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Browner could file a potent defamation lawsuit against the NFL

Browner Getty Images

Seahawks cornerback Brandon Browner currently faces a one-year suspension under the substance-abuse policy.  As he awaits a ruling on whether the suspension will stand, he has in his pocket some potentially strong legal claims.

Among the possible legal theories is a suit for defamation, based on the erroneous report that he faces a suspension for violating the league’s policy against performance-enhancing drugs.

Though quickly corrected, the report from the network the league owns stains Browner’s reputation by inaccurately painting him as a cheater.  The substance-abuse policy covers substances that don’t enhance performance; there’s no associated suggestion that the player was trying to cheat the rules.

Since the network is owned by the entity that knows the truth, it would be easy to satisfy the “actual malice” standard for public figures in defamation cases because the NFL, which published the report, actually knew that the report was false.

Three days later, the NFL continues to disseminate false information.  Earlier this morning, I fired up the NFL Mobile application on my Samsung Galaxy S4 for the first time since the weekend, and I received an alert that Browner faces a PED suspension.

While the actual damage to Browner’s reputation would be diminished by the reality that he was suspended in 2012 for violating the PED policy, the circumstances raise the specter of punitive damages:  Monday was the first day of Browner’s appeal hearing; late Monday afternoon, NFL Network made a blatantly false report about the policy Browner allegedly violated.

It could be argued that the false report flows at least in part from a sense of retaliation against Browner for fighting the suspension.  Of course, whether someone intended to spread false information about Browner depends on the identity of the source.  And it could be difficult for a reporter employed by the league to conceal the name of the person from the league who provided the information, especially if there’s a chance that someone from the league decided to use the league-owned media conglomerate to spread false information about a player who dared to exercise his right to appeal the effort to put him out of the NFL for at least a year.

In addition to the report being false, the report breached Browner’s confidentiality rights.  If that was a factor in the deal that resulted in a significantly reduced suspension for Broncos linebacker Von Miller, the breach of confidentiality coupled with the false information being disseminated by the group known as “NFL Media” should give Browner plenty of leverage to work out a deal that cuts if not eliminates entirely his proposed suspension.

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53 Responses to “Browner could file a potent defamation lawsuit against the NFL”
  1. thestrategyexpert says: Nov 28, 2013 11:24 AM

    Good, I’m down for anybody that can make progress in helping the NFL to learn a lesson.

  2. osiris33 says: Nov 28, 2013 11:26 AM

    The suspension will never happen. Browner will walk. The Seahawks will win the Super Bowl.

    Unless Bill Leavy works the game…

  3. cags777 says: Nov 28, 2013 11:29 AM

    NFL appears to have screwed up here. Glad Florio explained malice and defamation to the masses to understand what’s at stake and why Browner may walk.

  4. folkcrusader says: Nov 28, 2013 11:31 AM

    Your theories on this case are interesting Florio. I am a Seahawk fan, and from the little I have heard from BB he is a pretty straight shooter. I don’t know if we will ever know what happened in this case, but there sure is a lot of stink emanating from the league office.

  5. richc111 says: Nov 28, 2013 11:32 AM

    Sport is a funny business, things that are done would get most people fired in real businesses and maybe never work again. Here employes routinly bitch piss and moan about the league. It is good thing some of these guys are football players because they might get canned from any other job.

  6. melikefootball says: Nov 28, 2013 11:32 AM

    Surprised more players have not filed suits against the NFL, the way the league office suspends and then fines and after all that changes its decisions. Gödel locks in on certain punishments and then when backed in a corner by a player not afraid to stand up he backs down.

  7. dumplingsrbrown says: Nov 28, 2013 11:34 AM

    If he took something that is against the rules is it not cheating? How is his reputation as a “cheater” only tied to PED’s? Seems like a violation was still committed which in essence was against the policies of the league. And prior violations of the league policies don’t really do much to bolster his reputation.

  8. agc99 says: Nov 28, 2013 11:35 AM

    Sounds like another Ryan Braun (MLB cheater). Don’t take accountability and blame others for your actions.

