Locked On Patriots - Daily Podcast On The New England Patriots - Locked On Patriots - September 13, 2019: Superstitions and Legalities

Episode Date: September 13, 2019

On this Friday the 13th edition of Locked On Patriots, host Mike D’Abate is joined by Mark Schofield, who returns to the show to provide legal insight on Antonio Brown’s pending civil lawsuit, what it means for the Pats, and some Patriots/Dolphins talk, as Sunday’s game approaches.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

and hello to all you Foxborough faithful and welcome to it's your almost game day and the Friday the 13th edition of Lockdown Patriots your daily home for news notes analysis and the occasional opinion on your six-time Super Bowl champion the New England Patriots Lockdown Patriots as always is a part of the Locked On Podcast Network. I am your host, Mike DeBate, and I cover the Patriots for FullPressCoverage.com, which is where you can always find my written work, and you can also reach out to me on Twitter at MDABATEFPC, and be sure to follow the Locked On Patriots account on Twitter as well while you're at it, at LO underscore Patriots.

And yes, during my intro, I did mention that it was Friday the 13th. And while some of you listening might be superstitious, don't worry, I won't mention Camp Crystal Lake or Jason or Mrs. Voorhees. Well, I guess it's too late. I just did. But don't worry about that because I'm going to break the superstition today and welcome some good karma back to the show. And who better to do that than my predecessor, making his return today to Locked On Patriots. My friend Mark Schofield is back and is going to join me in just a minute today to do a

bit of Pat Sfinn's preview, but also to talk about the legal side of the Antonio Brown situation and what could keep him off the field. And as you know, in addition to being a quarterback expert, a top-notch journalist, Mark is also a very skilled attorney. So his wisdom and counsel today is going to be a true asset to the show. So stay tuned, folks. This will be a good one. But before I welcome Mark back to the hot seat today,

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Don't worry about dinner. Let dinner come to you with DoorDash. And right now, our listeners can get $5 off of their first $15 purchase or more when you download the DoorDash app and enter promo code LOCKEDON. That's $5 off your first order when you download the DoorDash app from the App Store. Enter promo code LOCKEDON. Don't forget, that's promo code LOCKEDON for $5 off your first order from DoorDash. Today is a homecoming of sorts for my guest this morning, and he honorably occupied this very chair for a little under,

maybe a little more than two years. But one month in, I'm still trying to get this right in his honor. But today, it's not only my honor to welcome him back for some Pat's Dolphins talk, but also to get his take on the Antonio Brown situation. And I think he's going to be able to bring some valuable insight to all of you. He's an amazing journalist for platforms such as Inside the Pylon, Big Blue View, and Pat's Pulpit of SB Nation, just to name a few. His new show, The Sko Show, is an amazing listen.

I'm a fan. I highly recommend it. It's my honor to be joined today by my good friend, Mark Schofield. Mark, welcome back. Thank you so much for joining me today. Mike, it's great to be back with you. I do love, I continue to love what you've done with the place. It looks fantastic here. The big chair, you've done some tweaks to it. It looks great. The show has been fantastic. I've been loving listening to it. You've had some great shows, some great guests, but it's great to be back with you. And I've been looking forward to this one. Excellent. And I have as well, and thank you very much for the compliments on the place. You know, I'm still settling in.

It's starting to feel like home here on Locked On. I made you a promise the last time that you were on the show, which was my first show here for Locked On, that the Toto poster would remain on the wall, as you can see. It's still here. It's never coming down. I bless the rains every day in your honor when I take the microphone. So I'm glad that you have any time, my friend. And, again, my pleasure to sit in this chair that you did occupy for so long and so gallantly is really an honor in and of itself.

