Lack of Antonio Brown criminal probe limits NFL and heightens league's need to interview accuser

Charles Robinson
NFL columnist

The immediate future of Antonio Brown’s 2019 NFL season appears to be headed to a crossroads next week. It’s uncertain and completely league-policed.

The entry point for Brown’s judgement before the league’s investigative arm? Still undetermined.

The exit point? A complete unknown.

Arguably the only certainty now is the NFL would like to find some finite direction with Brown’s status as soon as possible. And that doesn’t appear to be available before next week. ESPN reported Friday that Brown would not be placed on the commissioner’s exempt list for now, putting him in position to possibly make his debut for the New England Patriots on Sunday against the Miami Dolphins. Patriots coach Bill Belichick would say only, “We’ll do what’s best for the team,” when asked on Friday whether Brown would play.

The lack of a criminal probe into this week’s rape and sexual assault allegations against Brown has left the NFL in the exceedingly difficult position of producing a home-grown investigation. There is no foundation provided by police reports. Authorities haven’t gathered interviews. And there is no prosecutor to call in hopes of determining whether circumstantial evidence (or any evidence at all) points to the likelihood of a crime having been committed.

In many ways, this makes the front end of Brown’s case one of the most difficult the league has ever dealt with. Not only are league investigators staring at a set of unsworn allegations in a civil lawsuit, the accompanying evidence (in the form of text messages) is thus far completely unverified. The witnesses in the lawsuit (both named and unnamed) have yet to be furnished in the case.

Antonio Brown has been practicing with the Patriots this week. (AP)

How past cases NFL ruled on differ from Brown’s

For the NFL, that makes an already inconsistent process even more vulnerable to pitfalls. Consider some other recent investigations:

  • In the probe into Kansas City Chiefs wideout Tyreek Hill, there was a threat recorded on audio and a child services investigation providing the NFL with traction to move forward in its process.

  • In the Reuben Foster domestic violence investigation, there was a criminal investigation and police statements that laid an initial road map.

  • Even in the Ezekiel Elliott domestic abuse case – which never featured charges against the Cowboys star – there was both a police investigation and a victim willing to cooperate with the league’s probe.

All of these probes turned on two factors: The number of cooperating witnesses in the cases and the evidence (or lack of it) that ultimately led NFL commissioner Roger Goodell to determine whether or not he believed a crime had occurred. In Hill’s case, his former fiancee refused to cooperate with the league’s investigation into child abuse allegations and Goodell ultimately wasn’t able to determine that Hill had engaged in a crime. In Foster’s probe, domestic battery charges were ultimately dropped by police, leaving the league to fine him two game checks for the argument that led to his initial arrest. In Elliott’s case, which was battled out in both arbitration and the federal court system, his suspension stemmed from a totality of incidents and Goodell’s personal determination that evidence pointed to domestic violence having occurred.

Next week’s interview with Brown accuser is critical

To say the least, the process of the league’s investigations and the final results produced have been controversial. And now Brown is heading into some of that same territory, only without the benefit of any criminal investigations to help make a determination. All of this is important because the NFL is grappling with two overarching questions:

What to make of the civil suit against Brown, and what does the league do with him as the litigation makes its way through federal court?

Due to the lack of a criminal investigation, this one is going to be facing a mountain of difficulties. Largely because the NFL is starting at ground zero in this probe, needing to clear one significant hurdle before it can get to the next. And in this one, no hurdle is more important than the one that is going to be attempted next week:

Getting an interview with Brown’s accuser, Britney Taylor, on the books with investigators as soon as possible.

Until that happens, the NFL doesn’t appear to have the traction or evidence it needs to make a definitive decision about placing Brown on the commissioner’s exempt list. Right now, the civil suit alone is an unsubstantiated allegation, largely because it is based on testimony that is unsworn, and thus, not given the weight of statements under the threat of perjury and potential prosecution.

One way or another, the NFL has to create some kind of investigative imprint to back up a decision to place Brown on the exempt list. And in the process of creating that imprint, the league could walk away with the opinion that there isn’t enough evidence to suggest a crime may have occurred. That would leave Brown where he already is – on the Patriots’ roster and preparing to play out the season while the civil case runs its course.

NFL commissioner Roger Goodell has wide ranging power to discipline players. (AP)

Will Roger Goodell expand use of exempt list?

Does Goodell have the latitude to put Brown on the exempt list regardless of the depth of a league investigation? Yes. Even in a civil case, the language governing the exempt list appears to grant Goodell that kind of power. There are almost no guidelines explaining what an investigation must have produced or how Goodell came to determine that a crime may have occurred in Brown’s case.

But Goodell would also arguably be creating a wildly reckless precedent if he were to proceed like that in the face of a civil suit with no criminal charges. To the point that it could potentially make any player facing any civil allegation subject to being put on the commissioner’s exempt list.

There is no indication the NFL wants to go down that path. Instead, it looks like it wants to kickstart this investigation the old-fashioned way: by talking to the woman who has levied this complaint against Brown, in an effort to hear the allegations firsthand and also seek any accompanying evidence.

If that sounds like the first step in what could end up being a long investigative process by the league, it’s because that’s precisely what this is. The lack of criminal charges has left the NFL entering its process with more work to do than ever before in a case. And needing the cooperation of basically all parties to sort through what remedies are available, appropriate and justified.

For Antonio Brown, the most uncertain of crossroads has arrived. Where this goes next is the definition of the past few months of Brown’s path.

Volatile. Unpredictable. And as difficult to understand as ever.

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