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ANTONIO
He was a jerk with the lawyers for his condo association, FYI. ESPN.com:
Lawyers for the condo owner suing Antonio Brown for damages have asked that the free-agent NFL star be required to come back for another deposition, claiming he was “belligerent,” “pugnacious” and “non-compliant” in last week’s attempt.
In documents filed in the 11th Circuit Court on Wednesday, the attorneys asked that Brown be fined for his “tumultuous tirades, defiant rants, use of profane language and refusal to comport himself in a civilized and grown-up manner.” They also asked that a special master be appointed to oversee the next deposition.
Brown is accused by the owner of The Mansions at Acqualina, a luxury complex in South Florida, of damaging the condominium. They are seeking more than $15,000 and say the actual property damage was much higher.
According to a police report filed in April 2018, Brown became agitated after an alleged theft of $80,000 and a gun at the condo and started throwing things off the balcony of the 14th-floor unit.
Brown has filed a countersuit, alleging the owners failed to provide adequate security at the complex, resulting in the theft.
According to the attorneys for Acqualina, Brown arrived almost 30 minutes late for the deposition on Sept. 24, at offices just outside of Miami. He refused to answer routine questions, repeated that they should only address his counterclaim, texted on his phone during the deposition and was otherwise “obstructive.”
Lawyers for Brown have not yet responded to a request for comment.
But attorney Daniel Wallach, writing in The Athletic, thinks Antonio will see his money from the Patriots.
And to make matters worse — at least financially – the Patriots have stiff-armed Brown on his $9 million signing bonus, missing the Sept. 23 deadline for paying Brown the first installment – reportedly $5 million – which signaled that they also wouldn’t be paying him the second installment of $4 million when it becomes due Jan. 15, 2020.
Brown – who began last month armed with nearly $30 million in contractual guarantees from his Raiders deal – may end up receiving only $158,333.33 (the base salary for his two weeks with the Patriots) in total compensation.
That represents a potential reduction in compensation of more than 99 percent.
But things may be looking up for Brown – who through his attorney has denied the allegations of sexual misconduct — at least financially.
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While public sentiment may not be in Brown’s corner, the law is decidedly on his side – at least with respect to the signing bonus. Here’s why Brown will likely win:
Brown’s conduct does not fit within any of the CBA categories that would justify forfeiture of a signing bonus.
Signing bonuses are one of the few examples of true guaranteed money in the NFL. It is deemed “earned” the moment the contract is signed. It is a bonus given just for “signing” the contract.
A number of court decisions, including those involving former NFL players Chuck Smith, Kelvin Bryant and Jim Kelly, have recognized that a signing bonus is “earned” on the date of the contract signing.
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The CBA, in Article 4, Section 9(a), identifies only four circumstances that would justify the forfeiture of a player’s signing bonus or any other salary “already earned” by the player.
These four circumstances – referred to as a “Forfeitable Breach” – are limited to the following: (1) the player “willfully fails to report, practice or play” with the team (e.g., holding out); (2) the player is unavailable to the team “due to conduct by him that results in his incarceration”; (3) the player is unavailable to the team “due to a nonfootball injury” that resulted from a “material breach” of the player’s contractual obligation “not (to] engage in any activity other than football which may involve a significant risk of personal injury”; or (4) the player “voluntarily retires.”
None of these categories apply to Brown. So there is no allowable basis under the CBA for the Patriots to recoup his signing bonus. Indeed, Article 9, Section 4 makes crystal clear that salary “already earned may never be forfeited except as expressly provided herein.”
That language would seemingly prevent the Patriots from relying on any grounds beyond the four specific circumstances “expressly provided” in Article 4, Section 9(a) as a basis for voiding Brown’s signing bonus.
The CBA trumps the forfeiture provisions in Brown’s contract with the Patriots.
Faced with this obstacle, one might expect the Patriots to just roll over and pay Brown his signing bonus.
But there’s too much bad blood here.
While initially taking the high road by thanking the Patriots for giving him an opportunity, Brown soon unleashed a torrent of invective on Twitter, even referencing team owner Robert Kraft’s recent arrest for soliciting prostitution. That all but ensured that the Patriots would make Brown chase his money.
The Patriots really have nothing to lose by delaying. Whether they pay now or pay later, the Patriots would still owe Brown the same $9 million, without any interest tacked on. Unlike civil judgments on amounts owed pursuant to a written contract, for which interest would ordinarily accrue, the CBA does not provide for interest. Instead, Article 43, Section 12 of the CBA empowers the arbitrator to award only post-judgment interest, assessed beginning with the date of the arbitrator’s decision.
So assuming the Patriots dig in here, what arguments can they raise?
Without any apparent “CBA-focused” arguments, the Patriots are expected to rely on personal-conduct clauses in Brown’s contract as a basis for voiding his signing bonus. For example, SI’s Albert Breer has highlighted language in Section 28 of Brown’s contract that would allow the Patriots to “void” his salary guarantees if he “takes any action that materially undermines the public’s respect for, or is materially critical, of the Club, Player’s teammates or the Club’s ownership, coaches, management, operations or policies.”
However, if you look at Paragraph 28 more closely, you will notice that the nullification language contained in subparagraph (b) refers only to the $1 million salary guarantee denoted in subparagraph (a), and does not address the signing bonus. As such, the only consequence of Brown being adjudged by an arbitrator to have violated Paragraph 28 would be the forfeiture of his $1 million salary guarantee.