So thank you for the compliments, and I shoot them right back to you. The stuff that you're doing has been amazing, and I'm not surprised at all, and I don't think anyone that's listened to you before would be. But as light as this lighthearted reunion should be, and it is in a lot of ways, but there was some serious news that developed in Foxborough this week, and I think every one of our listeners has heard by now about the legal troubles of Antonio Brown. And I know you have a background in law and a background also covering this team as well. So without forcing you to delve

into the real intricate complexities, if you could let our listeners know what type of legal steps and procedures does Antonio Brown face here in the coming months going forward, maybe in his career with the Patriots or possibly not? I think we'll get into that too. But what types of legal steps does he face now here? Well, it's important to sort of remember that what has been filed against him is a civil complaint. It's not a criminal action. And I think that's important to understand for a number of reasons. I'll get into that in a little bit. But at the outset, a civil lawsuit is a lawsuit seeking damages, in this case, monetary damages. Sometimes you can sue, you might see injunctive relief, like say you have a dispute with your

neighbor over a strip of land between your yards that you think is yours or he thinks is his. That sort of injunctive relief might just have a court decide whose land it actually is. But in this case, his former trainer is seeking monetary damages for three incidents of alleged sexual assault. And so what he can expect over the coming months as a civil suit proceeds is first and foremost, the discovery process. And the discovery process is twofold. There is first what we call sort of written discovery. That's when there will be a series of what we call interrogatories and requests for production of documents, sometimes requests for admissions of fact. And I handled, just so people understand, I was primarily a civil litigator. I handled medical malpractice, accident cases, things like that, construction defect cases, wrongful death cases. Those are

the types of things that I was doing. And in these sort of written discovery phases, you could give to the other side what we call interrogatories, which are questions, written questions that they have to answer and write. And things like, where were you on such and such a date? What was this interaction with the plaintiff, i.e. Ms. Taylor? Things like that. There would be requests for productions of documents, such as all documents related to your relationship with her, all documents related to your employment of her, and there could also be requests for admissions of fact. That's where you say to the other side, look, you have to either agree or deny with these following statements such as you employed her, you have to agree with that, you employed her as a trainer, you would have to agree with that. So

that's the first part, the sort of written discovery. Next is the sort of deposition phase, the verbal discovery process, where Antonio Brown would be brought into a conference room type scenario where he would have to sit across from this woman who has accused him of this, the plaintiff, and her attorney or attorneys, and answer questions under oath that can be used as evidence in the trial that can be used to support later on motions and so the first thing he's really going to face is this sort of two-step discovery process first the written part and then the deposition part and that's going to be critical that's the meat and potatoes of almost any civil case is this discovery process and that's what's coming to them first. Excellent, and that is great insight. And that kind of does lead me into my next question quite nicely, and that is, I wanted to get your take on a report that broke last night by Jeremy Fowler of ESPN, that reps for Antonio Brown and his accuser, Brittany Taylor, were actually in

discussions over the last couple of months, but agreed their communication would remain confidential until the filing of Taylor's civil sexual assault lawsuit. Now, this could be why the Patriots and even the Raiders would not have known about the matter unless there was a breach in that confidentiality of those discussions. My question to you, Mark, is could this be why the Pats are taking the wait-and-see approach here, as it's my understanding that players are not obligated to notify a team about a civil case. I mean, obviously criminal cases are different, but a civil case here, that they would not be required to disclose that before signing a free agent contract.

Yeah, I think that's exactly why the Patriots are sort of taking this wait-and-see approach. Because like you said, you know, civil proceedings and criminal proceedings are very different there is a much higher burden to even initiate a criminal proceeding you have to have a reasonable belief that a crime has taken place whereas a civil lawsuit the standards for even filing a civil suit are much lower you know i could file a civil suit right now against you mike you know alleged emotional distress or something crazy like that. I can file it and it's worth absolutely nothing, but you can still file it and you would file your appropriate motion to get it dismissed and it will be gone. But that can happen. And so the fact that representatives of Brown, representatives of Ms. Taylor were sort of in this preliminary discussion phase, you know, that doesn't mean that anything occurred. It was probably just, look, we're looking to do this and institute this suit.

