By Jeff Birren, Senior Writer
The Seattle Seahawks drafted Michigan State defensive lineman Malik McDowell, early in the second round of the 2017 NFL annual player draft. On May 30, 2017 McDowell signed his NFL rookie contract that, among other terms, contained a signing bonus addendum that required Seattle to pay McDowell $2,398,476 by July 14, 2017. This was quite a reward in light of the end of McDowell’s last season in college.
McDowell played defensive tackle at Michigan State with varying degrees of success. A true freshman in 2014, he made All Big Ten and All-American freshmen teams. The following year he was either first or second team All Big Ten. As a junior, McDowell was tall and lean at 6’6″ and weighing less than 300 pounds. CCS and Sports Illustrated named McDowell second-team All-American, although he missed three games due to an ankle injury. Pro scouts questioned his commitment, or lack thereof, for questionably sitting out those three games. One media outlet later reported: “McDowell appeared at times during the year to be lacking effort” (DetroitNews.com, “Seahawks waive former MSU star Malik McDonald,” (Seahawkswaive” 7-26-18).
A Seattle draft blog was harsher: “The thing is, he doesn’t seem to make many plays (and the stat line backs that up–1.5 sacks, 7 TFL’s in 2016). He’s reckless. He’s too manic, too out of control. His gap discipline as a consequence is all over the place and too often he’ll put his head down and rush and have zero impact” (Rob Station, Seattledraftblog.com, “Quick Notes: Takk McKinley & Malik McDonald,” 4-18-17).
At the annual national scouting combine in 2017, McDowell completed most drills but not the short shuttle nor the three-cone drill, which was one-third of the total. During the interviews he told NFL scouts that the MSU staff eventually had to confirm to his style of play because they could not change or improve him (Mark Niemi, The Only Colors, “NFL Draft Scouting Report: Malik McDowell” 4-26-17).
Nevertheless, Seattle drafted McDowell with the number 35 overall pick. McDowell participated in the club’s May rookie minicamp and photos of his participation remain on the Internet. McDowell’s contract included Standard Player Contract Paragraph 3 that states, in relevant part: “Other Activities. Without prior written consent of the Club (Seattle) Player (McDowell) will not… engage in any activity other than football which may involve a significant risk of personal injury” (Football Northwest, LLC, d/b/a Seattle Seahawks and National Football League Management Council v. Malik McDowell and National Football League Players Association, Case No. 3:19-cv-11588-RHC-RSW, United States District Court for the Eastern District of Michigan, Southern Division, Complaint to Confirm An Arbitration Award, 5-29-19 (“Complaint”), at page 4). One wonders in retrospect if McDowell read or understood the contract, or wishes that he had.
It is possible that McDowell was overcome with exuberance after he returned home to Michigan. After all, he had just turned 21 and was about to have more than a million dollars in the bank. Possibly to celebrate his good fortune, and his release from the rigors of academia, in mid July McDowell was riding an All-Terrain Vehicle (“ATV”). As much fun as it might have momentarily been, it was probably not worth it. McDowell was involved in an accident that left him too injured to report to Seattle’s summer camp prior to the 2017 NFL season. The NFL Network announced that among his injuries McDowell had a concussion (Kevin Patra, NFL.com. “Seahawks rookie Malik McDowell in vehicular Accident, 7-31-17). A year later the Detroit News called it “a severe concussion” (DetroitNews.com, “Seahawks waive”). Seattle Head Coach Pete Carroll confirmed the injury and stated that the club’s medical staff “have been in constant communication with his physicians and have been monitoring the situation. At this point it is important for Malik to stay at home and rest…” McDowell released a statement that claimed that fans “will see me back on the field in the near future” (Id.). That was not to be.
McDowell never did play in 2017 nor even participate in a single practice. One immediate consequence of the injury is that Seattle apparently paid McDowell $5,000 a week in 2017. Had he played, his base salary was to have been $465,000 (Matthew Charboneau, The Detroit News, “Seahawks sue ex-MSU standout Malik McDowell” 5-29-19), though $85,000 for staying home would be a downright luxury for many.
Not playing did not stop him from creating more trouble. That December, McDowell was arrested outside of a club in Atlanta as a result of a bar bill dispute: “Video showed McDowell berating police officers… In the video obtained by TMZ Sports, McDowell can be heard calling the officers names using profanity, brags about his ‘lawyer’ money, and at one point accusing officers of trying to ‘plant’ evidence as they put him in handcuffs” (TMZ Sports, “Seahawks’ Malik McDowell Busted for Disorderly Conduct,” 12/10/17).
