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Brown’s workout clause was a throw-in for his $2 million escalator


49ers coach Jim Harbaugh has said that he hopes the matter of cornerback Tarell Brown’s squandered $2 million escalator eventually will resolve itself in a way that allows everyone to laugh about it.

For now, the Niners may be laughing nervously.  (Or possibly in sinister fashion, with a “mwu” preceding the “hahaha.”)

Lost in the notion that Brown lost $2 million by not showing up for offseason workouts is the reality that, per a league source, Brown triggered the $2 million escalator by participating in more than 80 percent of the snaps in 2011 and 2012.

The 49ers had no comment regarding the details of Brown’s contract.

At the time Brown signed his current deal, no one expected Brown to become a starter.  He did, and he thrived.  And Brown unlocked the $2 million by participating in well over 80 percent of the snaps each year.

So the clause didn’t expressly hinge $2 million on Brown showing up for 2013 offseason workouts.  The key factors were playing time in 2011 and 2012.  Brown met them.

Granted, he didn’t show up for offseason workouts, which allowed the Niners to taketh away that which they had given.  Eth.

Against that background, what can the Niners do to allow everyone to laugh it all off later?  It’s hard to believe the 49ers didn’t know $2 million depended on Brown showing up for the offseason.  Some believe that the Niners specifically sat back and kept quiet, so that the $2 million escalator they didn’t expect to owe at the time the contract was signed would go away.

While Brown has legal rights against his former agent, Brian Overstreet, the NFLPA-required malpractice insurance policy provides only $1 million.  And it’s unlikely that Overstreet’s insurance carrier will simply hand the money over without litigation, which means that Brown will have to spend a chunk of the money on lawyers.

Overstreet may have other insurance or assets that could be targeted for his arguable negligence.  But Overstreet may not concede that he made a mistake.  Overstreet could say he told Brown that he needed to show up for the offseason program in order to get the money.

While Brown eventually could get the $2 million from Overstreet or his insurers, it’ll take stress, efforts, expenses, and most of all time.

That’s why the cleanest and easiest way to get Brown in a laughing mood will be for the 49ers to give him the money that primarily hinged on what Brown accomplished — being on the field for more than 80 percent of the snaps over the last two years.

Harbaugh already has said that a ‘”starting, top-end player” shouldn’t be earning the minimum (actually, Brown will earn $925,000).  The challenge becomes harmonizing Harbaugh’s public statements with the organization’s behind-the-scenes actions.

It’s easy to say Brown should have known about the workout clause, and that he should have shown up.  But it’s just as easy to say the 49ers should have known, too, and that they should have in all fairness reminded Brown that he had two million reasons to participate in voluntary workouts.

If they actually knew about the workout clause in the escalator, they definitely should have told him.

And now they definitely should pay him.

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27 Responses to “Brown’s workout clause was a throw-in for his $2 million escalator”
  1. skeebo80 says: Aug 5, 2013 2:49 PM


  2. folkcrusader says: Aug 5, 2013 2:50 PM

    It looks like a situation where the team looks very bad in the eyes of the player in question, as well as other players on the team.

    Bottom line for me if I was T Brown is that I am definitely NOT signing with the team next year after this. The kid has played well, he earned the money.

  3. sikoix says: Aug 5, 2013 2:51 PM

    Why are the 49ers obligated or expected to remind these guys? It’s a business — and that specific phrase is constantly echoed by players and coaches. Perhaps some blame is with the former agent, but I don’t see how this is a problem the 49ers need to be working towards resolving (not a 49ers fan or a fan of a “rival” team — pretty neutral inquiry).

  4. 49erstim says: Aug 5, 2013 2:53 PM

    I like TBrown….I really do…but the onus must be placed squarely on his agent. C’mon Mikey. How long did you spend in that field? I cannot believe you’ve taken the stance you have. The team negotiated with the agent. The agent MUST inform his client of what exactly was in the contract that he made him sign. It is not the teams responsibility.

  5. tjacks7 says: Aug 5, 2013 3:03 PM

    Read your contract, dummy.

  6. beavertonsteve says: Aug 5, 2013 3:04 PM

    I’m sure that if a player performed an action that would invalidate a portion of their contract they would immediately notify the team of their actions.

    No, wait. They would keep it to themselves and hope the team never found out.