Are you going to have any comment? Maybe you might want to make this go away early. So that's why this league sort of takes that approach where because of the difference in standards between criminal proceedings and civil proceedings, since we don't want to rush to judgment when the bar for filing a civil action or a civil complaint is so low, we're not going to institute and step in right away. Now, that being said, these allegations are serious. And if they do end up being proven true, the league and the patriots will have to take some sort of action. But then it's important to sort of remember the different standards of proof. I talked about this a bit on my show this week. We've all watched Law & Order. We've watched courtroom dramas on the criminal

side. We know that this sort of standard is beyond a reasonable doubt, which is basically there's no other thing that could have happened. You have to believe in your mind that the only possible answer to what happened in this instance was the defendant committed the crime. It's much different in a civil case. When I would try a civil case, when I would make my closing argument to the jury, if I was represented the plaintiff, I would walk up in front of them and I would say, ladies and gentlemen, the jury, you've just been instructed by the judge that you have to find that the defendant in this case committed the act he or she is accused of beyond a preponderance of the evidence. Now that's legalese. What does it

actually mean? And then I would write on the whiteboard the phrase more likely than not, i.e. it's probably more likely that it didn't happen. To really nail that down, I would write 51 slash 49. It's not 99% belief that it happened. It's just 51% belief. You have to think, okay, it probably happened. That's a very low standard. And ultimately, if this case does go to a trial or even throughout the proceedings, that's going to be the standard in the framework where these lawyers are working on. Is it more likely than not that these incidents did happen? It's a much lower standard, and that's what Brown is facing ultimately with regards to this lawsuit. Excellent. And I think insight in terms of exactly what he's facing in the legal ramifications, Mark, is really second to none here. And I thank you for letting not only me know, because I'm far from being a legal expert,, and it is something that needs to be dealt with both from a moral standpoint, a character standpoint, a legal standpoint, but

Patriots fans are indeed concerned about the action of what is going to happen on the field and when it comes to the team. Now, some have speculated, and you did allude to this earlier when you talked about he will need to face some sort of discipline. Some have speculated that Brown might be placed on the commissioner exempt list. Some have claimed that he could be released by the team. I guess there's verbiage within his contract that allows the team to nullify the incentive should he engage in any behavior that's considered detrimental to the team. If it's found that Brown is found liable for these actions, what types of contractual issues might they face if they do cut him loose?

I mean, I think if it's ultimately proven in a court of law, at least under this lower civil standard that he did commit these acts, that I think the team would have both under the contractual language and the player-team contract under the CBA, also the commissioner in the league as well in terms under the CBA. Also, the commissioner in the league as well, in terms of the CBA, can step in and terminate the contract, suspend him for an extended period of time. I think it would be well within their right to do that because it would sort of fall under the player conduct policy.

But that is a long way away, I think, because given, again, that it's a civil proceeding and civil proceedings take a long time, you have a right to a speedy trial by jury and criminal proceedings civil cases can drag on a long time when I was working as a lawyer I would sometimes have cases and went on two three four years sometimes longer you know courts get backed up dockets get filled things get extended things get continued things get rescheduled. And so the civil jury trial system is a slower moving machine. I think the league won't really step in until there's some sort of ultimate determination.

If there is some sort of confidential settlement agreement, which the parties may engage in, you know, Antonio Brown might think, look, I don't want to deal with all of this. I'm going to just pay some money to make this go away and enter into a confidential settlement agreement. I don't think the league would really step in and take any action because he wouldn't admit to any sort of guilt or any sort of finance effect. He would just say, look, nobody's admitted to anything. But rather than spending all this time and money during the legal system and dragging out a court case, let's just make this go away. Sometimes that happens. A lot of times, civil defendants, when I was representing doctors or nurses that were

sued for malpractice, they wouldn't admit to a finding of guilt or a finding of fault, but they would just say, look, I don't want to deal with this, or their insurance carrier didn't want to deal with it. They knew that they would have to spend hundreds of thousands of dollars in terms of trying the case and defending the case, make it go away for a little bit less and save some money in the process. Sometimes that does happen, and I don't think the league would step in then either. In terms of stepping in now and putting them, say, on the commissioner's exempt list, I don't think the league will do that as well. This is, again, a civil case.

