How Antonio Brown's Countersuit Gamble Impacts His Chances of Returning to the NFL

Antonio Brown filed three counterclaims against his accuser, Britney Taylor, on Wednesday. If successful, he could expedite the NFL's review of his behavior and allow him to return to the league.

Kirby Lee-USA TODAY Sports

Antonio Brown’s legal strategy shifted on Wednesday when the seven-time Pro Bowl wide receiver filed three counterclaims against his accuser, Britney Taylor, in a Broward County (Florida) circuit court. Sports Illustrated has obtained the filing, which was first reported by ESPN. As detailed below, the filing is a calculated risk for the 31-year-old former Pittsburgh Steelers superstar, who remains in NFL limbo. If successful, the move could accelerate the NFL’s review of Brown’s discipline and—possibly—pave the way for him to return in the 2019 season.

The context of the litigation, Brown’s free agency and the possibility of Brown rejoining the New England Patriots

The legal battle between Brown and Taylor has taken a number of turns. It has also damaged Brown’s prospects for NFL employment.

Taylor, who previously trained Brown and has known him since they were classmates at Central Michigan University in the early 2010s, originally sued him on Sept. 10—a day after Brown had signed with the New England Patriots. Taylor’s complaint was filed in a federal court, the U.S. District Court for the Southern District of Florida. Last month Taylor’s attorneys, David Haas and Marshelle Brooks, withdrew the case from federal court. They then filed a very similar complaint in Broward County. Taylor accuses Brown of several acts of sexual misconduct, most notably an alleged incident in May 2018 where Taylor claims that Brown violently raped her.

By all known accounts, Taylor has not provided sworn testimony to corroborate her accusations. Both her federal and state complaints were authored and signed by her attorneys, not her. That approach is neither unusual nor suspicious. Plaintiffs customarily sue through their attorneys. A plaintiff, however, can file a “verified” complaint where they swear, under oath and at risk of being criminally charged with perjury, to the truthfulness of their attorneys’ assertions. Taylor did not do so. In the absence of sworn declarations or testimony, Brown can more effectively raise doubts about Taylor’s contentions. Further, it does not appear that law enforcement significantly investigated Taylor’s accusations.

Taylor met with NFL investigators on Sept. 16. The league took no action against Brown, whom the Patriots released four days later. Brown has remained a free agent since that time.

With more time on his hands, Brown has enrolled in online courses in hopes of completing his college degree. He has also used social media in erratic ways. Earlier this month he tweeted an obscenity-laden message at the NFL. In sharp contrast, on Tuesday, Brown tweeted and posted on Instagram an apology to Patriots owner Robert Kraft. Brown previously mocked the billionaire, who was charged earlier this year in Florida for solicitation. Patriots quarterback Tom Brady and wide receiver Julian Edelman were among those who “liked” Brown’s apology post to Kraft.

Brown met with NFL investigators last Thursday. The meeting reportedly lasted eight hours. The league has not disciplined Brown. However, rumors persist that if a team signs Brown, he would be placed on the commissioner’s exempt list. While on that list, Brown would be paid by his NFL team but not able to play—an unappealing arrangement for any team, particularly when that team could face criticism for signing such a controversial player.

Despite this unsettled situation, reports have surfaced that the Patriots could bring Brown back. According to former Patriots tight end and WEEI host Christian Fauria, the Patriots have held “discussions” about re-signing Brown. However, Jeff Howe of The Athletic reports the Patriots "will not be re-signing Brown", according to Howe's source.

While the 8-1 Patriots are tied with the San Francisco 49ers for the best record in the NFL, their offense has been inconsistent. The Patriots have also suffered injuries to their wide receiver corps, most recently an ankle sprain to Mohamed Sanu and a concussion to Phillip Dorsett. With the 8-2 Baltimore Ravens surging under Lamar Jackson, the Patriots might wish to add a dynamic player like Brown, who caught more than 100 passes every season from 2013 to 2018, to maintain their edge in the AFC.