Seattle put McDowell on waivers in 2018. No other team claimed him, “meaning Seattle was kind of stuck with him. The defensive tackle will cost Seattle a cap hit of $2.07 million as part of his base salary was guaranteed” (Lou Vowell, 12thmanrising.com, “Seahawks Sunday Roundup: The Salary Cap, Frank Clark and Malik McDowell,” 3-3-19). The Detroit News reported that he has suffered “a severe concussion in an ATV accident” (DetroitNews.com, Seahawks waive). The internet does not indicate what McDowell may have done during the 2018 NFL season but one thing he certainly did not do was play for the Seahawks.
The Seahawks and the NFL Management Council filed a grievance against McDowell on July 20, 2018, “seeking forfeiture of his signing bonus as a result of McDowell’s breach of paragraph 3 of the McDowell Contract” (Complaint at Paragraph 3). The NFL Players Association (NFLPA”) represented McDowell. The grievance led to “negotiations” with McDowell and the NFLPA such that the Seahawks “amended their arbitration demand to seek only forfeiture of Mr. McDowell’s 2017 and 2018 Signing bonus Allocations… Mr. McDowell represented that he would not contest that he had forfeited his 2017 and 2018 Signing Bonus Allocations” (Id. at Paragraph 18).
Seattle also filed a stipulated Proposed Order with “Arbitrator Burbank, that stated that Mr. McDowell had forfeited his right to the 2017 and 2018 Signing bonus Allocations (totaling $1,599,238) and requiring Mr. McDowell to return $799,238 to the Seahawks, which amount represents the $1,599, 238 forfeited, less the $800,000 of the Signing Bonus that the Club withheld after Mr. McDowell’s accident” (Id. at Paragraph 19).
NFL “System Arbitrator” Stephen Burbank held a telephonic hearing on February 27, 2019. Skadden, Arps, represented the Seahawks and NFL Management Council. The NFLPA”s Ned Ehrlich represented the NFLPA and McDowell. Also on the call were McDowell and his mother (Excepts of the Transcript, Exhibit F to the Complaint, at page 3). Arbitrator Burbank quizzed McDowell, asking if “you do not contest the forfeiture of the 2017 and 2018 Signing Bonus allocations; is that correct?” McDowell responded: “That’s right” (Id. at page 7, lines 7-10). Mr. Ehrlich made it clear that the issues concerning the 2019 and 2020 signing bonus allocations have been reserved, or, as Arbitrator Burbank put it, “put off to the future” (Id. at lines 18-24).
McDowell also stated that he did not have any questions about the proceeding, because “I’ve basically been told what’s going on” (Id. at 8, lines 3-6). Arbitrator Burbank also pointed out to McDowell that “you will be released after the Order is executed, which I don’t know whether it will be today or tomorrow” and to that McDowell responded: “Okay” (Id. at 9, lines 12-16). The transcript concluded on page 10.
Arbitrator Burbank signed the Order later day (Complaint Exhibit A). The Order states, inter alia, that after the injury in July 2017, “McDowell was placed on the Non-Football Injury (“NFI”) list on August 5, 2017″ (Id. at Paragraph 6). It also stated that the Seahawks “did not clear McDowell to return to play…As such, the Club was deprived of McDowell’s services under his contract during the 2017 and 2018 NFL seasons” (Id.). “Through his actions in July, 2017 McDowell breached Paragraph 3 of the McDowell Contract due to his engagement in an activity that may involve significant risk of personal injury and which did in fact cause him to sustain a person injury that prevented him from rendering playing services required by his contract during the 2017 and 2018 seasons” (Id. at 7).
Consequently, McDowell had “forfeited his Signing Bonus Allocations for 2017 and 2018…McDowell is currently required to repay the Seahawks $799,238, which amount represents the $1,599,238 forfeited, less the $800,000 of the Signing Bonus that the Club withheld” (Id. at 10). It further memorialized the parties’ agreement to defer the dispute about the 2019 and 2020 Signing Bonus allocations, (Paragraph 11), that the Seahawks would release McDowell after the order was signed, but that this release “in no way extinguishes the Club’s right to seek forfeiture of McDowell’s remaining Signing Bonus Allocations” (Paragraph 12).