When we saw the league sort of step in with, say, Ben Roethlisberger, there was an indictment. And again, with an indictment, there's a higher standard that the DA would have to put forth and convince a judge of or a grand jury of to step in and say, look, we find that there is reasonable belief and reasonable suspicion that a crime was committed here. That's a bit of a higher standard. It's not the ultimate beyond a reasonable doubt, but it's still a higher standard. In that case, the league might step in because that's what they did with Roethlisberger. Until something like that happens, I don't think the league steps in. I don't think the team takes action.

It could. I doubt it. The thing that might change the calculus is if the DA does sort of step in now and revisit this situation. There's been reported that maybe they will, maybe they won't. There was support that they were going to, but then that was an unrelated child endangerment issue that they were looking into and but then that was an unrelated child endangerment issue that they were looking into

and determined nothing had gone on there. That might be the only thing that sort of changed the calculus in the near term. I think the only way something happens is in the long term this does go to a trial or some sort of finding of fact that Brown did do this, and then the league probably would step in as would the team and they'd be within their right to do so.

Once again, that familiar voice you hear belongs to my friend Mark Schofield, who joins me today to speak a bit about Antonio Brown. And he has given some amazing legal insight into this situation and kind of helped to quell a lot of the questions I've had. And I hope he's done that with you as well. We will address the Pats game in Miami in just a moment. But before I do, I do have a question for you. Yes, you listening out there.

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code LOCKEDON to activate the offer. That's promo code LOCKEDON. Visit MyBookie.ag today. You play, you win, you get paid with MyBookie. Once again, my guest today is Mark Schofield, and we've been talking about the legal ramifications of this situation. Mark, one just final question on Brown. The rumblings are starting that Brown's playing status could be an issue for the Patriots

if they allow him on the field. Some are seeing that if they do allow him on the field this Sunday as a public indictment on their character and maybe even their approach to this case. In your opinion, should they play him? And because it really does look like they've been practicing him this week to do just that. He's out there. He saw a pretty prolific catch yesterday from practice, catching it from Tom Brady. So it looks like that's progressing in this situation.

In your opinion, should they play him? And should this be something that really comes back to the Patriots' character as an indictment? I think that's a little unfair, but I wanted to get your take on that. Well, first of all, Mike, we actually have some breaking news on this Antonio Brown situation. We're going to actually break some news here on the show because Dan Patrick on his show, this was just picked up by Roto-World, is reporting that Antonio Brown will not be placed on the commissioner's exempt list. And that's coming out. Roto-World just tweeted it out 10-13 this morning.

Yeah, actually, I'm just seeing that myself. Excellent. Yeah. And so there you go. A, some, I'm just seeing that myself. Excellent. Yeah, and so there you go. A, some breaking news here at Locked On Patriots, but B, I think that gives the Patriots some cover to play him this weekend because if the league had sort of stepped in and said that they were placing him

on the commissioner exemplist, obviously they couldn't. If the league had sort of let it linger, there might be more of a little groundswell in the direction of, look, you can't play this guy. This is ongoing.