Brown, meanwhile, has filed a salary grievance against the Patriots. As I explained in a recent The MMQB story, Brown is likely to win the grievance. The grievance, however, could be dropped if he and the Patriots work out a new contract.

Understanding Brown’s counterclaims and strategy

The timing of Brown apologizing to Kraft on Tuesday is notable given what happened the following day. On Wednesday, Brown’s attorney, Camille Blanton of the Florida law firm Billing, Cochran, Lyles, Mauro & Ramsey, answered Taylor’s complaint. She also counterclaimed Taylor on Brown’s behalf.

Brown recently hired Blanton, who is a seasoned and skilled litigator. The former Miami public defender has handled numerous trials. She has significant expertise in civil litigation and criminal defense.

As told through Blanton, Brown asserts that Taylor became hostile towards Brown in 2017 once he refused to invest $1,645,000 in a business venture. Brown contends it was less of a venture and more of a scheme to defraud him. Portions of those funds would have allegedly been used to buy property already owned by Taylor and her mother. Other parts would have helped to finance payments on a gym project that would later dissolve and address a tax lien filed against Taylor.

Brown maintains that despite a positive training relationship with Taylor, she became irate after his refusal to invest in her venture. She then sent him hostile texts. His texts to her were also incendiary.

To that point, the court filing includes printouts of purported text exchanges between Brown and Taylor in June 2017. In one very heated exchange, Brown and Taylor directed obscenities, among other types of insults, at each other. Within one text message, Taylor wrote, “Once again you offered a trainer position, you offered this fake girlfriend spot, you offered to fund the entire gym. YOU LIED TO ME AND MY PEOPLE.” This statement raises the possibility that Taylor held a grudge against Brown for his unwillingness to invest. Arguably, then, she had a motive to impugn Brown’s reputation.

Brown’s countersuit also details how in early 2018, Taylor asked him to sign a personal training agreement that she described as “standard.” A copy of the agreement is included as an exhibit to the complaint. The agreement contained mostly ordinary terms for a working relationship between a trainer and a client. Taylor, for instance, would design an exercise program for Brown, who pledged to work hard. Brown, who has 3.7 million followers on Instagram, also agreed to promote Taylor’s business on social media.

Yet the agreement also featured two unusual clauses:

• “Trainer will not be flirted at.”

• “Client will finance 12-month lease of new facility.”

As told by his complaint, Brown refused to sign because of the obligation to finance a 12-month lease for Taylor’s new gym.

The complaint goes on to insist that Taylor hatched a scheme involving “her friends, family, business associates, legal representatives and even her church members” to “extort, defraud, defame and harass Brown.” It also asserts that Taylor pursued, and welcomed, a sexual relationship with Brown in addition to her professional relationship with him. Along those lines, Brown’s complaint portrays Taylor as now offering an untrue and incomplete retelling of her former relationship with him.

Brown’s complaint also asserts that on March 8, 2019, his legal representative “executed a confidentiality agreement under duress.” This agreement allegedly “precludes [Brown] from discussing a number of relevant events that have since transpired — all of which relate to the civil conspiracy to extort, defraud, defame and harass Brown.” It’s unclear to what degree, or how, the agreement restricted Taylor in her ability to retell what she says happened. She filed a lawsuit six months later and met with NFL investigators shortly thereafter. Brown's complaint indicates that Taylor was able to meet with the NFL for 10 hours without agreeing to waive the terms of the confidentiality agreement. This suggests the agreement’s scope was focused on Taylor's actions in response to Brown--Brown claims she launched a "conspiracy to extort" him--which is a subject matter that Taylor might not have raised with the NFL. The presiding judge, Judge Michael Robinson, will at some point address the confidentiality agreement in the litigation. If he rules in Brown's favor on the agreement, Brown could add a claim of civil conspiracy against Taylor and others with whom she allegedly conspired.

Brown raises three counterclaims against Taylor. They are defamation, defamation per se, and tortious interference with multiple advantageous business relationships. Collectively they contend that Taylor knowingly lied to various people—including friends, family and NFL investigators—about Brown in hopes of damaging his reputation. Taylor’s accusations within her lawsuit are likely exempt from defamation since statements made in legal proceedings are privileged. However, that privilege does not extend to other communications, including with friends, family and the NFL.