  9. wadinmypants says: Nov 28, 2013 11:38 AM

    Seahawk players on PED’s? The entire Pete Carroll regime is on the juice. Look at their guns. Even their kicker could win a Mr. Universe contest. I’d bet if they tested for HGH Seattle couldn’t field a team.

  10. fumblenuts says: Nov 28, 2013 11:41 AM

    “In addition to the report being false, the report breached Browner’s confidentiality rights.”

    Don’t take the law into your own hands Browner, take them to court!

  11. osoviejo says: Nov 28, 2013 11:44 AM

    “If he took something that is against the rules is it not cheating?”

    Smoking weed doesn’t give you a performance advantage, that’s why.

    For that matter, expect at some point for Adderall to be removed from the PED policy to the substance-abuse policy. Adderall is a party drug and is no more performance-enhancing than cocaine–which is not under the PED policy. This move is already under consideration by the league.

  12. riderspantherssk says: Nov 28, 2013 11:47 AM

    So, we know for sure that what he tested positive for wasn’t PEDs? Because if it was, your whole theory here is a waste of time.

  13. doctorrustbelt says: Nov 28, 2013 11:47 AM

    Seattle is loaded with low character cheaters.

    Russell Wilson high character outshines the low character darkness surrounding that team.

    The grass is always greener
    Where the dogs are sh!tt!ng

  14. greenwhodat26 says: Nov 28, 2013 11:48 AM

    He may indeed have a “potent” case, but it doesn’t change the fact that he violated the league’s rules. Therefore, he Will be suspended no matter what.

  15. swu32733 says: Nov 28, 2013 11:50 AM

    I am a long time Seahawk fan who has been through many lean and miserable seasons. While it is fun to finally have a competitive team do we really want it like this? Another drug story every other day in the press. Seattle needs to get a grip. Many of us don’t want this to win.

  16. assuredmutualdestruction says: Nov 28, 2013 11:53 AM

    Who knows with this current Goodell regime? He seems to be very conscious of negative opinion of himself, maybe he caves if a lawsuit gets filed. And the NFL has a poor history of ever trying to prove their case when forced into court.

  17. wimpyburgers says: Nov 28, 2013 11:54 AM

    this could help to explain why the Hawks waved Perrish Cox….who BTW won’t talk about his release

  18. hendeeze says: Nov 28, 2013 11:56 AM

    Or maybe he could just stop taking drugs that his employers have disallowed.

  19. cj77camberon says: Nov 28, 2013 11:57 AM

    We really need to see if we the fans have an option of having Goodell removed. He is ruining our game.

  20. daegudave says: Nov 28, 2013 11:58 AM

    None of us know anything about what is really going on. Speculation is running rampant, and you hear everything from “Browner failed his third substance abuse test” to “he may have never even failed ONE test.” There is a lot to clear up about this, and before anyone gets on their high horse to pontificate about what Brandon Browner (or anyone in the NFL) has done, let’s just let the process work itself out. I do agree there should be some ramifications to Mr. Silver and the NFL for falsely posting that the offense was due to PED’s, as that immediately put in everyone’s mind a certain stereotype–and sometimes the headline of an article is all that people read.

  21. cornerstone2001 says: Nov 28, 2013 12:00 PM

    All the Shehawk fans making excuses for a cheating head coach and cheating players. The rules are the rules.

    Cheaters never prosper and the Seabirds will never win a Super Bowl….

    the only class guy in the organization is Russell Wilson

  22. justbust says: Nov 28, 2013 12:07 PM

    Osoveijo, I agree totally. Adderall aka prescription speed, increases concentration, idk it walks fence of performance enhancing, it is rightfully a banned performance enhancing substance. Steroids are performance enhancing and should be banned. Marijuana is LEGAL in WASHINGTON and COLORADO. The NFL would be smart to stay out of progressive American politics. IF marijuana is not PERFORMANCE ENHANCING and LEGAL , why are NFL policies not keeping up with the laws. If they are going to punish players for having marijuana in their system, the nfl needs to at the very least make an emergency amendment, so players earnings/ playing time is not affected in any manner.

