against his former quarterback Ben Roethlisberger and Shannon Sharpe pointing to how they kept their jobs.

Brown retirement tweets2

While it’s pretty much indisputable that Antonio Brown has made some questionable decisions, the perception of unevenness in the league makes a valid point.  A Washington Post article by Kevin Blackstone, while acknowledging that Brown is “guilty of self-immolation,” also states, “But there is some truth in his tweetstorm Sunday that included attacks on Roethlisberger as well as Patriots owner Robert Kraft, who was charged in a massage parlor prostitution sting that early on was thought to be part of an anti-sex trafficking investigation. It is that there appears at times to be different treatment for various NFL actors accused of seemingly similar crimes — or of any type of delinquency at all… It is an observation borne out in how the NFL, the media and the public discourse mediate alleged transgressions in the league. It is a thought colored by race, stoked by stature and forged by time. It is not new.”

Studies on implicit bias have shown that many white people, even within the court system find it easier to identify with other white people and tend to be more suspicious of African Americans.  In a 2015 interview with CBS-New York, Jet’s receiver Brandon Marshall stated, “White players, specifically at the quarterback position, are treated differently.”  He indicated to the interviewer that many black players feel they’re held to a different standard than their white counterparts and that he’s not alone in his thinking.  “This is not just from our locker room; this is from the locker rooms across the States. This is how guys are feeling. This is not just my opinion. These are conversations I’m having with guys,” he said.  NFL Insider Ian Rapoport tweeted that “plenty” of Patriots players weren’t happy with the decision to cut Brown.

Perhaps in another indicator of implicit bias, Mike Florio, in a PFT article indicated how the CBA favors Brown, but added, “Given his recent history of erratic and aggressive behavior, an arbitrator may be inclined to find a way to bend the facts and applicable precedent in the direction of a finding that Brown will get nothing.”  Is this wishful thinking on Florio’s part?  Florio is a former attorney.  Had he continued in the legal field and gone on to be an arbitrator or judge, would he have bent the rules to punish Brown?  This isn’t how due process is supposed to work whether in a court of law or private arbitration.

The Legal Aspects

Presuming the neutral arbitrator uses the language of the CBA, Brown’s contract, and legal precedent rather than his own biases, the situation looks favorable to Antonio Brown.

Brown’s contract with the Patriots included a $1 million base salary, along with a $9 million signing bonus plus various roster bonuses and incentives. As anticipated, the Patriots failed to pay the first $5 million of the signing bonus that was due on Monday.

During the 11 days he was employed by the Patriots, he earned two weeks of base salary amounting to $125,000 and a $33,000 roster bonus for being on the active roster for week 2.  Brown should also expect to be paid another $125,000 based on the termination clause in Article 30 of the CBA that states a terminated player is owed a quarter of the remaining balance of his base pay at termination, which for Brown would come to another $125,000.  This would potentially leave the Patriots on the hook for $9,283,333 of a contract valued at up to $15 million, per Michael McCann, UNH Law Professor and legal analyst for Sports Illustrated.

Following Brown’s tweets about being held to a different standard as Patriots owner Robert Kraft, ESPN’s Adam Schefter stated according to a source, “Kraft [is] never writing that check, no matter what the ruling is now,” but he may have little recourse depending on how the arbitrator rules.

Sports, gaming, and appellate law attorney Daniel Wallach, who also does legal analysis for The Athletic has done an outstanding job of breaking down the legal implications on Twitter.  He explains there are only four circumstances under which Brown’s signing bonus can be voided in accordance with Article 4 of the CBA, none of which are applicable to Brown’s situation.

Wallach states that in previous attempts to recoup signing bonuses, NFL teams have been unsuccessful, albeit under a previous CBA.


Since a signing bonus is considered earned at signing, it seems the Patriots will have a difficult time canceling this income, despite clauses in Brown’s individual contract that apparently contains morals clauses which the Patriots will use to challenge.  These are mostly ambiguous, however, and Article 4, Section 5(f) indisputably shows that the CBA supersedes individual contract provisions that might conflict with it.

CBA Article 4 Section 5f

Outside the signing bonus and earned income from his two weeks with the Patriots, the $33,000 game incentive bonus and severance pay, other “guaranteed” money is less secure, but the fact the Patriots signed him while aware of conflicts with his prior teams, and continued to keep him on the roster and played him after they learned of the civil suit will be difficult arguments to overcome.  The strongest argument in the Patriots favor is Brown’s text messages to the accuser from Klemko’s article since this could conceivably be viewed as a breach of the morals clauses in his contract and the behavior occurred while employed by the Patriots.

I return to where I began.

You’ve got to know when to hold ’em

Know when to fold ’em

Know when to walk away

And know when to run

You never count your money

When you’re sittin’ at the table

There’ll be time enough for countin’

When the dealin’s done

Every gambler knows

That the secret to survivin’

Is knowin’ what to throw away

And knowin’ what to keep

‘Cause every hand’s a winner

And every hand’s a loser

And the best that you can hope for is to die in your sleep

Well, all but the last line, anyway. As for Brown, who joined the NFL after three years at Central Michigan before completing his degree, he has re-enrolled at the college and signed up for four classes.

classes

Education is always a good thing. Perhaps to fill his spare time, he might also want to consider perfecting the art of Poker.

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Sheilla Dingus
Sheilla Dingus
Editor at Advocacy for Fairness in Sports | Website

Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.

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