The NFL officially has placed Giants kicker Josh Brown on the Reserve/Commissioner Exempt list based on information that came to light earlier this week. The text of the letter from senior V.P. of labor policy and league affairs Adolpho Birch to Brown makes it clear that Brown is now being investigated for “other incidents of abuse separate from the May 22, 2015 incident for which you were disciplined under the Personal Conduct Policy.”
The move, which essentially suspends Brown with pay pending the outcome of the investigation, is a precursor to an eventual, inevitable suspension of Brown without pay for Personal Conduct Policy violation(s) arising from the conduct explained in the materials released by the King County (Washington) Sheriff following the official conclusion of the investigation of the May 2015 incident.
And so Brown will be prevented from working indefinitely (while getting paid) before eventually absorbing another suspension for, as he possibly will argue, conduct about which the league knew or should have known. Brown’s case could be bolstered by Thursday’s comments from Giants co-owner John Mara, who said a day after the release of materials reflecting other potential incidents of abuse that Brown had been honest with the team and that the Giants knew Brown had engaged in domestic violence. Thus, Brown can -- and should -- argue that he already has been punished once for the conduct for which he is now on the Commissioner-Exempt list.
Whether that argument has any success remains to be seen. Armed with recent federal appeals court rulings from cases against Tom Brady and Adrian Peterson, the league has the blueprint for doing whatever it wants to do to Brown. As long as Commissioner Roger Goodell doesn’t delegate the internal appeals process to a truly neutral arbitrator (like he did when the league tried to suspend Ray Rice a second time for allegedly lying to the league during his original internal appeals process), the league likely will prevail in its effort to suspend Josh Brown a second time -- absent any smoking-gun admissions from the league or the team that Brown’s initial suspension was intended to be comprehensive. (Mara’s comments already could be that smoking gun, frankly.)
No matter how wrong and despicable his conduct may have been, Brown has rights. By bungling the case in the first instance via the failure to acquire information needed to reach an informed decision and/or an inexplicable refusal to wait for the investigation to end before imposing discipline, the league has put the union and anyone interested in the fair treatment of all players in the unenviable task of having to defend Brown.
Maybe that’s how the league decided to handle the case if/when the truth ever came out. Instead of admitting that they should have known more before suspending Brown for only one game, the league can now deflect criticism by pivoting back toward the man many will agree is the real culprit for more discipline.
Regardless of whether it’s supposed to work that way (and it’s not), the league and the Giants will now try to avoid any and all scrutiny or criticism of its flawed investigation by doing to Brown now what should have been done months ago.
Specifically, Brown should have been placed on the Commissioner’s-Exempt list pending the outcome of the investigation in King’s County, which would have ensured that the investigation didn’t fall into a black hole for more than a year, and which in turn would have resulted in the information that was released Wednesday coming to light many months ago.