You have to take some leadership here as an organization. But now with the league taking the affirmative step, if this report is true from Dan Patrick, that they're not going to place him on the commissioner's exemplar, that does give them some cover to go ahead and play him. I think that anything the Patriots do is going to be scrutinized. We know that from watching other things unfold, whether it's air pressure in footballs or any other situation with the New England Patriots,

there are going to be rumblings and murmurs from probably 31 other fan bases that they should have handled it differently. But the fact is, again, this is a civil lawsuit. Players face civil allegations all the time. Humans, individuals, everybody among us has probably faced or could potentially face a civil lawsuit. Because like I said, the standard is so low to file that action. Again, not belittling or diminishing in any way the allegations contained in the civil complaint, because if they are proven to be true in a court

of law, they are serious, they are disturbing disturbing and he should face ramifications as a result including being suspended for an extended period of time if not worse but at the same time he's entitled to his day in court as well and until there's sort of a determination of that fact the league's not going to step in and i don't think the patriots as well are entitled to sort of step in and say look you can't play there is one other thing to consider though i know we're going to talk about this game in a sense. Miami's not that good. And so if you want to sort of slow roll this situation and say, look, Antonio, you just

got in. You didn't practice a ton with Oakland anyway. Now you're learning this new system on the fly. I think we can handle Miami without you. We're going to leave you inactive for this first game. We'll bring you back for week three. That might be a sort of way to sort of quell the firestorm that's probably going to be there anyway with the Patriots. Just say, look, man, we'll see you in week three for the Jets.

Let's just slow play this. If they want to go that route, that's fine. But I don't think they're under any sort of pressure or obligation to step in, especially now with this news that the commissioner is not going to put him on the commissioner's exempt list. Yeah, and I'm glad that you mentioned the difference between the two in terms of what will happen if the Patriots do decide to kind of like, and I like the terminology that you used in slow rolling him into the Patriots offense. And in terms of the Patriots game planning, I think that's a wise approach. Again, it does look like they practiced him in terms of getting him ready, but there's always that chance, and Bill Belichick always has a couple of surprises up his sleeve on Sunday when that inactives list comes out. I think that's exactly when we'll find out. I don a lot of people are not really, you know, they're not focusing.

Oh, yeah, there actually is, believe it or not. And believe it or not, it's actually going to be in South Beach. The Patriots, quote-unquote, house of horrors. What better can we get than on Friday the 13th talking about a Patriots house of horrors? But they do play the Dolphins this weekend. They're coming off of a game in which Tom Brady threw for 341 yards and three touchdowns. The Dolphins are coming off of a game in which they were gashed for 623 yards, 265 on the ground, 378 in the air. In your opinion, is this a perfect storm for the Pats to quote-unquote

squish the fish, or could this be tougher than some expect with guys like Brian Flores and Chad O'Shea on the Miami coaching staff? You know, divisional games are always tough to begin with. There's a lot of familiarity between the organizations. You play each other twice a year, so you see a lot of each other. There's obviously an extra element of familiarity this season because, look, Chad O'Shea, Brian Flores, just like you said, Mike, those guys know what the Patriots want to do on both sides of the ball because they've had to practice against it. And, you know, sort of, you know, game plan practice stuff against what those guys were doing on both sides of the ball for the past couple of seasons.

So there's that level of familiarity there. There's also the fact that, look, this Ravens-Baltimore game, I think, has to be put in a bit of context in that Miami's game plan, Brian Fuller's game plan was we're going to make Lamar Jackson beat us from the pocket. We're going to stack the box. We want to take away the run game. Of course, they gave up, I think, a huge run on the first play from scrimmage, so they didn't do that well either. But that was their game plan. Jackson saw a lot of pressure packages, run blitzes, and a lot of man coverage in the

secondary. I don't think Flores is going to do that against Tom Brady. I think they're going to take a different approach and try to keep a lot of stuff in front of them. I think you might see a lot of cover four, a lot of quarters, a lot of two deep, try to make Tom Brady and the offense execute 12, 13, 14 play drives and sort of grind this game out and on the offensive side of the ball, try to really establish the run. But at the same time, you put all that together and yeah, there might be some familiarity. Yeah, there might be some tough sled of the times. You might see some drives that don't end in points. This Patriots offense is built, and Tom Brady is built, to execute on 12, 13,

