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The curious case of Brandon Browner's suspension

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Seahawks corner Brandon Browner, a potential unrestricted free agent, is facing a one-year suspension for violating the NFL's substance-abuse policy, and the result of his appeal could pave the way for more widespread litigation against the league.

Browner was advanced to Stage 3 of the program for “failure to cooperate,” according to a source with knowledge of the situation, for missing a series of drug tests back in 2006 and 2007, when he was in fact out of the league. Sources say Browner claimed he never received any letters notifying him of the missed tests, and, was unaware that he was responsible to continue taking drug tests long after being released by the Broncos and through his time in CFL.

Browner was unaware of the requests for further tests, but it was those missed tests that advanced him deep into the program to the point where he was facing more lengthy suspensions. Browner faced a four-game suspension back in 2007 (he was released by Denver in July of 2006) but many of the letters and other communication were sent to an old address of a former girlfriend.

Browner ended up back in the NFL in January of 2011, unaware he was in an advance stage of the drug program, and, according to his official NFL player transaction page, there are no suspensions recorded from his time in Denver. The Seahawks did not know of his status in the program either, upon signing him, sources said, nor did any of the handful of teams who brought Browner in for tryouts prior to him signing in Seattle. Only in August of 2011 did Browner receive a letter from the league notifying him that he was in fact in Stage 3.

Browner was tested roughly 200 times while back in the league, but did not have a positive result until very recently, when he had a small amount of marijuana in his system, according to a source. However, had he not been escalated to Stage 3 for his missed tests when out of the NFL -- if he was in Stage 2, for instance -- two years of clean tests would have be enough to get him out of the program entirely.

Will Brandon Browner be suspended for anything? (USATSI)
Brandon Browner's suspension is tied to drug tests he missed when he was out of football. (USATSI)

After reviewing the NFL's drug policy, which is available to the public, there are questions as to how the “Continuing Participation” rules in the document would even apply to Browner, given his unique roster circumstances more than seven years ago when his status in the program was being determined as he was released by the Broncos. Browner never played a game for the Broncos after signing as an undrafted free agent in April of 2005, and was placed on IR in 2005 prior to the team cutting down to 65 players. He was then was activated to the roster in February of 2006, for offseason participation, and then waived that July.

According to the “Continued Participation” section of the NFL/NFLPA drug policy: “A player who enters the Intervention Stages will remain in the Intervention Stages until the player is dismissed or released in accordance with the terms set forth herein. All such players must continue to comply with the conditions of the Intervention Program. Notwithstanding the foregoing, (1) a player who is released and who has not been on a club roster for more than six consecutive regular or post season games (“Never-Rostered Player”) is not required to comply with the terms of his Treatment Plan, if any, or submit himself for Testing until he resigns with a club; and (2) a veteran who is not under contract with a club (“Non-Contract Veteran”) must comply with the conditions of the Intervention Program for a year after the expiration of his last contract or receipt by the Administrator of written notification of his retirement, whichever is sooner. After six months as a Non-Contract Veteran, testing shall cease unless the Medical Director or the Medical Advisor requests that testing be continued. After a veteran who is under
contract with a Club (“Contract Veteran”) or a Non-Contract Veteran notifies the Administrator of his retirement from football, he does not have to comply with the terms of his Treatment Plan.”



Browner's lawyers could argue that he should be considered a “Never-Rostered Player” since he was never on the Broncos roster as anything other than an IR player. And, even if considered a “Non-Contract Veteran,” sources said Browner never received any communications from the league seeking further testing, and according to sources, the NFL's Medical Director does not believe that six-month provision applied to Browner (and unemployed players) in these circumstances. That could be the crux of one of the many legal battles complicating this suspension.

Browner is fighting his one-year suspension vigorously and with his future earning potential as the top corner available in free agency greatly impacted by any suspension, is prepared to sue the league for its handling of how it notifies and handles a player's drug status once he is terminated. That could have potentially huge ramifications for any other players who have experienced a similar set of circumstances while out of the league and failing to miss tests they were unaware of. Many players might naturally assume that once out of the league, they would no longer be subject to testing from a past employer.

 
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