The stipulated order concluded by stating that McDowell “is Ordered to pay the Seahawks $799,238” “within thirty (30) days of this Order” (Id. at page 4).
The Collective Bargaining Agreement gave McDowell ten days to appeal his stipulated-to order but he did not do so. He also did not pay the Seahawks the money that he owed them, (Complaint, Paragraphs 24, 25). For their part, Seattle honored its commitment and released McDowell.
McDowell’s agent is the ebullient Drew Rosenhaus who immediately tried to interest teams in McDowell. Rosenhaus admitted that “it was a brain injury, a head injury” but that he had found a doctor who cleared McDowell (Bob Condotta, Seattle Times, “Turns out, the Seahawks’ ill-fated Malik McDowell saga is not quite over” 5-29-19). Rosenhaus also told the media: “We’ve got experts that are saying he will be cleared. So hopefully he will be able to continue his career, possibly in Dallas” (Matthew Charboneau, The Detroit News, “Seahawks sue ex-MSU standout Malik McDowell” (“Seattle sue”) 5-29-19).
McDowell went to Dallas, but the Cowboys did not sign him. Head Coach Jason Garrett stated the issue succinctly: “The biggest question with him, is the medical question–making sure we’re comfortable with that” (Id.).
McDowell began to beat his own drum, tweeting that he had been cleared to play by “Dr. Jeffrey Kutcher, MD Neurologist vs The Seahawks Dr. Samuel R Browd Seattle Children/Pediatric Neurologist who’s primary patients are under the age of 12” (Ben Arthur, Seattle PI, “McDowell: ATV accident, head injury wasn’t why Seahawks didn’t clear me” 6-1-19). One wonders what class at Michigan State prepared McDowell to compare and evaluate physician neurologists. McDowell also claimed that the Seahawks “had there (sic) reasoning for not letting me play” but he did not bother to tweet just what that reason was, (Pro Football Rumors, Rory Park, “Malik McDowell: Seahawks Had Their Own Reasons For Not Letting Me Play, 6-2-19). Coach Carroll was quite clear: “The doctors wouldn’t let him play. He had an accident that he was injured and they couldn’t clear him” (Charboneau, “Seahawks sue”).
In his excitement to return to the NFL, McDowell may have overlooked his obligation to repay the Seahawks and the thirty days came and went, and then came and went again, and then yet again. So, without the stipulated payment anywhere in sight, the Seahawks and the Management Council filed a single-count complaint in the United States District Court for the Eastern District of Michigan, Southern Division on May 29, 2016 (Complaint, page 1). The Complaint seeks to have the court confirm and enforce the award, require McDowell to pay the Seahawks within 10 days of confirming the award, award interest from the date of the stipulated Order to the date of the court’s judgment, award further interest from that through the date on which the full payment is made, award the Seahawks costs incurred in the confirmation proceeding and the usual “any other relief that this Court deems necessary and proper in the interests of justice” (Id. at page 9). Law firms Skadden, Arps and Foley & Lardner filed the Complaint for the Seahawks and Management Council.
The Seahawks and Management Council also filed a Motion to Seal that same day. On May 30, the summons was issued and the next day, May 31, the plaintiffs filed a Motion to Confirm the Arbitration Award. The Court signed the Motion to Seal on June 4, 2019.
That is where things stand of this writing. Given that the underlying arbitration award was the result of a stipulation on the record, one wonders what defense is available to McDowell. On the other hand, one must also wonder how much of the signing bonus is still in his possession. If the Seahawks’ doctors are correct that McDowell cannot return to playing football, then he is left with a partial education from Michigan State and must somehow figure out how he is ever going to repay the Seahawks.
Yet McDowell will not soon be forgotten in Seattle. According to the Seattle Times, McDowell is the highest drafted player by Seattle to never have played for the Seahawks (www.seattletimes.com, “Seahawks sue former draft pick Malik McDowell,” May 30, 2019). Another columnist maintained that McDowell was “a bust and quite possibly the worst in Seattle pro sports history” (John McGrath, TheNewsTribune.com, “This Seahawks draft pick was a bust, and quite possibly the worst in Seattle pro sports history,”4-17-18). McDowell “never played for the Seahawks, never even broke a sweat for the Seahawks in training camp. The ultimate bust” (Id.). For both the Seahawks and McDowell, the July pleasure trip might well have been the most expensive ATV ride in history.
Birren is an adjunct professor at Southwestern University School of Law and former general counsel of the Oakland Raiders.
