With the Cleveland Browns trading multiple draft picks to the Houston Texans for quarterback Deshaun Watson, and then promptly signing Watson to a record-breaking contract worth $230 million guaranteed, questions remain about the legal risks for Watson and their impact on the Browns.
On March 11, a grand jury in Texas declined to indict Watson for crimes stemming from accusations by more than 20 women who assert Watson assaulted and terrorized them during massage services. Watson currently faces 22 lawsuits over those allegations.
Sportico’s legal expert answers 20 key questions on what to expect going forward.
1) Does the lack of a criminal indictment mean Watson will win the civil cases?
No. These are two different areas of law, and they rely on different kinds of proceedings with their own accompanying rules.
By declining to indict Watson, the grand jury did not find probable cause. The jurors considered criminal law and concluded there were insufficient facts and circumstances to believe Watson is responsible for a crime. Grand jury proceedings are also run by the chief prosecutor, who decides whether to call witnesses and introduce evidence. Unlike civil proceedings, grand jury proceedings are conducted in private; we don’t know what evidence or testimony was presented. As the target of the proceeding, Watson had a largely passive role.
A jury considering civil claims against Watson would focus on a different area of law (torts) and its required elements for civil assault and other causes of action. A civil proceeding would focus on whether the preponderance of evidence indicates Watson committed a wrong against the accusers and, if so, what is the appropriate dollar figure for the damages he caused. The accusers’ attorneys would advocate for their interests (as opposed to the interests of the government or citizens in general). Watson and his attorneys, for their part, would have full opportunity to offer defenses in a public forum.
There’s no question Watson should feel more confident about his chances given he was not indicted. But that doesn’t guarantee he wouldn’t be held civilly liable.
2) Some have said Watson has won the criminal law phrase. Is that accurate?
Not necessarily. Although unlikely to happen, Watson could face another grand jury proceeding. The Fifth Amendment’s double jeopardy provision, which prevents the government from prosecuting someone twice for the same crime, does not attach at the grand jury stage. In 2014, a second grand jury charged former NFL player Adrian Peterson after a first grand jury had declined. Peterson pleaded no contest to misdemeanor reckless assault and the NFL suspended him.
3) Does that mean Watson preserves his Fifth Amendment privilege against self-incrimination?
Yes. He could still be criminally charged.
4) Why doesn’t Watson offer enough money to convince the accusers to drop their cases?
There are at least a couple of reasons.
First, accusers would have to accept the offer. It’s unknown if they would be willing. They might prefer a public hearing or demand an apology from Watson as part of a settlement.
Second, through his attorneys, Watson insists he is innocent, and he might have his own concerns about settling. Some in the public would regard a settlement as a tacit admission, and the NFL may interpret a settlement, especially one where Watson offers remarks of contrition, as worthy of league discipline.
5) If there is a civil trial, would Watson have to testify?
No. A defendant’s decision to testify in a criminal or civil trial is up to the defendant. The difference with a civil trial is that the jury is permitted to draw an adverse inference. In a criminal trial, the jury is not permitted to draw that inference due to the defendant’s Fifth Amendment privilege. The NFL, as a private business, could also draw an adverse inference from Watson refusing to testify.
6) How could the NFL punish Watson given that the legal system hasn’t yet found him at fault?
The NFL is a private business that enforces workplace rules governed in the CBA and player contracts. Whether the legal system finds a player responsible for breaking the law is not the relevant test for the NFL. Under the CBA, the league determines if a player has engaged in “conduct detrimental to the integrity of, or public confidence in, the game of professional football.”
On multiple occasions, the NFL has punished players for off-field misconduct that the legal system had not assigned fault.
In 2019, the league suspended Seattle Seahawks defensive tackle Jarran Reed for six games stemming from accusations of domestic violence. Two years earlier, the NFL suspended Dallas Cowboys running back Ezekiel Elliott for six games after a league investigation into domestic violence allegations raised by Elliott’s former girlfriend. In 2010, the NFL suspended Pittsburgh Steelers quarterback Ben Roethlisberger for six games (later reduced to four) over sexual assault allegations that did not lead to charges or an indictment.
7) But what does the NFL know that the legal system doesn’t?
Possibly nothing, but that’s not the determining factor. The league could consider the exact same evidence as the courts and find a player at fault when the legal system does not. Remember, the NFL is applying a workplace policy, not a law.
Also, the evidence might not be the same. The league has advantages and disadvantages for investigations. One advantage: The NFL is not bound by the various restrictions that accompany subpoenas, warrants and other methods of obtaining evidence. The league can hire private investigators and can rely on less formal grounds, including private conversations with coaches and others who might be in possession of relevant knowledge. One disadvantage is that the league, as a private business, can’t rely on subpoenas that force a party to turn over evidence or compel sworn testimony.
8) Wasn’t Watson already suspended last year by the Texans?
