The NFL announced on Wednesday it has appealed Monday’s decision to suspend Cleveland Browns quarterback Deshaun Watson for six games. Retired federal Judge Sue Robinson, serving as a neutral disciplinary officer, rendered the decision.
The league does not challenge factual findings. In a statement released on Wednesday, the NFL notes “the factual findings of the Disciplinary Officer are binding and may not be appealed.”
However, the league finds the suspension length insufficient. It has contended that Watson should be suspended at least one year plus an indefinite period thereafter. Although the appeal will go to commissioner Roger Goodell or a designee of his choosing, it could set off a lengthy and risky legal battle with Watson and the NFLPA.
Robinson agreed with the NFL that Watson engaged in conduct detrimental but disagreed about the penalty. She concluded that the league sought a penalty that was unsupported by previous conduct matters and is not contemplated in the CBA.
Robinson stressed that even if the commissioner enjoys substantial discretion in defining misconduct and in determining a penalty, the league cannot engineer a new policy in real time and then retroactively apply it (that is, apply it to Watson for misconduct that already occurred). The problem with retroactive application is that it violates the legal principle of notice. The player is not made aware that if he commits misconduct, he could face a suspension that lasts at least one year and only ends when the league says so. “It is inherently unjust to change the penalties for such conduct after the fact,” Robinson wrote.
The length of Watson’s suspension has faced sharp criticism that it seems too light. Although not charged with a crime and not found civilly liable by any court, the former Houston Texans QB has been accused by multiple massage therapists of assault. Robinson concluded that Watson engaged in “predatory behavior” that she found “egregious.” Yet Watson will be suspended only two more games than Tom Brady, who seven years ago was accused of a comparatively trivial offense, tampering with football equipment. Watson will also miss far fewer games than Atlanta Falcons wide receiver Calvin Ridley, who has been suspended at least through the 2022 season for betting on NFL games.
Watson also faces a relatively inconsequential financial penalty. His $230 million contract with the Browns is structured to include a $45 million signing bonus and 2022 base salary of “only” $1.04 million. Suspensions only cost the player the applicable proportion of base salary, meaning Watson will lose about $345,000—a fraction of a percent of his massive contract.
Per Article 46 of the CBA, the NFL had three days to appeal. Watson now has two business days to file a response. An appeal hearing will be scheduled within 10 days. Goodell can preside over the appeal or delegate that responsibility to another person. Either way, while Robinson was neutral, the person presiding over the appeal will be associated with the NFL.
The league argued to Robinson that Watson’s situation is unprecedented, given the numerous accusers. Expect the league to reiterate that argument in the appeal. It is crucial for the league to counter what Robinson characterized as NFL inconsistency, namely seeking to impose a much harsher penalty on Watson than other players have experienced.
The league is also poised to insist that the CBA imposes no limit on the number of games a player can be suspended for conduct detrimental. From that lens, Robinson envisioned a limitation that lacks textual support.
Much attention has been directed towards Robinson writing that Watson engaged in “non-violent” sexual assault. Robinson used that phrase based on how it has been applied in past NFL cases. Tellingly, she also wrote, “It is undisputed that Mr. Watson’s conduct does not fall into the category of violent conduct that would require the minimum six-game suspension.” Her reference to “undisputed” suggests the NFL does not contend otherwise.
Assuming Goodell or his designee increase the suspension, it would likely set off federal litigation, beginning with a jurisdictional battle. Watson and the NFLPA, who have retained prominent sports litigator Jeffrey Kessler, would petition a federal court to vacate the appeal ruling (arbitration decision), and the NFL could petition a different federal court to enforce it. Kessler would likely try to avoid litigation in New York, where Brady v. NFL is precedent and stands for the proposition that the commissioner, as arbitrator, enjoys broad discretion. The NFL, meanwhile, would maintain the litigation must be heard in New York where the league is based.
On the surface, Kessler would face difficult odds defeating the NFL since federal law obligates a judge to accord high deference to arbitration decisions. Brady, Ezekiel Elliott and Adrian Peterson all tried and all lost. None could show that the process was deeply flawed or that the decision was far outside the boundary of basic legal principles.
But Watson’s situation is different in at least two important ways.
First, the factfinder and disciplinary officer was not Goodell, but a retired federal judge. This reflects the new CBA, which modified player conduct matters to include a neutral officer. Kessler would contend previous player cases are not determinative when the disciplinarily system has been so substantially changed.
Second, a federal court would review how convincingly Goodell, who is not an attorney, or his designee articulated that Robinson—who has more than a quarter of century of experience as a judge—got it wrong. Robinson carefully explained why, in her view, the NFL was attempting to reinterpret rules on the fly. If Goodell or his designee offer a non-persuasive response, a federal court might be more inclined to side with the NFLPA.
Litigation would also pose the risk of collateral damage.
For starters, litigation would likely result in the release of the transcript for the hearing before Robinson. This happened in Brady’s case. It’s been reported that one of Watson’s arguments before Robinson was to contend that Goodell has declined to meaningfully punish owners accused of sexual misconduct or harassment, including three influential owners: Dallas Cowboys owner Jerry Jones, New England Patriots owner Robert Kraft and Washington Commanders owner Daniel Snyder. The league presumably does not want a transcript released that might embarrass owners or Goodell.
The losing side would almost certainly appeal the district court’s ruling to the U.S. Court of Appeals for the Second Circuit. The league has favorable precedent there with the Brady case. Watson’s case could imperil that precedent.
These are risks the NFL accepts in attempting to overrule Robinson. Alternatively, to the extent the league wishes to avoid a repeat of a player being, in the view of many, punished too lightly, it can negotiate new policies with the NFLPA. That would avoid the problems of unilateral action, notice and retroactive application identified by Robinson.
Eben Novy-Williams contributed to this story.