November 16, 2019
Talented but unemployed NFL receiver Antonio Brown reportedly met with Roger Goodell on Thursday, hoping to resolve his status and emerge from the purgatory that has left him unsigned since he was released by the Patriots on September 20.
Scarcely a blub about the meeting has emerged through media coverage in the two days following the scheduled interview. This, from NFL Network’s Ian Rapoport, was the last, and one of the few mentions I was able to locate.
From NFL Now: The NFL’s investigators are meeting today with free agent WR Antonio Brown, but this doesn’t necessarily mean anything is ending any time soon. pic.twitter.com/w1Oui58WFD
— Ian Rapoport (@RapSheet) November 14, 2019
Rapoport’s take noting the meeting doesn’t necessarily mean that resolution is coming any time soon seems to align with Adam Schefter’s report a few days prior indicating that Brown probably won’t be seeing any action for the remainder of the season.
Sources: Free agent WR Antonio Brown is not expected to play again this season.https://t.co/9tyEK2LCIt
— Adam Schefter (@AdamSchefter) November 10, 2019
All of this fuels speculation as to potential collusion on the part of the NFL to keep Brown unemployed. UNH Law Professor and Sports Illustrated legal analysist, Michael McCann addressed the topic in a November 7 article. McCann found an obscenity laden Twitter outburst by Brown accusing the league of racism peculiar given the timing prior to his league meeting—a meeting that could potentially clear him or end his career. In seeking to understand Brown’s reasoning, McCann wrote:
“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.”
This seems to be a most likely scenario, and regardless of the discipline issued, McCann is correct in stating that Brown will be powerless to challenge it under Goodell’s immense power granted through Article 46 of the collective bargaining agreement.
Did Collusion Occur?
While it won’t automatically put him back on the field, as Colin Kaepernick knows all too well, Brown could move proactively to file a collusion grievance against the league under Article 17 of the CBA instead of waiting to see what league discipline might be imposed and when.
Here’s why I think he might have a shot.
Within hours of his release by the Patriots on September 20, the NFL issued the following statement on Brown’s status.
The Commissioner’s Exempt List isn’t technically punishment. It’s basically equated with administrative or paid leave while a player is under investigation for misconduct, therefore, it makes no sense to place an unemployed player on the list.
The league announcement, however, cautions any team that might consider hiring Brown that placement on the exempt list “may become appropriate,” meaning that should a team hire him, they would likely be paying him to take a vacation for an undetermined period of time, while receiving no value in return.
Placement on the exempt list was discussed but not initiated during Brown’s brief tenure with the Patriots, so it would seem that any potential team interested in Brown’s services was aware that it was a possibility, therefore nullifying any need for the NFL to make a public announcement to that effect.
Article 17 States:
In the simplest terms, as broken down by McCann, “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.”
After his controversial exit from the Pittsburgh Steelers and subsequent landing with the Oakland Raiders, the wide receiver secured his share of headlines, perhaps in some ways defining the NFL’s 100th season but not exactly in the way the league had envisioned it’s 100-year celebration.
After a turbulent preseason in Oakland, the Raiders organization complied when he asked to be released, and within hours he was promptly signed by the New England Patriots.
To some Brown’s behavior represented that of a petulant child, rewarded for misbehavior, while others (myself included) saw it as a slick labor move in a league designed to guard against such things. Whatever the case, it soon came crashing down.
The day after Brown signed with the Patriots news broke of a civil lawsuit in which Brown is accused of sexually assaulting a former trainer. Rumors of Brown being placed on the Commissioner’s Exempt List began to swirl but could also be dismissed as speculation after the Patriots played Brown in their game against the Miami Dolphins, where the receiver caught a touchdown pass from Tom Brady and made a respectable showing for a newcomer just learning the playbook. Just when it appeared both the NFL and Patriots would bide their time and let the lawsuit play out, Robert Klemko of Sports Illustrated published a shocking report of other sexual misconduct on Brown’s part. In response to the accusations by an artist who’d been commissioned to paint a mural at Brown’s home, he sent hostile text messages to her and those were also published by Sports Illustrated. Shortly afterward, he was released by the Patriots a mere 11-days after they’d signed him.
Collusion generally isn’t easy to prove since the fact that a player remains unemployed isn’t considered hard evidence of collusive behavior. Brown has provided teams numerous reasons not to sign him, however, the NFL’s announcement could feasibly be construed as an effort on the part of the NFL to keep Brown unemployed and prevent him from upstaging the league in its100th year. Since the announcement was made publicly, it obviously reached all 32 teams.