14 play drives. He's got no problem doing that. He's a quarterback that has no problem taking what the defense gives him, and the floor is just going to give him check down routes and routes for the flat and routes underneath to his running backs and to guys like julian edelman tom brady's fine to do that and i don't think patriots fans are ready to conserve and tom brady executing that kind of game plan and this patriots defense is built to stop the run it's built to stop the pass it's built to stop everything it's deep at all three levels of the defense they're going to get kyle van nooyen back perhaps their best second level defender and a big part of the defense. They're going to get Kyle Van Nooyen back, perhaps their best second level defender and a big part of their defense last year. Obviously, there was Weipkamp and Barth last weekend. And so if they want to try to establish the run, I don't think they'll be

that successful. If they want to try to slow Tom Brady down and make him grind out drives, I don't think that's going to really stop them. So I do anticipate them winning this game rather handily. I don't think it's going to be 59-10, but it feels like one of those Patriots games that's a two-score lead, 14, maybe three, 17-point win that never really feels in doubt. It feels like they have it in control from the jump. Yeah, and I completely do agree with you on that. My final score prediction, which I've been teasing all week, folks, and I'm about to give it, my final score prediction on this one is 28-14. That may seem a little bit low in terms of what the Patriots are able to put up. It may seem a little high in terms of what the Dolphins are able to put up. But I think the Dolphins are going to be motivated to come out a little stronger this time around.

I think that we'll be able to get two scores on this team. But I think that the Patriots will end up doubling them up in the end. And Mark, I don't want to put you on the hot seat in terms of giving a final score prediction, but I do thank you for allowing us to hear your thoughts on the team and what's going to happen this Sunday. Because like we said, there is still a game to be played and you know Bill Belichick and the coaching staff are going to be doing everything to make sure that the team remains focused on that. Mark, I can't thank you enough for coming on today, for joining me again.

In a lot of ways, anyone that follows this show, follows me on social media, knows that I am obsessed with the movie The Godfather and Part 2. In a way, I kind of feel like Frank Santangeli this morning, welcoming back Michael Corleone to his own house, even though he's got his new furniture, he's got everything in there. In a lot of ways, even though I'm trying to make this house my own, in a lot of ways, it'll always be yours. So

thank you again, my friend. And it's always an honor to speak with you. Quickly, where can our listeners find you on social media if they don't know already, and continue to follow the amazing work that you've been doing? Well, Mike, thanks again so much for having me on. It was an honor to be back here. And like I said, look, you've done fantastic work already with Locked On Patriots. I love the way you've taken the show and made it your own, and I'm incredibly happy for you.

You've been doing such great work. If people want to follow along with the hijinks for me on Twitter, at Mark Schofield, I keep it nice and easy, just my name, at Mark Schofield. Write for places like Inside the Pylon, Pro Football Weekly, Matt Waldman's Rookie Scouting Portfolio, a couple of different SB Nation websites. I've got two different podcasts

over at SB Nation. We've got the Schofield Show, which is on Pat's Pulpit, three days a week. And then the QB Schofield Show is part of Bleeding Green Nation with Michael J. Kiss, where we talk all quarterback stuff with an eagle slant to that one. That comes out usually Wednesday or Thursday of each week. But again, easiest way to find me, at Mark Schofield on Twitter.

And everything the man does, folks, I recommend anything and everything. Follow it all, read it all, absorb it all, because it is truly some of the best that you'll find across any platform in any walk of life. Again, I thank Mark Schofield for joining me today. As for me, I will be back on Monday to recap the Sunday's Pat Spins matchup in South Beach, break it all down for you.

And as the week progresses, I will start to look ahead to the Pat's Week 3 matchup with the New York Jets in Foxborough. And I'll be speaking with some special guests along the way, so stay tuned for that. As always, make sure to join me each and every day on the Locked On Patriots podcast and subscribe to Locked On Patriots via your preferred podcast provider. Once again, I'm Mike DeBate.

Thanks again to Mark Schofield for his time and insight today. But most of all, I thank you all so much for listening today and all week long. Have a great weekend, everybody, and enjoy the game on Sunday.