  23. Matt B says: Nov 28, 2013 12:07 PM

    Osoviejo,

    Adderall is an amphetamine. It is “speed.” Which definitely is performance enhancing. It allows quicker reflexes, awareness and recovery from fatigue. That’s just some of what it does to people who don’t need it for add/ADHD.

  24. rufusporter says: Nov 28, 2013 12:12 PM

    Aldon Smith: Mulitiple DUI, drug, and gun charges.
    NFL: Come back when you’re ready.
    Brandon Browner: Fails drug test for smoking a little cannabis. Legal in the state in which he resides.
    NFL: Your career is over.

  25. thebirdofprey2 says: Nov 28, 2013 12:14 PM

    I read it when it happened. PFT actually didn’t print the story the way the NFL did. They had lead story, 8 games for PEDs which they adjusted after the damage was done. The trolls here are going to respond the same way they always do (clueless) but the general public first heard what they did from the NFL and that’s not acceptable.

    I am certain 100 % of the people here if they lost their job and their employer gave bad information to the reason on multiple shows, official website and other outlets every single person would hit them with a lawsuit. Mike Silver put his name on it.

  26. toybkshr says: Nov 28, 2013 12:14 PM

    Yes NFLN is owned by the league, but the defamation argument fails if the source of the erroneous info was someone other than the league, such as somebody associated with Seattle team, or local news media people with access to team players. ——————————————————————————————————-
    This is completely plausible as many of these “confidential” violation stories get started in the 1st place.

  27. justbust says: Nov 28, 2013 12:14 PM

    Ok, pretend it was the 1930s and alcohol prohibition just ended. Did players that drank alcohol that year after prohibition ended loose their job because of it? Idk ?

  28. 64post says: Nov 28, 2013 12:40 PM

    Fail a drug test at work and get fired or suspended, why is this any different? This is another case of a pro athlete thinking he is above the rules. Got caught, own it. People defending Browner: “just Marijuana” missing the point.

  29. thesportgenius says: Nov 28, 2013 12:47 PM

    Suing the league is not the best career move. BB will get “Al Davised” if he goes that route. 3 time loser…what character is left to defame?

  30. weareluckytohavemikeflorio says: Nov 28, 2013 1:13 PM

    interesting theory but whatever happened to being accountable for your actions?
    he FAILED a PED test previously.
    he FAILED a drug test recently.
    Instead of holding the NFL to some arbitrary standard why dont we hold the Player accountable for violating policies HIS union negotiated and agreed to?
    He knew what he was doing, not once but at least twice,yet he failed to modify his behavior.
    Im not a Roger G fan by any means and the NFL is screwing itself into the ground like a drill bit but if the player in question hadn’t violated the policy agreed to, it would all be a moot point.

  31. justbust says: Nov 28, 2013 1:13 PM

    64, this substance u call marijuana is no longer considered a drug in the state where he is employed . Voted buy the taxpayers, it’s time you re-think some things….

  32. hart6399 says: Nov 28, 2013 1:25 PM

    It’s amazing how these Seahawks fans are willing to take any loophole they can to defend the rotten stench coming from that locker room. Even if he “only smoked pot” it’s not legal in the NFL. He already cheated with PEDS so HE tarnished his image I guess Bill Leavy is controlling the vending machines and pez dispensers serving PEDS And marijuana to that cast of miscreants too? And I could care less if adderall is “allegedly” being removed from the list…..it’s on the list now and was when pete Carroll was making adderall smoothies in the locker room. It doesn’t help???? Why are they taking it ?

  33. gadgetdawg says: Nov 28, 2013 1:27 PM

    @justbust

    Unfortunately it can be considered a drug in the state he is employed. His union in the CBA agreed with the NFL on banning it.

    I have read about employers (for insurance purposes) that actually test for tobacco use these days. The employment contract can forbid this type of stuff as best I can tell. Just look at all the prescription Adderall suspensions we have seen recently if you need proof.

