Tuesday will be a crucial day for the Deshaun Watson situation.
Retired federal Judge Sue Robinson, serving as a neutral disciplinary officer under the NFL’s new procedures, is scheduled to hold a hearing where the league will square off against representatives for Watson and the NFLPA. They’ll present dueling arguments over whether Watson violated Article 46 of the CBA and, if so, for how long he should be suspended.
According to The Wall Street Journal, the NFL wants Robinson to suspend Watson for a minimum of one year and for the league to have discretion on when he returns thereafter. After the year, the league would allow Watson to petition to return. There would be no guarantee the league approves the petition, meaning Watson could remain suspended for an indefinite period beyond one year.
The NFL believes such a lengthy and indeterminate punishment is warranted given the number of sexual assault accusations, the seriousness of those accusations, the pattern of misconduct, the evidence (texts and testimony) and the possibility that Watson could be sued by others.
Watson has repeatedly denied wrongdoing. In March, a grand jury in Texas declined to indict him on criminal charges. He’s settled 20 of the 24 lawsuits against him, but the remaining cases could linger on the docket well into 2023 before they’re resolved.
Whether Watson broke a law is not the applicable test under the league’s workplace policy; instead, it asks whether a player engaged in conduct detrimental to the NFL. Over the last dozen years, several high-profile players accused of misconduct with women have been suspended for multiple games—Ben Roethlisberger (six games, later reduced to four games), Ezekiel Elliott (six games) and Jarran Reed (six games)—without a finding that they broke the law. The league in those instances concluded the players had engaged in conduct detrimental.
Robinson, who served as a federal district judge for 26 years, might be wary of a suspension that could range from one year to an indeterminate length. That type of penalty could be viewed more as a ban, since only the league would decide if, and when, it ends. Robinson could also reason that the prospect of future litigation is a speculative basis by which to assign a penalty for past misconduct. Robinson might instead conclude that if the league wishes to punish Watson for any future lawsuits, it can do so in the future.
The league has a mixed history with the use of indefinite suspensions. In 2014, former federal judge Barbara Jones, while serving as an arbitrator, vacated an indefinite suspension imposed on Baltimore Ravens running back Ray Rice. The league had initially suspended Rice two games for a domestic violence incident with his then-fiancée. After TMZ published a disturbing video, NFL commissioner Roger Goodell suspended Rice indefinitely. Jones concluded that the NFL was unauthorized to elevate the suspension to an indefinite period in the absence of new facts.
The NFLPA can also stress that while Goodell is authorized by a collectively bargained document—the NFL Player Contract—to impose an indefinite suspension, the authorization arises in the “integrity of the game” clause. Under it, the commissioner can suspend a player “for a period certain or indefinitely” when the player takes bribes, associates with gamblers or partakes in related activities that have nothing to do with the types of accusations against Watson. This is why, the NFLPA can insist, the league’s indefinite suspension of Atlanta Falcons wide receiver Calvin Ridley for betting on games does not lend support for a similar suspension of Watson.
If Robinson rejects the NFL’s request and suspends Watson for a specific amount of time, such as one season or 12 games, the new version of Article 46 authorizes the league to appeal her decision to Goodell. The commissioner would then hear the appeal, or he could pick a designee to perform that task.
The structure of the appeals suggests that if Goodell believes Watson should be suspended for one year and an indefinite period thereafter, then Goodell can make that happen. He could simply overrule Robinson and impose the penalty he wishes through a written decision. That decision, according to Article 46, would “constitute [a] full, final and complete disposition of the dispute and will be binding upon” all involved.
However, there are at least three complicating factors.
First, Goodell, who is not an attorney, might hesitate at boldly disregarding the legal reasoning of a retired federal judge and former federal prosecutor. Even if Goodell appoints a designee, such as an attorney who works for the NFL, to handle the appeal, that person likely would lack the authoritativeness of a former federal judge.
Second, Goodell or a designee would arguably undermine the spirit of the new disciplinary process by imposing the penalty the league originally sought. This is the first time the process is being used. If the NFL acts in a way that suggests Robinson’s role was irrelevant, the resulting perception could impact the quality of legal professionals who would be willing to hear the next high-profile matter.
Third, if Watson sues the NFL after Goodell/designee rules on an appeal, the federal judge assigned to the case might be more inclined to find the league acted arbitrarily. The logic would be that the reasoning offered by the disciplinary officer, who happens to be a fellow member of the small and exclusive club of federal judges, was not accorded sufficient deference.
The last point is critical for the NFL if it wishes to avoid a protracted legal battle. The NFLPA has retained famed sports litigator Jeffrey Kessler (who won NCAA v. Alston in a unanimous decision by the U.S. Supreme Court last year) to work on the Watson matter.
Kessler knows that the NFL would be favored in litigation because of the applicable standard of review. Kessler would face the tall task of convincing a federal judge to vacate a decision by Goodell or his designee when federal law requires judges to accord high deference to an arbitrator (that is, Goodell/designee).
The judge would also be bound by the factual record determined by Goodell/designee. Stated differently, there would be no trial and only limited discovery. This is why despite Tom Brady persuasively attacking the NFL’s science in Deflategate, he ultimately lost in court: the NFL controlled the facts upon which the judges had to rely.
But Brady won the first round before Judge Richard Berman and his case lasted nearly a year. Does the NFL want a protracted battle over Watson, one that might raise questions about the process used to judge him and one where a feared litigator is representing Watson? Only time will tell.
In the meantime, the two sides could negotiate a settlement, wherein Watson would accept a suspension and agree not to appeal or sue. But given the NFL’s demand for a lengthy suspension without a clear end date, and given Watson’s insistence that he hasn’t broken any laws, they don’t seem poised to find a middle ground.