AROUND THE NFL

It will be the defensive appeals officer, a fellow linebacker who knows exactly what LB VONTAZE BURFICT had to work with as TE JACK DOYLE was in his sights, who will hear the linebacker’s appeal of his season-long suspension.  Josh Alper of ProFootballTalk.com:

 

The NFL suspended Raiders linebacker Vontaze Burfict for the remainder of the regular season this week because, per NFL vice president of football operations Jon Runyan, Burfict has “continued to flagrantly abuse rules designated to protect yourself and your opponents from unnecessary risk.”

 

Under the Collective Bargaining Agreement, Burfict has the right to appeal that ban and he has done just that. According to multiple reports, Burfict’s appeal will be heard on Tuesday. The suspension is in effect pending the appeal.

 

The appeal will be heard by Pro Football Hall of Famer Derrick Brooks. Brooks and former NFL wideout James Thrash are the two appeals officers jointly appointed by the NFL and NFL Players Association.

 

Brooks heard Burfict’s appeal of a three-game ban for a hit on then-Steelers wideout Antonio Brown in a playoff game after the 2015 season. He upheld the penalty in that case, but Burfict had more luck with Thrash the next year as a five-game suspension was dropped to three games.

 

– – –

Interesting question in Jay Glazer’s mailbag at The Athletic:

 

Do organizations notice or care about fan unhappiness? For example, when it seems like there is a huge swell of support to bench player X or to fire the coach or GM, do organizations give any weight to fan opinions or just ignore it until they stop buying tickets? — Greg S.

 

Yes, of course, they notice. What they can’t do though is get run by the Twitter world. That’s what you can’t do. We’re not out there every single day at practice so we don’t see what happens behind the curtain. We also don’t know what they’re working on to see who’s messing up and who’s not. There’s a reason why teams stick with quarterbacks longer than we know, it’s because they see what happens in practice every day. But, yes, it’s a business. Of course, they see it, of course, they know. When the Giants decided to bench Eli Manning a couple of years ago there was such an incredible outpouring of resentment from outside the organization. The switchboards at Giants Stadium were getting lit up. They ended up hearing the fans and switching back. The fans pay all of our salaries, every one of us.

 

NFC NORTH

 

MINNESOTA

More smoke surrounding WR STEFON DIGGS.  Mike Florio of ProFootballTalk.com:

 

A day after his failure to show up for work sparked plenty of speculation about receiver Stefon Diggs‘ future in Minnesota, his presence at practice (and comments to the media) sparked plenty more.

 

His head coach opted to add no fuel to the fire. Via Chris Tomasson of the St. Paul Pioneer Press, Mike Zimmer declined to discuss the Diggs situation, calling it an “internal matter.”

 

As to whether Diggs will play against the Giants on Sunday, Zimmer said (via Chad Graff of TheAthletic.com), “We’ll see.”

 

Reporters saw Diggs catching passes at the end of Thursday’s practice not from quarterbacks Kirk Cousins or Sean Mannion. Instead, via Courtney Cronin of ESPN.com, it was practice-squad quarterback Jake Browning throwing to Diggs.

 

Trade speculation regarding Diggs has swirled for days, and Diggs did nothing to dispel it on Thursday. The Vikings reportedly have no plans to trade Diggs, but it feels like the situation simply isn’t sustainable — especially if someone makes the Vikings a viable offer for Diggs.

 

As explained here last week, the dramatic change in Minnesota’s offense makes Diggs a luxury the Vikings can’t afford. The problem is that depth behind Diggs and fellow starter Adam Thielen is thin.

 

NFC EAST

 

NEW YORK GIANTS

Jordan Raanan on the possible return of RB SAQUON BARKLEY:

 

New York Giants running back Saquon Barkley “felt good” after a second straight day of running and even got to open up and cut a bit more than the previous day as he recovers from a high ankle sprain.

 

Barkley was officially listed on the injury report as did not practice. He worked on the side with a trainer and seemed to be moving well.

 

“Got to to do a little bit more. Felt good,” Barkley said Thursday. “But like I said, focus on the Vikings and focusing on tomorrow and attacking tomorrow.”

 

The Giants (2-2) again didn’t rule him out for Sunday’s game against the Minnesota Vikings.

