Antonio Brown is still on the Patriots roster, and it appears he will make his debut for the team Sunday in Miami.
This despite Brown being hit with a civil lawsuit in Florida Tuesday, his former trainer accusing him of sexual assault and rape in incidents that happened over the last two years. Brown acknowledged having a sexual relationship with the trainer, Britney Taylor, but vehemently denied the accusations via his attorney.
That the Patriots haven’t released Brown, and the NFL hasn’t placed him on the commissioner’s exempt list (the equivalent of paid leave), has prompted some outrage both locally and nationally. Brown practiced all week with the Patriots and is preparing as if he will play Sunday.
“NFL must do the right thing and bench Antonio Brown,” read a headline in USA Today.
But the Patriots and the NFL are simply following precedent by taking a wait-and-see approach. More harm can be done by punishing him now than by taking a more cautious approach. And the Patriots are betting that the majority of their fans care mostly about a seventh Super Bowl banner and a run at a 19-0 season, and that this lawsuit isn’t enough to get rid of Brown.
The accusations and text messages are nasty, and they don’t paint Brown in a flattering picture. But the accused have rights, too, and there is no need to rush to judgment.
The NFL is planning to meet with Taylor this coming week. The league will ask her to put all her cards on the table: Are there any videos, audio recordings, text messages, or other evidence that she withheld? Is there more to the situation than she detailed in the lawsuit?
The last thing the NFL wants is another Ray Rice situation, when a surprise video or audio recording comes out after the fact and makes everybody look bad.
Once the NFL meets with Taylor, commissioner Roger Goodell should have a clearer picture of what to do. The exempt list is a possibility. The Patriots could simply release Brown, as well.
But until that meeting, there is no precedent for putting Brown on the list.
The NFL’s Personal Conduct Policy states three scenarios under which Goodell can place a player on the exempt list.
The first is “when a player is formally charged with a crime of violence.” This is a major distinction, as Brown has not been charged with a crime. In fact, Taylor never once contacted police about any of her allegations, nor have police investigated any of them since the lawsuit was filed.
All of the players who have gone on the exempt list over the last few years — Adrian Peterson, Greg Hardy, Kareem Hunt, Tyreek Hill, Josh Brown, Ra’Shede Hageman, Reuben Foster — were either charged with violent crimes or investigated by police.
The second scenario is “when an investigation leads the Commissioner to believe that a player may have violated this Policy by committing any of the conduct” prohibited in the policy. But the NFL hasn’t conducted its investigation yet. Taylor couldn’t do it right away because she reportedly is getting married this weekend.
And even when the NFL does speak with Taylor, it could be a case of he-said-she-said, and Brown’s attorney won’t have the right to question her. She will likely need to provide more compelling evidence than is included in the lawsuit for Goodell to place Brown on the exempt list.
The third scenario could apply to this weekend. The policy states: “In cases in which a violation relating to a crime of violence is suspected but further investigation is required, the Commissioner may determine to place a player on the Commissioner Exempt List on a limited and temporary basis to permit the league to conduct an investigation.”
So Goodell could take Brown off the field this weekend, then make a permanent decision after interviewing Taylor. But “paid leave” is still a form of punishment. Brown would miss out on a $33,333 roster bonus. It also would make it harder for Brown to achieve his $4.5 million in performance incentives (which are based on catches, yards, and touchdowns). And it would cast Brown as guilty in public opinion before he has had his day in court.
“What if he’s exonerated? What if the suit is dismissed? What if she’s sanctioned for filing a frivolous lawsuit?” said sports legal expert Daniel Wallach of The Athletic. “You can’t unscramble the egg once you impose discipline.”
The precedent in the NFL and other sports is to let players remain on the field during a civil suit, which could take months if not years to play out.
In the summer of 2018, Jaguars defensive tackle Marcell Dareus was hit with two lawsuits accusing him of sexual assault. He wasn’t punished by the NFL, played 15 games last year, and had both lawsuits dismissed this past offseason.
And in August of 2015, the NBA’s Derrick Rose was accused of gang rape in a civil suit. But Rose was allowed to play the entire 2015-16 season, then was found not liable by a jury in October of 2016.
Of course, if more evidence emerges, or Brown is found liable by a jury, then he will be gone quickly. But if a civil lawsuit were all it took to get players taken off the field, that would subject athletes to extortion, and significantly swing the leverage against them in negotiation settlements.
“If a player can face the loss of his livelihood just because a plaintiff files an unsworn civil complaint, that gives that person an awful lot of power and leverage over the player to extract a settlement,” Wallach said.
That’s the NFL’s side. But what about the Patriots? They could simply release Brown regardless of anything the NFL does. Though they just agreed to a one-year deal that included $10 million guaranteed, there is enough broad language in the standard NFL contract for them to likely find a way out.
It would be a good bit of public relations for the Patriots to release Brown, especially given Robert Kraft’s own legal issue this year. But the Patriots have shown this week that they are just fine following Goodell’s lead. If Goodell says Brown is OK to play, then the Patriots are OK with it, too.
The Patriots, fairly, also believe that Brown has rights, and understand the bad precedent that could be set by prematurely disciplining a player. Of course, it’s also fair to wonder whether they would be so understanding with a player of lesser talent.
The Patriots made a Faustian bargain when they brought in Brown. Perhaps they didn’t know an ugly lawsuit would be coming out the day after they signed him, but they knew they were getting a giant, unpredictable headache in him.
They’re finally dropping all pretenses that they prioritize morals and character. Bill Belichick was asked Tuesday about “The Patriot Way,” and answered, “I don’t know that I’ve ever used that term. I’m not really sure what that is, either.”
Ownership now is telling the public that it doesn’t believe in it, either. This is all about winning.
The Patriots want Brown, warts and all, because he’s a phenomenal football player. They are betting that after this initial furor dies down, most people will move on, and the focus will shift back to Brown as a football player.
And they’re betting that in 20 years, the only thing Patriots fans will remember about 2019 is that it was the year they won their seventh Super Bowl.