Lastly, Blanton’s filing on Brown’s behalf answers Taylor’s claims against Brown. As expected, Brown categorically denies that he ever assaulted Taylor. Specifically, Brown “denies that he ever exerted force upon Plaintiff or placed her in fear of imminent peril.” Brown, through Blanton, also raises doubts about Taylor’s assertions given the lack of dates she provides for certain incidents. For instance, Brown “asks the Court to order [Taylor] to specifically plead the date that [Taylor] alleges [Brown] kissed her without her consent.” He also asks that Taylor “specifically plead the date that” that she alleges Brown “ejaculated on her without her consent.”

Brown’s litigation gamble is geared towards returning to the NFL and possibly the Patriots

By countersuing Taylor, Brown hopes to make the litigation a lot riskier and much more expensive for her. This could—in a most favorable outcome for Brown—make her more likely to drop her lawsuit or at least agree to a settlement that involves her retracting the claims she made to the NFL. In that scenario, the NFL would be less inclined to punish Brown and teams, including the Patriots, would feel more comfortable signing him.

Playing this idea out in a most favorable light to Brown, not only could Taylor lose her case against him, but he could prevail in his counterclaims against her. If the case goes to trial and Brown convinces a jury that he is telling the truth, he could, in theory, be awarded a seven- or even eight-figure judgment against Taylor. After all, the financial injury to Brown would be massive. He could argue that Taylor’s lawsuit damaged his relations with the Patriots, who have refused to pay him a $10 million signing bonus. The lawsuit also contributed to Nike’s decision to sever contractual ties with him.

Brown has also become radioactive to teams that might have interest in signing him, a point that his attorneys could use to help to establish many millions of dollars in damages. The NFL has taken no action against him yet various national media report that if any team signs Brown, he would be placed on the exempt list. Remember, placement on the exempt list does not require a criminal charge. It only requires Goodell believing that a player “may have” committed a prohibited act. A player can remain on the exempt list for a period of indefinite length. The stay goes on, in fact, until Goodell decides whether to suspend (without pay) or fine a player under Article 46 of the collective bargaining agreement. Yet no timetable requires whether and when Goodell decides to punish a player. In short, no team has an incentive to sign a player with a disciplinary cloud over him, particularly if Brown would be placed on the exempt list after signed—the team would then be paying him for not playing.

Brown suing Taylor could radically change this dynamic. He could use the litigation process to demand that Taylor express her accusations while under oath and thus at risk of perjury. Brown would hope this leads to a swift resolution of the case and a re-entry into the league.

But there are other ways Brown’s situation could play out, and they aren’t good for Brown.

First, there is legal risk to Brown in filing counterclaims against Taylor. He now opens the door to a wider scope of pretrial discovery that Taylor could use against him. Brown might have to answer a broader range of questions about his conduct and share more electronic documents, namely emails and texts, that reflect on his personal life and sexual activities. Such information, to the extent it became public, could hurt his standing with the NFL and particularly Goodell.

Second, even if Brown casts considerable doubt on Taylor’s claims, the NFL could nonetheless punish him on other grounds. As detailed by former Sports Illustrated writer Robert Klemko, Brown faces other allegations by other women. Brown also allegedly sent hostile and inflammatory texts to one of his accusers.

While Brown was not criminally charged for any of these issues, it’s notable that at least one team seemed to find them very problematic. The Patriots, if you recall, didn’t cut Brown after Taylor sued him. Nor did they cut him after Taylor met with the NFL. It was only after SI revealed that Brown sent those texts that the Patriots cut him. That timeline suggests it was the texts that was particularly problematic to the Patriots. To the extent that is correct, Brown gaining any sort of legal victory against Taylor would not alter the other problematic things he has done or accused of doing.

What does all this mean? Brown’s path back to the NFL and possibly the Patriots remains uncertain. But his counterclaims against Taylor are a gamble that he is willing to take.

Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.