In early November multiple reports surfaced that the Seattle Seahawks were actively interested in Brown and quarterback Russell Wilson was adamantly in favor of signing him. Ultimately, the Seahawks elected to sign Josh Gordon when he, too, was released by the Patriots. Could the league announcement have been the deciding factor influencing Seattle’s choice?
Brown’s agent has inferred that several teams have shown interest in Brown, yet he remains unsigned. Is it possible that teams who expressed interest told his agent they were influenced by the league’s threat of placing Brown on the exempt list? It certainly doesn’t seem outside the scope of possibility.
As stated in Article 17 Section 5, any player or the NFLPA may file a collusion grievance.
Unlike an Article 46 disciplinary grievance in which the commissioner or his delegate conducts the arbitration and decides the matter, an Article 17 grievance is heard by a neutral system arbitrator selected jointly by the NFL and NFLPA. Federal Rules of Evidence apply, and discovery is conducted, with the party filing the grievance responsible for proving by “clear preponderance of the evidence” that collusion did occur causing economic injury to the player. Brown would have to prove either by obtaining text messages, emails or other communication that they agreed to keep him out of the league or felt pressured to do so due to the NFL’s communications.
Clear preponderance of the evidence equates to the “clear and convincing” standard in certain judicial settings. It is higher than the typical civil standard, “preponderance of the evidence” which means a thing is more likely to have occurred than not, and just a tad below the criminal standard of “beyond a reasonable doubt.”
If the system arbitrator, after hearing the arguments and considering the evidence rules in favor of a player he would be awarded treble damages compensating him for lost income as well as punitive damages imposed as a punishment to those responsible for his economic losses.
When Colin Kaepernick and Eric Reid filed collusion grievances against the NFL and its teams, system arbitrator Stephen Burbank denied the NFL’s motion for summary judgment, meaning that Kaepernick and Reid had produced credible evidence that merited a full hearing. Before a decision was given, however, the men settled with the league possibly due to pressure from the arbitrator. There was substantial leverage he could have applied to both the plaintiffs and defendants.
If the arbitration had completed its course to a decision, it’s a near certainty that the loser would have filed an appeal in Federal Court. While arbitration proceedings are private, with no briefing or discovery available to the parties outside the arbitral process, this information would be open to media access public scrutiny through the court docket. This presented the potential for a public image nightmare for the NFL regardless of if they won or lost the arbitration.
For Reid and Kaepernick, a loss before the arbitrator would have almost certainly been final. Federal courts avoid disturbing an arbitrator’s award even if it seems unfair or the judges disagree with the arbitrator’s ruling. In order to disturb the award, a district court must, and later, in all likelihood, a panel of appellate judge would have to be convinced of a severe procedural error. This seemed unlikely due to the length of time and ample discovery permitted by Burbank.
Obviously, if Brown filed a collusion grievance and prevailed in the arbitration he’d have the upper hand in federal court for the reasons stated above, but if he lost the arbitration it’s possible he could prevail on a procedural issue that as of yet hasn’t been tested in federal court.
A Novel Theory
Unlike discipline, which under Article 46 of the Collective Bargaining Agreement is fully, albeit clumsily detailed, as is Article 17 the Anti-Collusion segment, there is no article or express provision in the CBA that defines or governs the commissioner’s exempt list.
The commissioner’s exempt list authority is derived from the NFL’s Personal Conduct Policy which is not bargained for or even referenced in the CBA.
In the preamble of the Personal Conduct Policy, the commissioner claims authority under the Constitution and Bylaws, Collective Bargaining Agreement and NFL Player Contract to address and sanction conduct detrimental to the league and professional football. “Conduct detrimental” is governed and derived from Article 46 of the CBA. The NFLPA, with its own Consitution and Bylaws, is not bound by the NFL Constitution and whenever there’s a conflict between a player’s contract and the CBA, the CBA is the superseding document.
In discipline cases, Roger Goodell has exercised his authority to fine or suspend a player as he sees fit under the written terms of Article 46.
The Article goes on to give the commissioner the right to choose a hearing officer including himself to determine the discipline as well as hear the appeal regarding fines or suspensions.
Here’s how the Commissioner’s Exempt List is defined in the Personal Conduct Policy. Note that it is not referred to as discipline in any way.