    Besides I doubt the NFL wanted all those players begging to join the Broncos simply so they could partake. That would be a serious competative advantage right there ;)

  34. adderal says: Nov 28, 2013 1:35 PM

    doesn’t seem like the best way to get another job in the NFL

  35. justbust says: Nov 28, 2013 1:38 PM

    Agree but did the union plan for these states to not just decriminalize pot but make it legal? How do you fail a drug test for something that is considered a drug anymore. Can NFL ban all alcoholic consumption outside of work ? Where is the line? Do NFL employment rules dictate state law or Should the law in WASHINGTON state dictate how the NFL rule is written ….

  36. FinFan68 says: Nov 28, 2013 1:50 PM

    Though quickly corrected, the report from the network the league owns stains Browner’s reputation by inaccurately painting him as a cheater.
    ~~~~~~~~~~~~~
    You cannot be serious about this one. They made an incorrect report and then, as you stated, quickly corrected it. How does that short-lived report “stain” his reputation or inaccurately paint him as a cheater? I don’t think that is possible since he has already served a four game suspension for taking PEDs which by definition would be cheating. This report didn’t stain his reputation; his own actions already did that.

  37. deep64blue says: Nov 28, 2013 1:58 PM

    So a player who has already served a PED suspension and has been found to breach the substance abuse program is going to argue his reputation has been damaged, good luck with that lol

  38. deep64blue says: Nov 28, 2013 1:59 PM

    ” Though quickly corrected, the report from the network the league owns stains Browner’s reputation by inaccurately painting him as a cheater.”

    Except that’s accurate. …..

  39. chicagobtech says: Nov 28, 2013 1:59 PM

    To the folks saying the NFL should lay off if he was smoking pot in his home state:

    It’s perfectly legal for me to drink alcohol in my home state. If I drink at work then I can expect discliplinary actions taken against me. If smoking pot is against company policy (hello CBA), then it’s against policy.

  40. jrebar88 says: Nov 28, 2013 2:09 PM

    Man whatever dude, how many of you PEDhawks have failed tests recently? Maybe you should stop taking banned substances. Its that simple. Unless you are Simple Jack.

  41. rajbais says: Nov 28, 2013 2:10 PM

    Incognito is better off doing that to the Dolphins.

    Face it. He just acted like a normal NFL player except he used a word that I too do not appreciate him using.

    Granted, it doesn’t make sense to do it because his case pertains to circumstances under the CBA, but I couldn’t blame him.

  42. trollhammer20 says: Nov 28, 2013 2:25 PM

    jrebar88 says: Nov 28, 2013 2:09 PM

    Man whatever dude, how many of you PEDhawks have failed tests recently? Maybe you should stop taking banned substances. Its that simple. Unless you are Simple Jack.
    ______________________________

    Since the end of last season, when Bruce Irvin tested positive, resulting in a four-game suspension at the beginning of this year, zero Seattle Seahawks have been suspended for violating the league’s policy on performance-enhancing drugs.

    Zero is a pretty low number. Even lower than your IQ. Not by much, but still…

  43. strongmackn says: Nov 28, 2013 2:37 PM

    The hypocrisy is thick. Not just in the league, but society as a whole.

    Donte stallworth killed someone while driving drunk. Pacman has assaulted several people. Big ben was accused of rape a couple times. Aldon smith has various felony infractions. Albert haynesworth has assaulted people on the field. Even team mate marshawn lynch has multiple dui issues and damaged property.

    I know the rape issue with ben is water under the bridge, and he probably wasnt guilty. The league didnt bat an eye with him.

    What im getting at is this… these people either killed or seriously harmed someone or their property. Sports and society lets them off with relatively little to no punishment or scrutiny.

    Marijuana on the other hand gets people fried by the system. Its time people wake up and realize that the reactions to situations like browners are a reflection of how ridiculous our society is.

    For crying out loud, beastiality is legal in over ten times the states that marijuana is decriminalized.

  44. haminator says: Nov 28, 2013 2:56 PM

    He IS a cheater. There’s no inaccuracy there. Remember last year?

