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A little over two weeks ago, the New England Patriots inexplicably dug themselves a financial hole by agreeing to give Antonio Brown a $9 million signing bonus. Now team owner Robert Kraft must pay his way out of it.

That’s the consensus of five league sources who spoke to Yahoo Sports this week — each familiar with Brown’s now-voided Patriots deal and all having extensive experience with the overlap between NFL contracts and the league’s collective-bargaining agreement. The group universally expressed the belief that New England’s payout to Brown will likely happen deep into the 2020 calendar, after an exhaustive arbitration grievance that could ultimately reveal what Brown and his agents knew about a threatened sexual assault civil lawsuit prior to signing with the Patriots.

One key takeaway was heavily underscored by the group: The Patriots cut Brown before he triggered any signing bonus void as described in the CBA. And that will end up being the foundational and winning point of a forthcoming grievance from Brown and the NFL Players Association.

As one source put it, “[New England] fighting to keep that signing bonus now is either a gross misunderstanding of [the CBA’s] rules on voiding signing bonuses or it’s just out of spite. I can’t believe they don’t understand the signing bonus voids in the CBA. There’s just no way. This is just spitefulness. They’re fighting [Brown] completely out of the anger and embarrassment in ownership.”

Why Patriots will be forced to pay Brown’s signing bonus

Where it concerns Brown’s $9 million signing bonus, the fight appears to be heading to an argument of one clause in the CBA. Specifically, Article 4 and section 9, which lays the foundation of the forfeitable breach of money within a contract. It states:

(a) Forfeitable Breach. Any player who (i) willfully fails to report, practice or play with the result that the player’s ability to fully participate and contribute to the team is substantially undermined (for example, without limitation, holding out or leaving the squad absent a showing of extreme personal hardship); or (ii) is unavailable to the team due to conduct by him that results in his incarceration; or (iii) is unavailable to the team due to a nonfootball injury that resulted from a material breach of Paragraph 3 of his NFL Player Contract; or (iv) voluntarily retires …

In layman’s terms, the CBA language is stating that Brown could have forfeited his signing bonus if he did one of four things:

  • Refused to report, practice or play and thus inhibited his ability to help the team.
  • Became unavailable due to behavior that resulted in his incarceration.
  • Became unavailable due to what his player contract designated as a non-football injury.
  • Voluntarily retired.

The problem for the Patriots is Brown didn’t fit under any of those qualifiers prior to his release, which in the eyes of the union (and the other league sources familiar with his deal) equates to the Patriots still being on the hook for his signing bonus. Therein lies the only kicker that matters: Regardless of what the Patriots put into their contract with Brown when it comes to voiding his signing bonus, arbitrators have consistently ruled that CBA language supersedes team language when it comes to player contracts. And the CBA says Brown had to have fallen into one of the four aforementioned categories to lose his signing bonus. No matter what the Patriots inserted into their deal with Brown, the CBA’s four designations were all that would matter when it came to the signing bonus.

Interestingly, sources who spoke with Yahoo say New England had one arguable contract “out” when it came to Brown and surrendered it: that he and his representation didn’t make the team aware of his civil suit. Essentially, the Patriots could have used that withholding of information as a means to void his entire deal. But New England negated any claim to that by playing Brown against the Miami Dolphins after the lawsuit was filed in federal court.

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“If they had cut [Brown] as soon as they became aware of the civil suit, then there’s the argument of the [withholding] breach undermining the entire agreement,” one source told Yahoo Sports. “But they kept him on the roster after that lawsuit was filed. They played him in a game. They even paid him checks for [two weeks of] work. If the civil suit was a true dealbreaker, the Patriots could have shown it by breaking the deal. Their actions speak to their intent and their intent was shown when they continued to pay him after the civil suit.”

Another source pinned the onus on the Patriots for not doing a deal containing weekly protections.

“They did the contract structure, knowing how difficult [the CBA] makes it to withhold or claw back a signing bonus,” the source said. “If they wanted more protection, that was their option when they negotiated the deal. They could have protected themselves by making the deal a series of per-game 53-man roster bonuses. The signing bonus route is an instantly recognized chunk of earned money as soon as he signs. It’s the most player-friendly route you can take.”

The Patriots did a bad contract with Brown

Did New England do a bad deal in the team’s rush to get Brown under contract? And if it was willing to give Brown so much money in a signing bonus that would be difficult to negate, did it do enough background work to warrant such confidence?

To the former, yes, it’s clear now that New England did a bad contract structure given what has transpired and the lack of protection that now exists. Whether or not the Patriots did enough homework is a matter of argument, although the team didn’t do enough to protect itself from the possibility that Brown and his agents might not be telling the team everything it needed to know.

Why either of those things materialized — a poor contract structure and a lack of knowledge about Brown’s problems — will remain a matter of argument. Some of it likely has to do with Brown’s talent making him a pursued commodity from the moment he was released by the Oakland Raiders. It’s very possible the Patriots moved too fast and offered too friendly a contract out of fear of losing Brown.

Said one prominent agent who has negotiated multiple deals with New England: “They’re so ultra-competitive they were afraid they were going to lose out to another team if they didn’t give them that structure. And they figured they could control the kid — which they probably could. What they didn’t see coming was that other [stuff] and that’s what drove [them] crazy.”

A few months from now, it’s also what will cost the Patriots because there’s no denying that part of this mess: New England dug a hole when it failed to properly protect itself. Now it’s going to have to pay that $9 million signing bonus as it climbs out. Whether Bob Kraft likes it or not.

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September 28, 2019 at 12:54AM