 

“He’ll be doing a little bit more each day,” coach Pat Shurmur said. “We’ll just bring him back as quickly and as smartly as possible.”

 

Shurmur went as far as to say he thought it was realistic that Barkley could return this week. That still seems highly unlikely.

 

If a coach, usually cautious, says a Sunday return is “realistic”, why would Raanan write it is “highly unlikely” in the very next sentence.  Back to Raanan’s copy which provides no clear answer other than the initial announced diagnosis – which may be non-operative at this point.

 

Barkley was evasive with his answers on a projected return. He smirked when asked the first time about how close he was to getting into a game. He then sidestepped questions about a timeline for the injury.

 

Initial reports put Barkley’s absence at 4-8 weeks. Barkley was taking handoffs on the side and cutting at near full speed 11 days later.

 

“It feels good to get back out there with my teammates,” he said. “We’ve been having a great week of practice. Just got to continue to get better. Got one more day to attack it on the field to prepare ourselves best for the Vikings.”

 

A return next week on Thursday night against the New England Patriots is more likely than this Sunday. But even that might be a stretch with a short week.

 

Barkley praised the work he has done with the Giants’ medical and training staff (and his own personal trainers and physical therapists) and said he would trust their decision about when he can return to practice and games.

 

“I wouldn’t say I would fight it,” he said.

 

 

PHILADELPHIA

No WR DeSEAN JACKSON this week.  Darin Gantt of ProFootballTalk.com:

 

The Eagles won’t have DeSean Jackson this week, but there was good news in terms of their injury report.

 

Via Reuben Frank of NBCSportsPhiladelphia.com, Eagles coach Doug Pederson said Jackson would not play this week, but that Jason Peters would be available for Sunday’s game against the Jets.

 

The veteran left tackle was added to the injury report yesterday, but Pederson said that won’t keep him off the field.

 

Jackson will be missing his third straight game with a groin injury, though the Eagles ought to be able to withstand his absence against the Jets.

 

Pederson also said cornerback Sidney Jones would be able to play. He’s been limited this week with a hamstring issue.

 

 

WASHINGTON

Here’s the problem – Coach Jay Gruden was not all in on the decision to draft QB DWAYNE HASKINS.  Michael David Smith of ProFootballTalk.com on a report in the home of anonymous sources, the Washington Post:

 

A widespread sense that Washington coach Jay Gruden didn’t want the team to draft rookie quarterback Dwayne Haskins isn’t just speculation.

 

The Washington Post reports both that Gruden did not want Haskins, and that Haskins can sense Gruden didn’t want him. Both of those pieces of information are attributed to unnamed sources who are close to the situation in Washington.

 

Gruden certainly hasn’t acted like he thinks much of Haskins, putting him on the field only when both Case Keenum was hurt and Colt McCoy was inactive. Gruden has still not said who will start this week.

 

The good news for Haskins is that Gruden is highly unlikely to be Washington’s coach next year, and perhaps not even for much longer this year. Haskins has a chance to play for a coach who believes in him, even if he didn’t get drafted by a coach who believed in him.

 

NFC WEST

 

LOS ANGELES RAMS

Mixed results from a heavy dose of RB TODD GURLEY on Thursday night for the now 3-2 Rams.  Lindsey Thiry of ESPN.com:

 

The Los Angeles Rams wasted no time Thursday night establishing the run with Todd Gurley, a game plan that appeared to be a drastic turnaround from their first four games of the season.

 

During a 30-29 loss to the Seattle Seahawks, Gurley rushed for 51 yards and two touchdowns on 15 carries, though he lost a fumble in the red zone. He also caught three passes for 6 yards.

 

“We wanted to get him going,” Rams coach Sean McVay said after the game. “He got some tough, hard-earned yards against a good defensive front. … That opened up some things in the passing game.”

 

Said quarterback Jared Goff: “It was great. It affected us positively. He did a great job. Ran the ball well.”

 

Gurley’s 18 touches fell short of a season high for the fifth-year pro, who had 19 touches during a Week 2 victory over the New Orleans Saints. His 15 carries also fell one short of his season high of 16, also established against the Saints.

 

Gurley’s two scores marked his 15th career game with multiple rushing touchdowns, the most in Rams history, passing Eric Dickerson.

 

“I guess that’s cool,” Gurley said. “But it’s still a loss, so it don’t really matter.”