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The federal courts have recognized that NFL player contracts cannot include forfeiture language that deviates from the CBA. In a 2009 decision arising out of the Atlanta Falcons’ attempt to recoup Michael Vick’s signing bonus after he pleaded guilty to federal dogfighting charges, Judge Roger Wollman, writing for a three-judge panel on the Eighth Circuit, cautioned that “(a)lthough some of the terms of individual player contracts may vary, a contract cannot provide for forfeiture that is prohibited under the terms of the . . . CBA.”
With three separate CBA provisions and a federal appeals court decision standing in the way, it would seem highly unlikely (if not impossible) for the Patriots to prevail in a signing bonus dispute based on personal-conduct provisions in Brown’s contract that are seemingly untethered to the obligation to pay the signing bonus, and, in any event, are in direct conflict with the CBA.
Any defense by the Patriots based on a failure to disclose the civil lawsuit threat is foreclosed by federal case-law and by the team’s own actions in playing Brown.
As to whether the Patriots can void the signing bonus based on Brown’s failure to disclose the sexual assault allegations – which may have been known to him prior to signing with the Patriots – there are, not surprisingly, several additional legal obstacles here as well.
This is essentially a fraudulent inducement defense: i.e., that had Brown disclosed the civil lawsuit possibility and underlying allegations to the Patriots, the team never would have offered him a contract, let alone signed him to a deal that included so much bonus money up front.
Besides being foreclosed by the CBA language expressly limiting forfeiture to four specific situations (none of which include claims of fraud), any fraudulent inducement theory predicated on Brown’s concealment of material facts would run counter to the 2008 federal court decision in White v. National Football League. In that case, Judge David Doty held that the Falcons could not rely on other “legal or equitable theories”– such as fraud or fraudulent inducement – to recover bonus monies previously paid to Vick that would otherwise be protected from forfeiture under the CBA. Doty reasoned that such claims are preempted by federal law since they are “inextricably intertwined” with the CBA, observing that “any successful fraud or fraudulent inducement claim requires examination of the contract and the terms set forth in the CBA.”
Additionally, any potential defense grounded in fraud would seem to be undercut by the Patriots’ decision to activate Brown for the Sept. 15 game against the Miami Dolphins. If the Patriots were unaware of the sexual assault allegations when they signed Brown on Sept. 7, they certainly became aware of those no later than Sept. 10, when news reports of the filing of the lawsuit first surfaced. At that point, the Dolphins game was still five days away – plenty of time for the Patriots to waive Brown. But the Patriots chose to play Brown.
This conscious choice by the Patriots can be viewed legally as a waiver of any claim of fraudulent inducement. One of the essential elements of any fraud claim is that the allegedly defrauded party “relied” on the fraudulent statements made by the person who is accused of the fraud. But, under the law, any such reliance must be “reasonable.” The Patriots’ decision to play Brown – after becoming aware of the sexual assault allegations – undermines any claim of reasonable reliance necessary to support a “fraud-based” theory for voiding the signing bonus.
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An even better example is the case involving Plaxico Burress, the former New York Giants wide receiver who was suspended by the team for four games after he accidentally shot himself in the leg at a Manhattan nightclub during the 2008 season. The Giants declined to pay Burress a $1 million installment of a $4.25 million signing bonus, which was part of a five-year contract extension he signed earlier in the season. The payment was due two weeks after the shooting occurred.
The Giants contended that Burress’ contract allowed them to forfeit part of his signing bonus in the event that he was incarcerated or if he was suspended for conduct detrimental to the team. Critically, there was no language in the then-existing CBA which allowed the team to recoup signing bonus money that had already been earned by the player.
The absence of any specific CBA forfeiture language was the key factor in Burress’ successful grievance against the Giants, with arbitrator Burbank (who had ruled against Vick before being reversed) holding that the Giants were required to pay Burress his $1 million signing bonus plus an undisclosed amount for a 2008 roster bonus.
The Burress ruling was considered a precedent-setting victory for the players, in that it was seen as protecting signing bonuses from forfeiture even in circumstances where a player was unable to perform due to his own criminal misconduct. As then-NFLPA general counsel Richard Berthelsen succinctly summed up the Burress arbitration decision, “(a)nything that’s earned prior to conduct is the player’s to keep.”
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The 2011 CBA even states that the new forfeiture language is intended to “overrule” the arbitration decision in the Burress case.
Unfortunately for the Patriots, league negotiators weren’t prescient enough to anticipate the Brown conundrum in 2011. The current CBA does not allow for forfeiture of a signing bonus based on a player’s conduct subsequent to the execution of the contract, save for the four highly-specific circumstances identified in Article 4, Section 9(a): failure to report (including holdouts), incarceration, nonfootball injury resulting from a material breach, and, of course, retirement.
Maybe the next CBA will expand the list of categories that would justify the forfeiture of a player’s signing bonus or other earned salary, and, perhaps, allow clubs to include additional forfeiture provisions, such as a “conduct detrimental” provision or a “loyalty clause” (a la the Bengals) that might cover the misconduct for which Brown has been accused.
Or, perhaps, more realistically, the next CBA might include language that would allow a team to claw back a signing bonus where the player has failed to disclose the existence of circumstances, such as a sexual assault accusation or other serious legal matter that has not yet been made public (but of which the player is aware), which would materially undermine the public’s respect for the club or could deprive the club of the player’s services during the duration of his contract.
But the current CBA – which runs through 2020 – limits forfeiture to just four specific situations, none of which are applicable here. So, unless there is a Hail Mary legal argument out there, the Patriots appear headed to their first defeat (albeit, legal) of the 2019 season.
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