It’s called “leave with pay” or “paid administrative leave”, but the terms of this leave were never bargained, or if they were there is no documentation to confirm an agreement with the players’ union.
Contrast this with the express provisions in the NBA/NBAPA Collective Bargaining Agreement.
While administrative leave seems like a reasonable measure, at least in certain instances, the relevant question to keep in mind is, “Does the NFL have the authority to unilaterally impose a policy that affects players outside of collective bargaining?”
With Antonio Brown, the exempt list has not been used, nor is it applicable since he’s unsigned, but through threatening to place him on it, it has been weaponized as a non-bargained for method of discipline with no clear-cut boundaries. Theoretically, a league investigation could continue indefinitely.
The league is reported to have interviewed Brittney Taylor, Brown’s accuser in the civil lawsuit and now, presumably Brown. But has the SI accuser been interviewed? What if Roger Goodell interviews all the relevant parties and continues to “believe” that something “may” have occurred without ever reaching a conclusion that he might base a suspension on?
As noted sports law and gaming attorney Daniel Wallach said in an interview with Advocacy for Fairness in Sports last month, “If Brown should be eventually found not liable of wrongdoing and his accuser is found not credible, “he’s already suffered tremendous loss that he can’t recover.”
Is there any relevant precedent?
The NFLPA challenged Adrian Peterson’s placement on the exempt list in 2014 when Peterson was charged with child abuse and playing for the Minnesota Vikings through CBA grievance procedures. On November 10, 2014, the NFLPA issued the following statement:
On April 10, 2016, ESPN reported:
An arbitrator has ruled against the NFL Players Association in its grievance, filed more than a year ago, that the league’s personal conduct policy implemented in late 2014 violated terms of the Collective Bargaining Agreement.
The union had challenged the authority granted to commissioner Roger Goodell to make wide-ranging decisions on discipline, as well as the NFL’s use of paid leave and its use of the Commissioner Exempt List in disciplining players accused of being in violation of the personal conduct policy.
The NFL maintained that the commissioner’s authority to discipline players for conduct detrimental to the league has been a part of every CBA negotiated by the league and NFLPA. The league said the use of paid leave was not a form of discipline but rather part of a longstanding practice of the commissioner to address allegations of violence and serious criminal behavior on a temporary basis while an investigation is under way.
Arbitrator Jonathan B. Marks encouraged the sides to reach a settlement on the matter, but those talks broke off two weeks ago. In his 54-page decision, Marks backed up the commissioner’s authority as well as the use of paid leave.
Using tweets from Andrew Brandt and Daniel Kaplan, Bleacher Report added concluded that Marks’ ruling appeared to strengthen the commissioner’s disciplinary authority.
Opinion calls for player placed on Exempt List to have right to hearing, as to why/how on List. Hearing in front of who put him on list (RG)
— Andrew Brandt (@AndrewBrandt) April 11, 2016
@dkaplanSBJ Yes, RG tried to delegate to Todd Jones/Lisa Friel at first level of discipline, arbitrator says he cannot, must do so himself.
— Andrew Brandt (@AndrewBrandt) April 11, 2016
Mike Florio of Pro Football Talk indicated that Arbitrator Marks had taken it upon himself to further embellish the non-bargained-for, yet upheld provision:
A player placed on the Commissioner’s exempt list has the same appeal rights that the player would have if suspended without pay.
“The player, or the NFLPA with the player’s approval, may within three days following written notification [of placement on the Commissioner’s exempt list] appeal in writing to the Commissioner,” arbitrator Jonathan Marks explained in his ruling. “Either the Commissioner or his designee, appointed after consultation with the Executive Director of the NFLPA, will serve as hearing officer. At the hearing, the player may be accompanied by counsel and both the NFLPA and the NFL may be present and present evidence.”
Marks did not address whether the Commissioner is required to stay the placement of the player on the Commissioner’s exempt list until the hearing is resolved. This means that the issue will likely be resolved the first time the device is used.
If the Commissioner declines to stay the implementation of the placement of the player on the Commissioner’s exempt list until the hearing has been held, an arbitration will be conducted on an expedited basis. Possibly, the union will take the issue to court for a ruling that, until the hearing has been resolved, the player can’t be kept from playing, even with pay.
So it’s not a slam-dunk outcome for the NFL. The decision to use the Commissioner’s exempt list, which previously had provided the player with no recourse, now has a caveat. A full-blown hearing must be held, and the outcome of that hearing will be subject to a potential challenge in court.