  7. justintuckrule says: Aug 5, 2013 3:05 PM

    sikoix says:
    Aug 5, 2013 2:51 PM
    Why are the 49ers obligated or expected to remind these guys? It’s a business — and that specific phrase is constantly echoed by players and coaches. Perhaps some blame is with the former agent, but I don’t see how this is a problem the 49ers need to be working towards resolving (not a 49ers fan or a fan of a “rival” team — pretty neutral inquiry).
    Coaches remind these guys all the time in their own subliminal way that these voluntary practices really are mandatory. If Brown wasn’t due the $2M, they would have made a stink about him missing the first one. The fact they didn’t shows just how low rent these owners are (not just the 9ers….I hold these feelings toward my own team as well. How they handled Cruz was despicable.)

  8. jikkle49 says: Aug 5, 2013 3:07 PM

    The agent is to blame because he’s getting paid to know these types of things for his client.

    Part of the blame lies with Brown because if I’m a player I’m dropping a call to my agent after the end every season and double checking to see what I need to do to make sure I get my money in the upcoming one.

    When you agree to a contract or get a job the company/person you agree with is under the impression you know what you need to do to fulfill that contract and are responsible for it.

    I don’t oversleep and be late to work than blame my boss or company that they didn’t call me and wake me up.

  9. vegasdogg says: Aug 5, 2013 3:08 PM

    Whether or not he receives some money from the 49ers that they’re obviously not required to hand over, I do hope that his former agent no longer represents any player from any professional league.

    Now, why a player is not educated on all the finer points of his contract is subject to manipulation by lawyers and agents.

  10. circuscivics says: Aug 5, 2013 3:15 PM

    Classless organization.

  11. cletusvandam says: Aug 5, 2013 3:19 PM

    He probably should have read what he signed, instead he just took the money. How is this the 49ers problem?

  12. Moudabo says: Aug 5, 2013 3:28 PM

    The article states that ” And Brown unlocked the $2 million by participating in well over 80 percent of the snaps each year. ”

    To me, this indicates that Brown earned the bonus on the field, where it counted most. Who cares about football in shorts. Pay the man, he earned it !

  13. oliveyang says: Aug 5, 2013 3:38 PM

    Clearly the onus is on the player and the agent. If the 49ers knew and didn’t tell the player, it’s a pretty sleazy move. Wouldn’t they want a player to reach incentives then to reward the player for reaching said incentives. That’s kind of the whole point of them.

  14. aaroncurryisbust says: Aug 5, 2013 3:39 PM

    Dirty scum organization cheating him out of his deserved money.

  15. nickster31 says: Aug 5, 2013 3:41 PM

    Point 1 – If he would have been in the off season program, like he should have been, he would have gotten paid the money.

    Point 2 – He DID sign the contract, right? I have a lawyer to do contracts for me, and EVERY ONE, we go over, point by point of the contract so I understand it. If the agent told him when he signed it, then it is on him, NOT the agent.

    It is called personable responsibility. Players need more of that.

  16. justintuckrule says: Aug 5, 2013 3:44 PM

    When you agree to a contract or get a job the company/person you agree with is under the impression you know what you need to do to fulfill that contract and are responsible for it.
    Cuts both ways…..when you agree to a contract, the other side will normally let you know that you aren’t fulfilling properly (i.e. if a painter paints your house the wrong color).

    An essential contract term is always payment. If I perform, I expect to be paid. If I paint your house and don’t ask to you to pay me do you think you can lawfully avoid payment because it’s my responsibility to ask???

    Inherent in every contract is the mutual obligation of good faith. SF acted with bad faith here and it’s not even a question. If this were the 2nd string back-up long snapper who missed OTAs, Harbaugh would be whining about it being a voluntary practice but he expects 100% attendance as a clear shot at the long-snapper. It’s what Coughlin did with Nicks.

  17. justintuckrule says: Aug 5, 2013 3:50 PM

    I don’t oversleep and be late to work than blame my boss or company that they didn’t call me and wake me up.
    We all know that you’re making the Republican “Obama is turning us into a nanny state” argument. What you’re missing is that there is a LEGAL obligation on both parties to a contract to act in good faith and to deal fairly with one another. The law doesn’t reward a contract beneficiary to reap a windfall by sitting quiet on the sideline saying, ” neh-neh-neh-neh-neh-neh” which is what SF did. If it were any other player WITHOUT an OTA bonus who missed, Harbaugh would have been griping about it to the press about being upset with 99% attendance in direct shot at the OTA skipper. Where was that when Brown missed?

  18. pem34 says: Aug 5, 2013 3:52 PM

    If the coaches pressed him to attend voluntary workout programs and held the bonus over his head and he got hurt and never played again…then what would be the story?

