The NFL continues to send signals that the newest Patriots receiver could land quickly on the Commissioner-Exempt list. Some interpret the language of the Personal Conduct Policy to mean that, in the absence of criminal charges, Brown can’t be placed on paid leave until the league fully investigates the allegations made against him in a civil suit.
Here’s the language of the policy that allows the Commissioner to utilize paid leave absent a criminal prosecution: “[W]hen an investigation leads the Commissioner to believe that a player may have violated this Policy by committing [sexual assault or rape], he may act where the circumstances and evidence warrant doing so. This decision will not reflect a finding of guilt or innocence and will not be guided by the same legal standards and considerations that would apply in a criminal trial.”
Nothing in the policy requires the investigation to be completed. Indeed, nothing in the policy requires the investigation to reach any specific point. There simply must be “an investigation” that “leads the Commissioner to believe” that Brown “may have violated” the policy by engaging in the conduct of which he stands accused, with the key considerations being the “circumstances and evidence.”
Through it all, the Commissioner doesn’t have to believe a violation actually occurred. He needs to conclude only that a violation “may” have occurred.
The word “circumstances” surely wasn’t an accidental inclusion. With the entire Personal Conduct Policy a P.R. tool aimed at taking formal action against employees who engage in behavior away from work that reflect badly on the employer, the question of how bad the behavior makes the employer look becomes relevant. If Brown “may have violated” the policy by committing sexual assault or rape, the NFL easily could conclude based on a limited investigation — without even speaking directly to the accuser — that Brown should not play until the full process concludes.
Ultimately, the NFL is going to do whatever the NFL wants to do. The fact that the NFL stubbornly refuses to regard paid leave as discipline makes it even easier to justify putting Brown on the sidelines. The absence of any meaningful appeal rights also will make it easier for the NFL to disregard the precedent it would be setting and to cling to the far more established habit of doing whatever it wants to do in any given case.
And if all else fails, don’t rule out a backroom deal between the Commissioner and the Patriots to keep Brown off the field for Sunday, based on the notion that he’s not ready to play. That would be the simplest solution until Brown’s accuser can be interviewed next week, and it would mesh with the manner in which the Patriots handled receiver Josh Gordon after his abrupt arrival a year ago.
However it plays out, it will be very easy for the NFL to keep Brown from playing. The only question at this point is whether the NFL wants to keep him from playing.