No. A suspension is a separation from employment where the player is not paid his base salary. Watson was paid his base salary last year. Under the CBA, fines and suspension also result from a detailed process explained in Article 46 of the CBA. That process did not occur.
9) But why didn’t he play for the Texans in 2021?
Watson and the Texans, from whom he demanded a trade in early 2021, reached what has been described as a mutual agreement where he would sit out—and be paid. The sexual assault allegations and the surrounding controversy were obviously important context. Still, neither the Texans nor the NFL acted against Watson.
10) Why didn’t the NFL block the trade or Watson’s contract?
The league might have committed a labor law violation had it done so.
The NFL had no grounds, under its labor agreement with the NFLPA, to reject the trade or contract, so long as those transactions complied with the salary cap and other CBA provisions. Remember, the NFL has not found Watson at fault or disciplined him, at least not yet. To block the trade or contract could have led the NFLPA to argue the league committed an unfair labor practice and engaged in a denial of Watson’s rights under the CBA. The league would be accused of prejudging Watson’s guilt before concluding an investigation.
11) Could the NFL discipline Watson in other ways?
Yes, the NFL could determine that Watson engaged in conduct detrimental of a kind that only warrants a fine.
The league could also place Watson on the “exempt list,” which in typical workplaces would be called “administrative leave” or leave with pay. The list is appropriate when a league investigation leads commissioner Roger Goodell to believe a player may have engaged in wrongdoing and should be separated from the team, but more investigation is warranted. On the exempt list, Watson would not be eligible to play.
12) Why wouldn’t the NFL have put Watson on the exempt list already?
One possibility is the agreement between Watson and the Texans for him to sit out the 2021 season negated the need. The exempt list would have redundantly yielded the same outcome: Watson wouldn’t have played but would have still been paid.
Now that the Browns intend to play Watson, the exempt list might be more on the NFL’s radar.
13) By when does the league have to decide to punish Watson?
Unlike the legal system, where statutes of limitation ensure a person must be charged or sued by a certain date, the league has discretion. There is no set date. The NFL suspended Reed two years after the alleged incident.
14) Watson’s contract is guaranteed, so that means he’d still be paid if he’s suspended, right?
Wrong. Suspended NFL players are not paid their base salary. Watson’s agents were clearly cognizant of that point in structuring his contract so that in 2022, Watson will receive a $45 million signing bonus but a base salary of “only” $1.04 million. If Watson is suspended in the upcoming season, the financial impact would be greatly mitigated: Watson would only lose pay for the number of games missed and the accompanying loss of base salary—not the signing bonus. Each missed game would cost him about $57,500.
Alternatively, if Watson is suspended in 2023, his base salary, per Spotrac, jumps to $46 million, and every missed game would cost him $2.56 million.
Watson’s guarantee is still important in that if the Browns eventually conclude he has under-performed relative to his high salary, the team can’t cut him and not pay.
15) Should the NFL prevent a player suspected of serious wrongdoing from structuring his contract that way?
No. The NFL is legally bound by the CBA. It can’t make up new rules to address creative contract drafting. The NFL is stuck with this arrangement, too: The CBA doesn’t expire until 2030.
16) How do changes to player discipline in the current CBA impact Watson’s situation?
Watson, and other NFL players suspected of wrongdoing, have gained additional protections in the league’s disciplinary process. The initial decision on whether the player violated the conduct policy is determined by a disciplinary officer who is jointly appointed by the NFL and NFLPA. Goodell no longer serves in that capacity. However, Goodell still has final say. The player or the league can appeal the disciplinary officer’s decision, and Goodell hears it.
17) Why doesn’t Watson tell his side of the story?
Because anything he says could be used against him in court or by the NFL. Journalists can place interviewees in situations where it’s difficult to convincingly explain themselves. Watson has hired attorney Rusty Hardin to speak on his behalf on legal matters. Hardin has decades of experience, including high-profile cases involving Roger Clemens, James Harden and Wade Boggs.
18) How do you expect Watson to handle questions from media throughout the season?
He would be well advised to avoid the topic. The risk/reward calculus seems clear.
19) If the Browns believe Houston knew more about Watson’s legal situation than was revealed in trade talks, could they sue?
No. First, teams can’t sue each other and expect the lawsuit to not be tossed out of court. Per the league constitution, the commissioner has final say on team disputes. Second, Browns owners Dee and Jimmy Haslam issued a statement saying, “We spent a tremendous amount of time exploring and investigating the opportunity to trade for Deshaun Watson.” The Browns seem to believe they did their due diligence.
20) Could Watson sue the NFL if he is suspended?
Sure, but the track record for players suing the league over discipline isn’t encouraging. Peterson, Elliott and Tom Brady brought much-publicized lawsuits in which they raised serious questions about the fairness and process used by the NFL in judging them. All three lost. The CBA furnishes substantial discretion to the league, even when the league reaches conclusions that seem at odds with evidence. Stated differently, players have sought process rights that the NFLPA failed to negotiate in the CBA. Watson would face the same problem.