    Would the NFLPA allow for instance a contract where a good player was signed for league minimum and given say a $10 million workout bonus to attend voluntary camp activities stand?

    His agent should have reminded him (and I like how it has never been clear exactly whether or not the agent did make it clear or whether this was tied to a contract re-negotiation or extension) but that does not mean the 49ers should pay him anyway.

    Imagine the line of players that came so close to achieving an escalator in their contract that would be lined up for payment if the 49ers did pay him.

  19. nyfootballgiants says: Aug 5, 2013 3:57 PM

    I’m not a niners fan by any stretch of the imagination. However, the player needs to know what the contract they signed states. It is not the team’s responsibility to remind him that he is risking $2 or $2 million by not attending voluntary workouts.

    Sucks to be Brown – but it’s nobody’s fault but his.

    The Niners shouldn’t pay him the $2 mill, because then they will be setting a precedent here….

  20. jpb12 says: Aug 5, 2013 3:59 PM

    Most guys show up for these workouts. Why didn’t he? He has an agent.

    Not the team’s job to babysit him

  21. jlinatl says: Aug 5, 2013 4:01 PM

    1. the player should know his pay plan
    2. the player should review that pay plan periodically with the agent.
    3. the team should not set a “I didn’t know so pay me anyway” precedent.
    4. the agent could just say he did review it OR maybe he DID review it and either the player didn’t know, didn’t remember or didn’t care.

  22. garyhd01 says: Aug 5, 2013 5:16 PM

    this makes the niners look like tight asses if they decide not to pay him the extra 2 mil I bet he would love nothing better than to sign in free agency for a team in the nfc west so he can punish the tight asses twice a year. pay him he earned it by his play

  23. thestrategyexpert says: Aug 5, 2013 5:51 PM

    Brown should just get a new agent and tell him it’s his job to solve the problem. And that can be solved by having the agent ask San Fran’s GM if he thinks it would be funny if Brown didn’t show up for Week 1 or ever again.

  24. alldonesmith says: Aug 5, 2013 7:57 PM

    Not a single detractor here has any evidence that the 49ers remembered this clause around workout time and intentionally withheld it. Players don’t earn game checks until they play in games, and salary “escalators” just make those game checks bigger. The 49ers have enough contract review to do at this time of year (draft and free agents) without having to proactively review everybody’s existing contract in case somebody needed babysitting. I would be shocked if any other team operates differently. The fact that this kind of thing is so rare across the NFL (I’ve never even heard of it happening before) is a testament to how badly this one individual and/or his agent neglected his financial interests.

    justintuckrule, I don’t know if you’re a lawyer but I am. And pre-emptively reminding your contract partner of the terms of the agreement you both signed is so outside the scope of good-faith contract execution requirements that any suggestion to the contrary is laughable. Especially when that party has their own paid, qualified agent for negotiation and fiduciary responsibility. Oh, and FYI, in the three years Harbaugh has been head coach I haven’t heard of a single member of the coaching staff or front office chiding a player for not attending voluntary workouts. Much less “whining.” While your coach may do that, ours doesn’t. So don’t pretend like he’s a hypocrite.

  25. bobnelsonjr says: Aug 5, 2013 8:11 PM

    What ever happened to reading a document before signing it?

    What ever happened to showing up for practice?

    What ever happened to taking responsibility for yourself?

    Why would a team want to sign an illiterate, lazy, and irresponsible player?

  26. alldonesmith says: Aug 5, 2013 8:30 PM

    This article and several well-voted-down commenters have suggested that Brown “earned” this escalator by playing the required snap percentage in previous seasons. While he did unlock a potential escalator, Brown didn’t “earn” jack of that $2 million until he met ALL the requirements of his contract. That’s why it’s called an “escalator.”

    The 49ers specifically negotiated for this clause of the contract. Obviously, it was important to them. And I have heard/read coaches from dozens of teams saying they think the team is better the more often players are around the facility practicing together. Who are any of you to say it wasn’t important, and that they should pay him anyway?

    If Brown wanted to make more money than he ended up with, without having to attend these workouts, he should have taken less total money without that provision. This is like painting 80% of a house and leaving, then coming back to your employer and saying “Hey I forgot to paint that last 20%, but I want the full amount anyway. Thanks.”

  27. forever9ers says: Aug 5, 2013 8:35 PM

    No excuses, if 2/3 of my pay check is tied to one single condition, I would definitely know about it.

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