With Houston Texans QB Deshaun Watson the defendant in assault lawsuits brought by 19 massage therapists, and with none of the accusations generating a known police investigation, the NFL faces what might be its most complicated player conduct matter to date.
The NFL has signaled the situation is under review. Watson, like other players, is subject to the league’s personal conduct policy, prohibiting “conduct detrimental to the integrity of and public confidence” in the game. A finding of “conduct detrimental” is not necessarily predicated on a finding of criminal guilt or civil liability. Dallas Cowboys running back Ezekiel Elliott, Seattle Seahawks defensive lineman Jarran Reed and Pittsburgh Steelers quarterback Ben Roethlisberger all faced NFL suspensions for alleged off-field misconduct without having been charged.
The unique challenge for the NFL, former New England Patriots general counsel/player personnel expert Jack Mula tells Sportico, is the sheer scope of Watson’s situation and the possibility that the accompanying legal process could last well beyond 2021.
“With so many accusers,” Mula said, “and if media reports of other teammates’ involvement are substantiated, the investigation could easily extend beyond the current season.”
While Watson may be the center of the league’s investigation, it’s an inquiry that could go much deeper and involve other players and staff. Any employee of a team who may have knowledge about the matter, Mula said, as well as anyone “who might have recommended or sought massage therapy from any of the involved parties,” would be of interest to the NFL.
It remains to be seen if Watson’s accusers would cooperate with NFL investigators and, if so, under what conditions. The league is a private business and lacks subpoena powers; it can’t compel outsiders to participate. If Watson and his accusers reach out-of-court settlements, those settlements would almost certainly contain nondisclosure agreements. Mula, mindful of these limitations, cautions that the commissioner’s office can still draw from a range of informative sources. They include those from criminal investigations, self-reporting or the media. The NFL can also retain outside counsel and security services.
Since March 16, 19 women have sued Watson for assault in Harris County District Court. Three of the lawsuits were filed on Monday. All of the women are represented by Houston attorney Tony Buzbee. Watson firmly denies the allegations, and the 25-year-old Texans star dismisses the lawsuits as extortive acts.
The complaints vary in certain details, but generally describe the same pattern. Watson is accused of communicating with the therapists through Instagram and requesting their services to treat injured areas of his body. During the massages, Watson is alleged to have directed the therapists—sometimes through contact, other times through vocal pressure—to touch his groin area or to perform oral sex. Some of the therapists also assert that Watson directly or implicitly warned them not to report, and that other players reached out to them, as well.
The plaintiffs raise three types of civil claims: sexual assault, assault and intentional infliction of emotional distress. Collectively, these claims accuse Watson of making unwanted physical contact of a sexual nature and engaging in outrageous behavior intended to humiliate and cause anguish.
To be clear, these are civil claims, not criminal charges. That legal distinction is substantial and impacts the NFL’s fact-finding.
A civil claim demands monetary damages (or an order compelling the defendant to stop or start some action). The threshold necessary to file a lawsuit is fairly low. The complaint must not be frivolous, meaning the attorney failed to perform basic due diligence in assessing the client’s allegation, though court sanctions for frivolous claims are uncommon. To prevail in civil litigation, the plaintiff must prove the claim by a preponderance of the evidence, meaning more likely than not.
The 19 complaints aren’t attributed to named plaintiffs, who are all listed by the pseudonym “Jane Doe.” Courts generally allow anonymous filings to proceed when there are compelling reasons for shielding the plaintiff’s identity, such as risk of retribution or embarrassment. However, courts are sensitive that anonymous filings limit information about the accuser and thereby potentially undermine a defendant’s ability to defend himself or herself. Whether the identities of Watson’s accusers remain shielded will be determined by the presiding judges.
The complaints are also “unverified,” meaning they are signed by Buzbee, rather than by the plaintiffs themselves. A verified complaint, in contrast, is when the plaintiff swears under oath and at risk of perjury that their assertions are true. The use of an unverified complaint is common. However, it allows Watson’s attorneys to question the accusers’ veracity and enables Watson to offer general, rather than specific, denials. That could limit information flow to the NFL.
Watson’s defense team, led by noted attorney Rusty Hardin, maintains there is “strong evidence” that the accusers are lying and at least one attempted to extort Watson into paying $30,000. These assertions suggest that Watson might countersue the accusers, which would complicate the litigation and create additional risks for the litigants.
With at least 19 plaintiffs and allegations that occurred in different locations, the factual scope of the litigation will be cumbersome. Many witnesses—including accusers and others who saw, heard or read about Watson’s alleged interactions—will provide sworn statements subject to judicial scrutiny and cross examination. A significant amount of electronic evidence in the form of Instagram messages, texts, emails and potentially videos could also surface. Electronic mapping and location data in Watson’s communications might also prove important.
The coronavirus pandemic further complicates matters, with civil litigation slowed as courts prioritize available court hearings for criminal prosecutions.
So far, no police reports related to the allegations have surfaced. For Watson to be charged with a crime, a grand jury would be convened and would return an indictment if there was a finding of probable cause. Those steps would require time, testimony and evidence. While Buzbee believes sworn testimony would reveal criminal conduct, law enforcement would need to independently corroborate accusations before proceeding.
With the possibility of litigation and league investigation extending into 2022, Mula believes the commissioner’s exempt list could become relevant this fall. The list is akin to paid administrative leave, where the player is barred from playing games and practicing while continuing to receive compensation. Commissioner Roger Goodell can place a player on the list in several circumstances, including “when an investigation leads the commissioner to believe that a player may have” committed an act of violence or sexual assault. Last year, Goodell placed Seahawks cornerback Quinton Dunbar on the exempt list after he was arrested for armed robbery; charges were later dropped.
As for the Texans, they face the predicament of a player who reportedly demands a trade but whose trade value has likely fallen. Mula emphasizes the Texans enjoy significant latitude.
“I would expect the Texans and [general manager] Nick Caserio to defer to the league’s authority,” Mula said, “while also examining their rights under Mr. Watson’s player contract. It is usual for a club to insert financial forfeiture provisions in a player’s contract, and in this case likely exercisable by the Texans, depending on the results of the league’s investigation.”
Note: The story was updated to account for three lawsuits filed after initial publication. (March 29, 1:15 p.m.)