Photo Credit: NYPost
AB is an interesting character to say the least. But, while he is entertaining the masses with his surprising and often irrational conduct, is he also violating the law by dispersing private conversations via social media?
Getting frostbite from cryotherapy. Riding a hot air balloon into training camp. Refusing to retire his ten-year-old helmet. Threatening retirement. Sneaking old helmet into practice after painting it with a Raiders-like silver and black design. Missing practices and racking up fines. Posting a picture of GM Mayock’s letter issuing fines to Twitter. Screaming at Mayock after practice. Apologizing emotionally to teammates. Posting a YouTube video of his phone call with Coach Gruden. Asking for release from the Raiders via an Instagram post. No, you can’t make this stuff up. Such is the true story of AB’s tumultuous tenure with the Raiders.
Watching AB spiral is amusing to say the least, but while he continues to inflate his own ego, he may be behaving in ways that violate the law. Late on Friday evening when the world thought we may get twenty-four hours free from Brown’s drama (note: he had just issued his emotional apology to teammates a few hours prior), but that simply didn’t happen. In a bizarre move to “control his own narrative,” AB posted his recorded conversation with Gruden to YouTube and Instagram.
In an attempt to discern Brown’s commitment to the team, Gruden asked Brown what the rest of the world was wondering, “what the hell’s going on, man?” Everyone most likely knows the gist of the rest of the conversation since Brown decided to make it public knowledge. AB likes to be the center of attention. He likes to “explain himself” on social media. But clearly, he doesn’t always think before doing so because this unwise behavior may have violated California law regarding recorded phone calls and conversations.
Eleven states (including California) have “two party consent” laws. California’s wiretapping law (See Cal. Penal Code §632) criminalizes recording or “eavesdrop[ping] on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation.” In Flanagan v. Flanagan, the California Supreme Court held that the statute applies to all “confidential communications” in which one of the parties has an objectively reasonable expectation that the conversation is private.
Given the context of the conversation, its likely Gruden didn’t consent to Brown blasting the conversation out on various social media outlets. California Penal Code §637.2 provides that violation of this law can subject an individual to criminal prosecution as well as expose them to civil lawsuit if the violation of the law injures another party.
Will Gruden sue Brown under this statute? Probably not. Given the current controversy and the dark cloud that seems to affect everything AB touches, it’s probably best for the Raiders to wash their hands clean of the whole mess. This doesn’t mean that Gruden wouldn’t have a decent argument under California law.
Now, AB is a Patriot and we all know that controversy is commonplace in New England. Brown’s personality among the likes of Brady and Edelman will be interesting to watch play out. No matter what, AB should take at least one piece of advice from his call with Gruden: “just play football.”
3L at University at Buffalo School of Law. If I am not in class or studying, I am outdoors with my beloved pit bull pups or cheering on the Buffalo Bills and Detroit Pistons with my husband.