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Browner files 2nd appeal, says he wasn't aware of missed drug tests

/ CBS Sports NFL Insider

Seahawks DB Brandon Browner has been suspended indefinitely but is appealing. (USATSI)

Seahawks DB Brandon Browner has been suspended indefinitely but is appealing. (USATSI)

While Seattle's Brandon Browner had his original appeal of a one-year suspension denied by the NFL Management Council on Wednesday, league sources said that Browner also filed an additional appeal, which has yet to be decided.

Browner's agent, Peter Schaffer, would not confirm that he had filed another appeal of the NFL/NFLPA substances of abuse policy, but Schaffer did say that if "administrative options" did not result in a vastly reduced sentence for his client then he will sue the league and seek aggressive compensation.

Browner contested his suspension based on the fact that he was advanced to Stage 3 of the league's testing program -- which includes steep penalties -- as a result of missed drug tests he was supposed to take during his four-plus years out of the NFL. Browner maintains he was unaware he was even eligible for continued testing by the league.

Browner says he never received correspondences related to NFL drug tests over six years ago, Schaffer said, and even when he did finally sign with Seattle after four years in the CFL, even then the Seahawks were unaware Browner had been advanced to Stage 3 due to his missed drug tests.

"This decision shows how skewed and screwed up the NFL appeals process is," Schaffer said. "One would think the NFL would hold itself to the most fundamental standards of due process and fairness and equity, and would place the mental health and recovery of its players above all else, but this decision is an absolute disgrace to all those worthy concepts."

While the league on Wednesday upheld its own decision to suspend Browner, who was found to have a small quantity of marijuana in his system during a recent test -- he is technically suspended "indefinitely" and can apply for reinstatement in a year -- sources said the latest appeal was filed to Jeff Pash, the NFL's chief legal counsel, who could make a decision in consultation with Commissioner Roger Goodell that could usurp what was handed down Wednesday.

Per the NFL/NFLPA drug policy, under the section of Other Appeals:

"Any player who has a grievance over any aspect of the Policy other than discipline, including but not limited to claims of disparate treatment, must present such grievance to the NFLPA (with a copy to the NFL Management Council) within five (5) days of when he knew or should have known of the grievance. The NFLPA will endeavor to resolve the grievance in consultation with the NFL Management Council. Thereafter, the NFLPA may, if it determines the circumstances warrant, present such grievance to the Commissioner for final resolution. Such appeal must be presented to the Commissioner no later than thirty (30) days after the player's presentment of the grievance to the NFLPA."

Browner filed his appeal with the league last week, sources said, and thus met the time frame noted in the drug policy. Schaffer has pointed to language within that very drug policy that seems to indicate that a player, based on a certain service time at the NFL level, is no longer subject to random drug testing once out of the league for a period of time, and, league sources said, Pash has yet to rule on the appeal before him.

Further complicating this issue is the fact the NFL's own media arm has been reporting on this case, at times erroneously. Originally the NFL Network reported that Browner's most recent suspension was for "performance-enhancing drugs," which was incorrect and Schaffer said also took issue with a more recent NFL Network report that stated the media entity had obtained proof that Browner had received past notification of his need to take NFL-mandated drug tests because they were sent to Browner's mother (Browner has contested, sources said, that in fact the address the NFL had for him back when he entered the league as an undrafted free agent was for an old girlfriend with whom he long ago lost contact). 

"This shows how out of touch the NFL is with its former players, especially its undrafted free agents," Schaffer said. "To sit there and say we sent a letter to his mother's address so therefore he got it -- are you kidding me?

"This guy just got cut. There's no proof he got any of this mail. When these guys get cut they go anywhere they can. They live in a friend's basement, or whatever. These are kids right out of college; they've never made any money. You go wherever you have to go. Come on, you're collecting unemployment at this point, and they said they sent a letter to his mom's house so he must have got it."

 When directly asked if the NFL Media reports would be a component of any lawsuit against the league, Schaffer said: "Absolutely, absolutely, absolutely. Yes it will." (NFL Media employees are, directly, employees of the league and its 32 owners, and the NFL's drug policy is mandated to be highly confidential and the leaking of this personal information, particularly in a less-than-factual manner, Schaffer believes, is in direct violation of the policy itself).

While Browner's legal team is preparing to file a federal suit against the NFL over the issue, Schaffer said that such paperwork would not be executed until "we've exhausted all administrative remedies."

"If we do not have a fair resolution to this, then it's a federal case," Schaffer said.

Schaffer also said he has serious reservations about whether the NFL's intent in these circumstances is to be as overtly punitive as possible, or to truly do whatever is possible to rehabilitate individuals within the substance abuse protocols. When should "missed tests" no longer matter, Schaffer asked, and how much onus should be on the league to ensure, say, that notices of drug screenings are received and signed for by the parties demanded to take part in testing?

If need be, Schaffer said he is more than prepared to explore all of this in a court of law, in a case he believes could have significant ramifications for a score of other current and former players who also were advanced through the drug program through a series of missed tests well after they had collected their last NFL paycheck.

"There is another entire issue to this, which is: Do they have a right to do anything to a payer who is not a part of league, not a part of the collective bargaining agreement?" Schaffer said. "And they say if they test, then they also give treatment -- I've never once seen that they gave Brandon any treatment while he was out of the league.

"If they want to do this, then it has to be a two-way street. Don't say a guy is in the program, because if you say you've got a program and an then you're not giving him any treatment at all, or helping the player deal with the problem, and then you expect the problems to just go away, that's so hypocritical it's embarrassing."

If Browner ends up suing the NFL, the damages sought will be significant. He was one of the top free agents primed to hit the market in March, when the signing period begins, and several teams were eyeing him as a big upgrade over their current cornerbacks. Were he to lose the opportunity to hit free agency -- and this is likely to be his last time to do so as an NFL player -- then he will seek heavy compensation for his losses, sources said.

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