– – –

PK GREG ZUERLEIN’s game-winning kick, from a decently-long 44 yards, just went wide.  Now the wolves are circling and Coach Sean McVay is in defensive mode.  Michael David Smith of ProFootballTalk.com:

 

The Rams missed a game-winning field goal attempt in the final seconds of Thursday night’s loss in Seattle, but they haven’t lost faith in kicker Greg Zuerlein.

 

Rams head coach Sean McVay said after the game that he remains confident in Zuerlein, who is now 12-for-15 on field goals this year.

 

“He just missed it. We have a lot of confidence in Greg. It’s one kick,” McVay said. “He’s made a lot of big kicks for us. He’s going to continue to make a lot of big kicks for us.”

 

Rams quarterback Jared Goff said the 30-29 loss was about more than any one play.

 

“It didn’t all come down to that kick,” Goff said. “There are a lot of plays that we could have done better. . . . There’s a million things that could have gone differently to change that game.”

 

But the big one was the missed field goal, and that’s the one the Rams will remember. Even if they can’t blame their loss on one player.

 

AFC SOUTH

 

JACKSONVILLE

Jay Glazer of The Athletic on the QB situation in Jacksonville:

 

Jay, what are people saying about the Jaguars’ quarterback situation? Do people think that Nick Foles will play another snap for the Jags? Thanks.  — Matt W.

 

They’re in a great position. What we’ve seen now is your backup quarterback is probably the second most valuable guy on the entire team, in any place. You see all the quarterbacks who have already gone down or who have already been replaced. Certain coaches have a rule that you can’t lose a job over injury, certain coaches don’t have that. We’ll see where the Jags are. We’re still a month or so away from Foles returning.

 

One thing about Nick Foles is the guy is incredibly consistent. He’s unbelievably confident and he has a great rhythm for the offense. He runs that offense and gets the ball out. They may have found the quarterback of the future. We’ll have to see what happens over the next month. What they do have in Minshew, at the very least, is what Nick Foles was in Philly replacing Carson Wentz. At the bare minimum, they have that kind of insurance.

 

AFC EAST

 

NEW ENGLAND

Mike Reiss of ESPN.com sings the praises of S DEVIN McCOURTY.  And actually, by his standards, so does Bill Belichick:

 

New England Patriots safety Devin McCourty was texting with Philadelphia Eagles safety Malcolm Jenkins on Tuesday night, when Jenkins pointed out a statistic that has shined a brighter spotlight on McCourty this season.

 

“Man, you’ve got four interceptions!” Jenkins texted.

 

To which McCourty responded: “Yeah, man. For a lot of years, the ball didn’t find me a lot.”

 

But as McCourty, 32, later told reporters, the ball is finding him now — at a rapid clip. His four picks lead the NFL at the quarter point of the season, and equal the total he had in the past four regular seasons combined.

 

Such is the life of the NFL safety, a player who can do everything right on a play and not be recognized on the stat sheet. But when the interceptions come — no matter how they happen — that changes quickly, as evidenced by McCourty being named AFC Defensive Player of the Month for September.

 

McCourty’s season-high for interceptions is seven, which he accomplished as a rookie in 2010 when he was playing cornerback. He moved to safety during the following season, and in 2012 totaled five interceptions.

 

Patriots coach Bill Belichick seemed to chuckle at the thought that McCourty’s four interceptions this season represented any sudden surge by the longtime captain.

 

“Devin’s done a great job for us, which he’s done in the past and it hasn’t necessarily correlated with the interception number,” Belichick said leading into Sunday’s road game against the winless Washington Redskins (1 p.m. ET, CBS). “It’s the same thing with guys rushing the passer and not having sacks, or receivers getting open but not necessarily having the catches to go with it. Some of that is just statistics. We really try to evaluate guys on a play-to-play basis and opportunities.”

 

McCourty’s role in the experienced secondary is multi-faceted, as coaches view him as a tone-setter.

 

“He’s a tremendous leader. His dedication to the team and to the game is unmatched,” cornerbacks coach Mike Pellegrino said. “Just watching him interact with the players, and the rest of the team, is impressive. And his preparation for the game is unbelievable, the way he studies a quarterback.”

 

Pellegrino added that McCourty’s four interceptions have come, in part, because “he’s just been in the right place at the right time” which is a result of his preparation and how “practice execution equals game reality.”

