CHAUDHRI: Antonio Brown termination raises human rights questions

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Antonio Brown’s contract with the Tampa Bay Buccaneers was terminated after he walked off the field during an NFL game on Jan. 6.

Brown threw his gloves and other gear into the crowd, waved at fans, and left his jersey on the field. He later claimed he walked off after being forced to play through an ankle injury.

In a statement posted to Twitter, Brown said: “Because of my commitment to the game I relented to pressure from my coach to play injured. Despite the pain, I suited up. The staff injected me with what I now know was a powerful and sometimes dangerous painkiller that the NFLPA has warned against using, and I gave it my all for the team.”

The Buccaneers deny Brown’s injury claims. The Buc’s coach Bruce Arians said in a press conference that Brown stormed off the field because, he claimed, he wasn’t getting the ball. The Buccaneers also claim that Brown was asked for updated medical documentation a few weeks ago but he declined to provide it.

This is not the first time the NFL has come under pressure with respect to the health of its players.

In a recent New York Times article, the publication claimed at least 315 former NFL players suffer from chronic traumatic encephalopathy (CTE).

CTE has been a troubling issue for the NFL for years. In fact, it came to light again last year after NFL player Phillip Adams shot and killed six people, then took his own life in April. It was revealed in December that he suffered from CTE.

Advocates have called on the NFL to do more to protect players from suffering life-altering disabilities.

There is no question that players being pushed to play through injury is a prevalent concern for all professional athletes. Like all employees, athletes are entitled to be accommodated with respect to current or ongoing disabilities.

While Antonio Brown may have a legitimate claim, his credibility has been impeached. His walk-off has been seen by some as an act of insubordination and as one act in a long line of similar incidents.

For example, Brown was suspended just weeks ago for providing fake documentation about his COVID-19 status. He joined the Bucs in October 2020 after not playing in the NFL for over 13 months. When he joined the team he was serving another eight game suspension for violation of the NFL’s personal conduct policy. Given this context, the Bucs likely feel confident that terminating Brown’s contract won’t attract much legal liability.

While Antonio Brown is not a role model advocate, he may have a good case against the Bucs. Employers are required to accommodate disabilities to the point of undue hardship. They have a positive obligation to make inquiries of an employee who is working with a disability. The bar is unequivocally high. Both parties already have acknowledged Brown had an ankle injury. Now Brown has to prove his injury had something to do with him being let go.

While the story continues to be played out in the courtroom of public opinion, Tampa Bay must be sure to come to any legal proceedings with clean hands. If Brown can substantiate that the termination of his contract had anything to do with his injury, he may very well be victorious.

Lawyer Sunira Chaudhri is a Partner at Workly Law.

Lawyer Sunira Chaudhri is a Partner at Workly Law. Supplied / Workly Law

On to this week’s questions:

Q. I have been working for the same company for approximately two years. I have a good relationship with my co-workers and, especially, my boss. Just before the holidays (and after I received my end of year bonus), I received a very stern written warning for poor performance. I was shocked to receive this as I was given no notice and, in fact, my last performance review went well. It turns out I was terminated at the beginning of January, and my termination letter references this warning letter right before the holidays. Is my employer allowed to do this?

A. Whenever an employee receives a letter of warning or performance review that they disagree with, it is critical to respond in writing to document your own side of the story. If you have not already done so you should directly address the warning letter and the inaccuracies contained within it. It is important to do your best to be objective. Sometimes, employers believe they must discipline employees prior to termination. This can give rise to bad faith damages, or create the foundation for a bad faith manner of dismissal claim. I suggest you get legal advice to discuss the warning letter in the context of your termination prior to signing off on any package you may have been presented with upon your termination.

Q. My employer has a manufacturing division and I have been very vocal with respect to physical distancing and the use of PPE. Of course, during the workday it can sometimes be difficult to maintain physical distance and wear a mask all the time, but people are much too casual about it. I have talked to the managers as well as HR when I have seen people failing to distance, sitting close together, and keeping their masks off. For the first time ever, I have received a bad performance review, including the allegation that I am “prone to distraction.” I feel this is only because I have been vocal about COVID safety in the workplace. Any advice would be appreciated.

A. First of all, it sounds like your concerns are legitimate. That said, many employees find it difficult to wear a mask for eight hours a day, and employers have had a difficult time enforcing many of the workplace guidelines recommended by the CDC and Occupational Health and Safety. Provided that your suggestions and attention to safety are reasonable, there should be no reason for you to be sanctioned or retaliated against. I would advise that you respond to the performance review in writing, (similar to my advice above) and point to evidence confirming your strong performance, that you have never previously received a bad performance review, and that you are concerned that this review may be in response to your advocacy on workplace safety. In the event that your performance review does lead to sanctioning or retaliation in the workplace, you can rely on your response to the performance review as evidence to help you.

Have a workplace issue? Maybe I can help. Email me at sunira@worklylaw.com and your question may be featured in a future article.

The contents of this column are for informational purposes only and are not legal advice.

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