To date, the legitimacy of the Commissioner’s Exempt List has not been tested in the court system. On November 18, 2014 the NFL announced:
Adrian Peterson of the Minnesota Vikings was notified today that he has been suspended without pay for at least the remainder of the 2014 NFL season, and will not be considered for reinstatement before April 15
Peterson was removed from the exempt list and suspended indefinitely without pay. It was the indefinite suspension imposed by Roger Goodell that was challenged in federal court and finally affirmed by the Eighth Circuit Court of Appeals, and not his placement on the exempt list, or whether the exempt list is derived from the CBA, which at the time the lawsuit was filed in the District of Minnesota had not yet been decided, and only reached its conclusion in April 2016.
A Walk in the Weeds
The unilateral disciplinary authority of the commissioner has been upheld in both the Eighth and Second Circuits. Per the Eighth Circuit in the Peterson Opinion:
The NFL has successfully maneuvered to have all discipline cases since Peterson removed to the Second Circuit, where the opinion in Brady strongly reinforces the commissioner’s disciplinary authority. In Brady, of course, the exempt list was never a factor since never placed on it, and like the Peterson appeal, the fairness of the arbitration that upheld the player’s suspension was at issue.
Drawing from Misco, which was also cited in Peterson, the Second Circuit wrote:
Regarding the exempt list, there is no mention of it in the CBA contract, therefore, it may be worthwhile to question if reading a non-existent provision into a contract ignores its plain language?
The NFL Management Council is the sole bargaining representative of the NFL and the National Football League Players Association is the sole representative of the players, thus it would seem they are the only parties with authority to implement changes to their joint contract. Had Arbitrator Marks’ decision been challenged in federal court, would he have been viewed as acting within his authority in accordance with the plain language of the contract or would he have been justified in altering the contract to make it fairer by adding a stipulation entitling a player to challenge placement on the exempt list?
Is the Commissioner’s Exempt List drawn from the essence of the collective bargaining agreement? If the CBA permits the commissioner to fine or suspend a player but the exempt list is neither a fine, nor suspension, is it allowable within the agreed-upon terms? Does the commissioner’s broad authority grant him the ability to impose discipline not explicitly derived from the CBA? For instance, had the commissioner opted to subject corporal punishment upon Adrian Peterson, rather than, or in addition to a fine or suspension, and ordered security personnel to beat him with a tree branch until his buttocks, legs, and torso were bruised and bleeding, mirroring the allegations he faced, would this have been an abuse of discretion or an allowable method of discipline?
If, as the commissioner claims, the exempt list is not a disciplinary measure, then how can it be viewed as an extension of Article 46-Commissioner Discipline?
To look at a different type of contract, let’s consider a lease. If pets are explicitly prohibited and a renter brings a pet to domicile on a property, then she clearly is in violation of the lease agreement. If a lease has certain pet restrictions, for instance permitting cats but not dogs, then the rules are clear. But what if a lease doesn’t mention pets in any way?
The tenant would not be in violation of the lease if she adopted a puppy and brought it to live with her unless other lease violations such as property damage occurred as a result. The landlord would be outside of his authority if he tried to evict the tenant based on a non-existent rule. Instead, at the expiration of the lease, he could alter the terms, forcing the renter to comply or move or perhaps the tenant could negotiate terms allowing for her specific pet.
Can the commissioner legally impose discipline through a non-existent provision in a CBA? Throughout the Peterson and Brady opinions, the courts repeatedly emphasized that you get what you bargain for in a labor agreement. This would seemingly apply equally to the NFL as well as the union.
I’m not a lawyer, although I do have some experience in negotiating and interpreting contracts though prior work as a business owner and project manager, and drawing from the lease example, as a pet owner, and experience has taught that a contract should be interpreted as written.
I can’t say with certainty that Antonio Brown and/or the NFLPA would prevail on the arguments presented, but since the NFLPA has challenged the exempt list in a prior grievance but not tested the arbitrator’s ruling or challenged the provision in federal court, it would seem, based on the rulings in Brady, Peterson, and others in which the courts applied the same case law and reasoning, that the challenge could invoke a viable and perhaps winnable argument. Though Brown has not been placed on the exempt list, if he could prove the threat of placement equated to collusion to bar his employment from the league it would seem to reinforce the argument that it constitutes an unbargained for method of discipline and abuse of discretion.
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