The looming legal battle over a looming appeal of a looming NFL suspension of Deshaun Watson might all get benched.
According to journalist Josiana Anderson, the NFL and NFLPA, along with representatives for Watson, are attempting to negotiate a settlement before retired federal Judge Sue Robinson, serving as a neutral disciplinary officer under the NFL’s new procedures, hands down a suspension. Anderson explains that the talks have been tabled because of a disagreement over the number of games Watson would be sidelined.
The NFL’s reported willingness to settle with Watson is an illustration of how NFL commissioner Roger Goodell’s powers have changed in the new CBA. He previously issued punishments and, at his discretion, heard appeals. The new system, however, involves a disciplinary officer who was jointly appointed by the league and union. If Robinson issues a ruling, Watson (through the NFLPA) or the league could appeal it. Goodell or a designee of his choosing would hear the appeal.
While this system ensures Goodell has final say, the optics of a commissioner who is not an attorney effectively overruling a retired judge—who is also a former federal prosecutor and a recipient of awards for excellence in the legal profession—are worth considering. Goodell might hesitate to conclude that a person of Robinson’s stature got it wrong. That could be a motivation for the league to engage in settlement talks.
The talks are also an important reminder that whether, and for how long, Watson is suspended is a question about application of a bargained workplace policy that prohibits conduct detrimental to the league. This is not a “legal” question. To that point, Robinson is not deciding whether Watson broke a law. She is applying a workplace policy.
The NFL and NFLPA can also enjoy the latitude of labor law. Generally, union and management can agree to apply a workplace policy as they see fit. If they reach a deal that Watson, who didn’t play in 2021, is suspended for eight games, and that Watson agrees not to appeal or sue, that is within their discretion.
Both sides also have an incentive to avoid going to court. After an appeal to Goodell is decided, Watson could petition a federal court to vacate it. The odds of success would be low. Federal law requires that judges accord broad deference to arbitrators. Goodell or his designee would be functioning as an arbitrator in hearing the appeal. Watson would need to establish there was a glaring or meaningful defect in the process used to judge him—a taller task with Robinson being part of that process.
But the NFL didn’t expect Tom Brady to win at the district court level in 2015, which tabled a four-game suspension. While the NFL won on the next round at the U.S. Court of Appeals for the Second Circuit, the league might be leery of another high-profile court battle with a star player.