The NFL and NFLPA on Thursday reached a settlement regarding Deshaun Watson’s suspension for violating the league’s personal conduct policy, and in doing so, averted a likely multi-month federal litigation.
The settlement calls for Watson’s suspension to be increased from six games to 11 games, as well as Watson paying a fine of $5 million. That fine, along with $1 million in contributions from the NFL and Cleveland Browns, “will support the work of non-profit organizations across the country that educate young people on healthy relationships, promote education and prevention of sexual misconduct and assault, support survivors, and related causes,” the league said in a statement. Watson also agreed to undergo “a professional evaluation by behavioral experts” and adhere to a treatment program.
Under federal labor law, the NFL and NFLPA, as management and the union, have the right to negotiate a resolution to a workplace dispute concerning a union member, i.e., a player. Although Watson has been accused in court filings of assault and other unlawful acts, his disagreement with the NFL was governed not by a code, statute or a case, but rather a provision in a labor agreement: Article 46 of the collective bargaining agreement. Watson’s union and the NFL negotiated an acceptable resolution.
Peter Harvey, the former New Jersey attorney general who league commissioner Roger Goodell designated to hear the appeal, was set to issue a ruling. The NFL had recommended that Watson be suspended one season plus an indefinite period thereafter. Had Harvey imposed a suspension of that kind, Watson and the NFLPA could have then petitioned a federal court to vacate the extended suspension while the NFL could have asked a court to confirm it.
The unique structure of Watson’s $230 million contract with the Browns also created a financial risk in litigating the suspension. Watson’s representatives negotiated his $46 million salary in 2022 to include a $45 million signing bonus and a base salary of $1.04 million. NFL suspensions only dock base salary, meaning Watson will lose about $57,500 for each suspended game in 2022.
If Watson sued and won his case at the district court level but lost on appeal—as Tom Brady did in 2015— he would likely serve some of his suspension in 2023, when his base pay climbs to $46 million, and he would lose $2.56 million for each suspended game. By serving his suspension in 2022, Watson will lose about $632,500 in salary ($57,500 x 11 games), in addition to the $5 million fine.
The increased suspension for Watson in the settlement stems from the NFL’s appeal of the Aug. 1 decision by retired Judge Sue Robinson, serving as a neutral disciplinary officer and factfinder, to suspend Watson six games. Robinson agreed with the league that Watson had engaged in “predatory conduct” in relation to multiple massage therapists. She also opined that Watson’s “pattern of conduct” was “more egregious than any before reviewed by the NFL” and deemed his “lack of expressed remorse” problematic.
Yet Robinson found insufficient support in the CBA or past practices to adopt the NFL’s demand that Watson be suspended an entire season and an indefinite period thereafter. She concluded that a six-game suspension was appropriate given past player punishments. Robinson also underscored that Watson had partaken in “non-violent sexual conduct” as that term has been understood in NFL disciplinary matters, and, since it was his first disciplinary offense, he wasn’t a repeat offender (even though numerous women accused him of assaulting them).
As authorized by Article 46 of the new CBA, the NFL appealed Robinson’s decision to Goodell. Goodell then picked Harvey, an NFL consultant and an accomplished attorney with expertise in criminal law, to hear the appeal. Watson declined the opportunity to appeal, meaning he waived the chance to contest the six-game suspension.
Under the CBA, Harvey’s decision would have “constituted [the] full, final and complete disposition of the dispute.” But Watson (and the NFLPA) had the legal right to petition a federal judge to vacate Harvey’s decision—a right that they relinquish by settling. To make a credible argument under federal law, Watson must show that Harvey’s decision reflects fraud or corruption or is very far outside the boundary of basic legal principles.
Watson would have faced long odds in accomplishing that task.
Federal judges seldom vacate arbitration decisions, which labor and arbitration laws compel be accorded high deference. Brady, Ezekiel Elliott and Adrian Peterson all came up short in their suspension-related federal court cases. And, though a judge might have found Robinson’s assessment more persuasive than Harvey’s, disagreement wouldn’t have constituted sufficient grounds to set the decision aside. There would have needed to be a finding of a substantial error. Similarly, a judge might have found it unfair or one-sided that the NFL can, through Goodell, essentially appeal to itself, but the judge would have accepted that arrangement since Watson’s union negotiated it.
Watson—and more specifically, his legal team led by sports litigator Jeffrey Kessler—would likely have contended that Harvey inadequately addressed Robinson’s decision. While Robinson underscored the importance of consistent employee punishments under labor law, a concept known as “law of the shop,” Harvey would have likely found that less essential. Watson might also have asserted that Harvey relied on arguments that drew from a different or wider evidentiary record than was considered by Robinson.
Under Article 46, appeals are “limited to arguments why, based on the evidentiary record below,” the punishment should be modified. Article 46 is also silent on the appropriate standard of review for Harvey in reviewing Robinson’s decision; the absence of clarity might have supplied another line of attack.
The NFL would have been prepared for these and other arguments. The league would have maintained that the collectively bargained disciplinary process was followed, and its outcome ought to be respected. The NFL could underscore that Article 46 doesn’t cap a suspension’s length. It can thus suggest that Robinson wrongly read a limiting principle into Article 46 that hadn’t been obtained by the union in bargaining. As to past practices, the NFL has maintained that Watson’s type of misconduct is unprecedented and thus past disciplinary matters aren’t on point.
Any litigation could have brought on opportunistic “forum shopping” by both sides. The NFL might have sued Watson in the Southern District of New York, as the league has favorable precedent there. Watson, meanwhile, might have sued in an Ohio federal court or one where his attorneys believed a court would be relatively less deferential to Harvey. This gamesmanship took place in Brady’s litigation with the NFL, with the NFL suing Brady in SDNY while Brady sued in a Minnesota federal court. Typically, the forum where a complaint is filed first is where the dispute will be heard.
With assistance from Scott Soshnick and Kurt Badenhausen.