 

Meanwhile, McCourty said that the four interceptions — one that was tipped to him by cornerback Stephon Gilmore, two on overthrows, and one in which Jets quarterback Luke Falk didn’t see him — reflect the strength of the Patriots’ defense.

 

“I’m able to play a lot of things just on being free and knowledge because our corners are so good. I don’t have to worry about anything,” McCourty said. “I have complete faith in what they’re doing, and I think a lot of us being on the same page allows us to do some things out there as a group that you can’t always do.”

 

Belichick also highlighted how McCourty’s defensive value isn’t always quantifiable on the stat sheet.

 

“In addition to all of the plays that we see or that he’s in position to make, or tackles and things like that, there’s the communication aspect of making decisions for the entire defensive unit that are critical,” Belichick said. “He also does a great job of that. It’s a little too much to just put it all on stats.

 

“Look, interceptions are big plays and we love to see them and love to have them. There are other critical plays in the game, too, that don’t show up on the stat sheet, and we recognize those as well.”

 

– – –

The State of Florida is fighting to get the Robert Kraft video admitted in evidence.  The AP:

 

A judge made several errors when he threw out video evidence allegedly showing New England Patriots owner Robert Kraft twice paying for sex at a Florida massage parlor, prosecutors argued in a court document, keeping alive their case against one of the NFL’s most prominent personalities.

 

The state attorney general’s office filed its argument with the Fourth District Court of Appeal late Tuesday, just before a deadline that likely would have meant the dismissal of Kraft’s second-degree misdemeanor charge. It says that Palm Beach County Judge Leonard Hanser made several errors in his May ruling, and argues that even if he didn’t, he went too far by suppressing the recordings police secretly made in January at the Orchids of Asia Day Spa.

 

They said Hanser erred when he ruled that Jupiter police detectives and the judge who issued the warrant allowing the secret installation of cameras at the spa did not do enough to minimize the invasion of privacy of customers who received legal massages. They said even if justices agree with Hanser that more should have been done to protect the innocent, it shouldn’t protect Kraft, whom they say clearly paid for sex.

 

They also argued that even if the warrant was faulty, the detectives executed it in good faith, which courts have ruled is usually sufficient for evidence to be used in court, because doing otherwise allows criminal activity to go unpunished.

 

The prosecutors said Jupiter Police Department detectives lawfully obtained the warrant allowing them to secretly install cameras in the spa’s massage rooms and lobby, after spending days observing almost exclusively men entering the spa, obtaining trash that showed sex occurred there and interviewing customers after they left who admitted paying for sex.

 

During the five days of recording, prosecutors said 25 customers clearly paid for sex, 10 likely did but could not be proven because of poor lighting and four did not. Kraft was one of 25 men charged and some have accepted plea bargains. The owner and some employees are charged with felonies, with those cases also stalled because of similar rulings tossing the videos that are under appeal.

 

“That the spa was regularly used as a brothel is confirmed by the small percentage of recorded massages that ultimately appeared lawful,” Deputy Solicitor General Jeffrey DeSousa wrote.

 

If the appeal fails, prosecutors will likely have to drop their case against Kraft, a widower worth $6 billion whose Palm Beach mansion is across a bridge from the spa.

 

The DB thinks the video is clearly the “fruit of a poisoned tree” so to speak and should not be allowed – especially when balanced against the relatively minor violations of the law it revealed.

 

 

NEW YORK JETS

Today’s the day that QB SAM DARNOLD finds out about his spleen.  Rich Cimini of ESPN.com:

 

After two days of practice, New York Jets quarterback Sam Darnold declared himself ready to play after a bout with mononucleosis. At the same time, he acknowledged the potential danger of returning too soon.

 

“It’s a tough thing because you want to stay safe,” he said Thursday. “I want to make sure that I’m safe out there and I’m not going to die.”

 

While Darnold, his coaches and his teammates are optimistic about his chances of starting Sunday against the Philadelphia Eagles, the final call won’t be made until Friday. He will have an ultrasound and a blood test to determine if his spleen, previously enlarged, has returned to its normal size.

 

 

THIS AND THAT

 

 

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.

– – –

 

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.

– – –

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.

– – –

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.

– – –

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.”

– – –

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.