  45. posmoo says: Nov 28, 2013 3:06 PM

    First off, that’s an awful analysis of actual malice, as it presupposes the people privy to the actual information where aware the NFL reporter was about to publish a story. The person who is responsible for publishing has to be guilty of acting recklessly or maliciously publishing. It is not enough that someone somewhere in the NFL corporation knew the truth while the reporter did not.

    Second, he’s already been suspended for PEDs, and or illegal drug use. It’s as if a convicted burglar who had also been popped for drug possession in the past tried to sue the local newspaper for erroneously publishing a a blurb about him getting picked up again for burglary instead of drug possession again. Browner is a text book definition of a libel-proof claimant.

  46. 12hawksfan1976 says: Nov 28, 2013 3:30 PM

    As a public figure, he’d need to show “actual malice,” which is highly unlikely here. He could sue but it’d be a waste of his time.

  47. seaeagle707 says: Nov 28, 2013 6:58 PM

    If BB allows the NFL to have its way unchallenged, his career goes into the toilet.

    If BB, challenges the NFL legally, they can make sure that his career will go into the toilet.

    May’s well take ‘em to court BB, get a pound of flesh for your trouble.

  48. lovethelions says: Nov 29, 2013 12:00 PM

    What I want to know…was he busted for smoking pot? That’s now legal in Washington and Colorado, so if the NFL specifically says you cannot smoke marijuana, then he should get suspended, but if the contract says you CANNOT USE ILLEGAL DRUGS, then he didn’t do anything wrong.

    I don’t smoke pot, but I do believe it’s time for States’ rights to start challenging the Feds. I’m not a Hawks fan, but I do like to see them play…great team this year!

    Go LIONS!!!

  49. lovethelions says: Nov 29, 2013 12:05 PM

    haminator says: Nov 28, 2013 2:56 PM

    He IS a cheater. There’s no inaccuracy there. Remember last year?

    _________________________________

    Let me guess…you’re a 49ers fan???

  50. the3rdpower says: Nov 29, 2013 3:17 PM

    This article is not about BB (who obviously violated rules and will be suspended regardless whether 1 year or 4-6 games) this is about the NFL and its handling of the situation.

    The NFL owns NFL Media. NFL Media serves as a crackpot of journalists who write whatever they want to write… and all along they are under the banner of the NFL. That is, in itself, a poorly constructed way of putting out information. Again, let’s just look at the facts here;

    * Brandon Browner was given a 1-year suspension from the NFL for substance abuse violation

    * NFL Media’s Mr. Silver released a story that Brandon Browner is suspended for PED use (prior to Brandon submitting his appeal)

    * Brandon Browner responded back in a Twitter feed that he wasn’t suspended for PED use

    * NFL Media’s Mr. Silver changed the reason to substance abuse violation

    * NFL Media’s Mr. Silver says the Seahawks, “are ready to move on from Brandon Browner and he won’t take another snap as a Seahawk” according to his sources

    This guy is an employee of the NFL. This is news coming out of the NFL but the Seahawks had already stated that they stand by their players. So much so that Thurmond and BB are still in the locker room of the Seahawks.

    Silver is a joke. The NFL’s Media arm operates like Fox News reporting on itself and using its “internal resources” to find out information before a team actually annouces anything. Huge conflict and serious pie on the face of the NFL.

  51. osoviejo says: Nov 29, 2013 5:48 PM

    “It allows quicker reflexes, awareness and recovery from fatigue.”

    So it’s coffee?

  52. seadawgs72 says: Nov 30, 2013 2:31 PM

    @thesportsgenius

    Al Davis was the 1st owner to sue the league & win. Hey, don’t let the facts get in the way of your argument “genius”. If the suspension stands he has nothing to lose anyway.

  53. jimmygraham2handslam says: Dec 1, 2013 9:57 PM

    osoviejo says:
    Nov 29, 2013 5:48 PM
    “It allows quicker reflexes, awareness and recovery from fatigue.”

    So it’s coffee?

    ————————

    Ummm no its Amphetamines. Coffee does not contain any amphetamines. Pretty simple.

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