The NFL’s unresolved review of sexual misconduct allegations against Cleveland Browns quarterback Deshaun Watson could be influenced by the episode of HBO Real Sports that aired on Tuesday, May 24.
On the episode, Soledad O’Brien spoke with Ashley Solis and Kyla Hayes, two of the 22 women suing Watson in Harris County (Texas), for their first national TV interview. The massage therapists detailed Watson’s alleged acts and called it “sick” for the Browns to sign Watson to a $230 million guaranteed contract, the most money ever guaranteed in an NFL deal. Solis emphasized that “it was so scary” to learn that other women had similar experiences with Watson.
A grand jury in Texas declined to indict Watson for his alleged actions, and attorney Tony Buzbee, who is representing the 22 women, lambasted the NFL for what he described as going through the motions.
Although Watson declined to be interviewed, one of his attorneys, Leah Graham, spoke with O’Brien. Graham suggested the accusers aren’t believable since, as she tells it, “there’s only one lawyer who was willing to take these cases.” Graham attempted to blame Buzbee, maintaining “these cases” are designed to “increase his social media following and quite frankly to get on shows like this one.”
As always with a TV segment, HBO’s reflected editorial discretion. Viewers only saw selected excerpts of interviews and only heard accompanying commentary as chosen by producers. No one interviewed was under oath, which means they could have lied without legal repercussion. On the other hand, any inconsistencies with sworn testimony could be highlighted in court.
It’s unclear if the segment provided new insights for the NFL. Remarks by Solis and Hayes covered topics which have already been detailed in their complaints. Then again, the public seeing and hearing directly from the women offers a different point of view than reading what Buzbee wrote on their behalf.
The fact that HBO would air a segment on the accusations also reflected the absence of a litigation settlement. Buzbee says his clients won’t agree to settle if, as Watson allegedly demands, they must also sign nondisclosure agreements. For his part, Watson categorically denies committing assault or other unlawful acts. He says he has no intention to settle and instead wants to “clear his name,” presumably by defeating his accusers in court. The fact that there are 22 lawsuits also presents a logistical hurdle: if just one of the plaintiffs won’t settle, the litigation goes on.
While the accusations attract the attention of TV and other media, the lawsuits continue to play out in court and in pretrial proceedings. Last month, two of the therapists added two additional causes of action for negligence and gross negligence.
As recently revealed by USA Today, Watson admitted during a deposition that one of his accusers cried at the end of a massage service. Watson, who denies he made unwanted sexual contact, further admitted he sent a follow-up text which said, “Sorry about you feeling uncomfortable,” and “my apologies.”
Those admissions, by themselves, do not prove Watson is liable. Making someone cry and feel “uncomfortable” can lawfully occur. But should the litigation go to trial, a jury could infer that Watson acted wrongly. Much would depend on other evidence and whether jurors found Watson or his accusers more believable.
The NFL doesn’t have to wait to see what unfolds in court to take action. The league could conclude Watson’s conduct was at least inappropriate and reflects poorly on him and the league.
Along those lines, though the NFL’s review of Watson is sometimes portrayed as quasi-legal process, it is more accurately viewed as a workplace policy in action. The NFL is not a judge or jury. It is a franchisor attempting to mitigate potential damage to its brand caused by a franchisee’s employee.
The goals of the legal system and the NFL are also different.
Harris County Judge Rabeea Collier is charged with providing a fair process to assess if, by a preponderance of the evidence, Watson is civilly liable to his accusers under Texas law and, if so, how much money Watson must pay. Should any of the cases go to trial, Collier would preside and ensure that jurors act properly. The legal process is concerned with the link between Watson and his accusers; the NFL’s image and reaction by journalists, fans, league sponsors and Browns’ business partners are not relevant considerations.
Retired federal Judge Sue Robinson, meanwhile, is the disciplinary officer jointly appointed by the league and NFLPA. Her job is to determine if Watson engaged in conduct detrimental to the integrity of, or public confidence in the NFL. Unlike the legal system, Robinson’s charge is not to make injured plaintiffs “whole again” through financial remedies. Her job is to potentially punish Watson in the workplace. A finding that Watson engaged in conduct detrimental is not tantamount to a finding that he broke the law; the NFL has suspended several players (e.g., Ezekiel Elliott, Ben Roethlisberger, Jarran Reed) who were not found to have broken the law. An appropriate punishment can weigh damage to the league’s public image and damage to its business relationships.
Either Watson or the NFL could appeal Robinson’s decision to Goodell, who would function as an arbitrator (or would delegate that responsibility to a person of his choosing). Goodell’s ruling would be “final” though Watson could petition a federal court to vacate it (he’d face long odds there, see Brady v. NFL).
There is no trial date(s) set for the lawsuits; they will likely be scheduled for next year or later. Timing is impacted by the scope of pretrial discovery, the appropriateness of holding one trial or multiple ones and the schedules of the judge, the litigants and the attorneys. It’s a different story for the NFL. According to Hardin, Robinson is expected to make a decision in June or July. Goodell on Tuesday was quoted as saying the league was “nearing the end of the investigative period.”
Financially, Watson would be better off serving a suspension in 2022 than in 2023. His contract is structured so that his base salary in 2022 is “only” $1.04 million, with an additional $45 million arriving through a signing bonus. Suspensions cost the proportion of base salary lost to missed games, which for Watson in 2022 will be about $57,500 per game. In contrast, in 2023, Watson’s salary climbs to $46 million, so each suspended game would lead to a $2.56 million reduced salary.
(This story has corrected the name of Watson’s attorney to Leah Graham in the fourth paragraph.)