What Will the NFL Do with Antonio Brown?

Examining the legal situation facing Antonio Brown after a federal civil suit was filed against him

In the wake of Antonio Brown's departure from the Oakland Raiders under bizarre circumstances, his eventual landing in New England has been disrupted as well. A federal lawsuit was filed in the United States District Court for the Southern District of Florida on Tuesday, September 10th, against Brown for the claims of Rape, Battery, Intentional Infliction of Emotional Distress, False Imprisonment, and Invasion of Privacy. Obviously these are very serious allegations, so it is wise to understand some things about the situation before deciding what you'll do with Brown on your fantasy teams.

I am, without a doubt, concerned for the welfare of the victim in this case and her well-being going forward, but you are here for fantasy-related content so that's where we'll end up in this article. Please don't confuse the discussion of fantasy implications for a lack of attention to the seriousness of this matter.

I think it's best to take the case from the standpoint of the numerous questions likely to be asked when looking at the situation. Here are the most pressing concerns.

Why did they choose federal court?

This is fairly innocuous. The State and Federal courts have concurrent jurisdiction in these types of claims. It is likely only a venue choice made by Counsel to file where they feel most comfortable where they like the Judge, the Staff, and can get things done. The claims themselves are not federal.

How is this different from a criminal charge?

The main difference is the Burden of Proof in a civil case. In a criminal filing, the defendant has to be proven guilty “beyond a reasonable doubt”. This is the highest burden of proof that exists in the legal system because it involves the loss of liberty if found guilty. In a civil case, the remedy is not loss of liberty, but money. So, the burden shifts to “a preponderance of the evidence”. For our purposes, all you need to know is that the burden is much lower, and the laws governing civil and criminal claims are different as well. You need to look no further than the O.J. Simpson case where he was found Not Guilty in the criminal case while still being held civilly liable in the subsequent civil filing.

Why didn't the victim file criminal charges?

We don't know the answer to this one but be aware that she does not lose the right to do so. The statute of limitations on Rape is generally quite long, or non-existent, so she can bring those charges at any point should she choose to do so (assuming a willing Prosecutor and some evidence).

Isn't the timing of the filing of these claims suspect?

Perhaps. It does seem a bit coincidental that the suit was filed after Brown has been in the news constantly lately. However, there is ample evidence that the rate of false allegations for sex crimes is almost exactly the same as other types of crimes. That number is, by some estimates, as low as 2%, and some have it as high as 7%. Don't be fooled into thinking that this is automatically false because of the timing of the filing. One does not necessarily lead to the other. It could be an opportunistic moment to file while still being completely true. We won't know for a while and may never know especially if a settlement is reached under a confidentiality agreement.

Fantasy Football Implications

At this point, if you have Antonio Brown rostered on your teams you need to know what to do. Here is where I come down on this as a veteran of over 18 years as an attorney doing criminal work, with some civil experience as well.

The first thing to keep in mind is that civil cases like these move very slowly. Brown's side has time to answer the complaint, and once that happens it will move into the long processes of Discovery, depositions, and multiple settlement conferences. It is not uncommon for something like this to take years to settle or get to a Jury. This works in Brown's favor.

Adam Schefter has stated that neither the NFL nor the New England Patriots were aware of these potential claims and have therefore been somewhat blindsided. As a result, it's hard to imagine that either side will take immediate action. This does not mean, however, that as a Brown owner you are out of the woods.

The NFL is likely to immediately open an investigation into the incident and that means that *at any point in time* the axe could drop on Brown's season. There is an important divergence from the Tyreek Hill case that is imperative here. I speculated back in July that Hill's case could very well hinge on the fact that the NFL would obtain information from open sources like the police report and the caseworker's opinions about the case. It turns out that this was incorrect because the Judge issued a tight gag order on anything flowing out of the case to any outside parties. It worked very well and the NFL never got their hands on any information that was actionable.

In this situation, there are two big differences: the claim is civil not criminal, and there is no welfare of a three-year-old child present. This suggests to me that trying to gag the parties will be much tougher. It would be smart of Brown's team to immediately deny the claims in court, and then ask for such an order, but again, it would be harder to make the argument that it's necessary without the child being part of the equation. The likely result of the lack of any gag order in the case would leave the victim in this case as a willing participant in turning over information to the NFL. This makes it much harder on Brown than Hill.

As far as the New England Patriots are concerned, I'm not of the opinion that they will do anything to Brown unless the league forces their hand. Their statement on the matter is pretty clear in that regard. They reiterate that the league will be investigating and they won't be commenting until that investigation concludes. That makes it very unlikely that they'll do anything absent criminal charges or a league suspension.

The unfortunate part of the fantasy football side of this is that you are handcuffed with your Antonio Brown fantasy football ownership. In essence, you are already hemmed in because the world knows what is happening. If you try to trade him you won't get near the value he should command. If you hold on to him then you run the risk of losing him completely. I believe the right call is to hold, and hope he gets to play while this plays out.

My opinion is that it is likely Brown gets to play the remainder of this season while this process plays itself out. But there is certainly evidence from the past that the league won't hesitate to act if they believe a pattern of conduct is developing that they must address. Brown certainly falls into that category. The main points on each side of the ledger look like this:

Brown Will be Suspended:

  • The serious nature of the allegations compels the league to act, and act quickly
  • The league will be able to attain more documentation than in the Hill case

Brown Will Not be Suspended:

  • The Patriots are unlikely to suspend Brown prior to any legal proceedings being concluded, that would likely have to come from the league
  • The gap between the incident and the filing is long enough that there is no urgency from the league to act quickly to protect the victim
  • There are no criminal charges
  • Flow of civil cases is slow and likely to take months to develop
  • The league and the team had no prior knowledge so will start their investigation from scratch on September 11th in NFL Week 2
  • This is a very serious case and the need to get it right is very important – knee jerk reactions are not what is called for here

I believe that the second category has a larger chance of occurring (about 65%) than the first one. It certainly isn't a lock though, and you should operate under the assumption that the suspension could hit any day without warning. There are two major "X-factors" that could render all of this analysis moot. If criminal charges are filed (meaning probable cause was found for a felony indictment) at any point that would ratchet up the pressure on the league and likely mean that Brown would be suspended. The second factor is the NFL's motivation to conclude their investigation. If they believe the situation is serious enough to move quickly then it is possible they'll have their handle on things much quicker than the civil case. Quick action is still possible, especially if the NFL believes it's in their best interests once they begin to unravel the evidence in front of them.

At this point, the best play for your fantasy team is to hold Brown, try and recoup some value hoping the investigation drags, and then try to deal him if you can get a decent offer. Otherwise, it is a far better bet to simply hold and see if you can get some elite production from his placement on a top-notch offense while the case develops. In the end, you could be rewarded by the case settling, Brown being found not guilty, or the NFL deciding to wait until after the case finishes to take action. All are good results for your fantasy squad. Trading or releasing him now is a sub-optimal move.