Now that retired federal Judge Sue Robinson, serving as a neutral disciplinary officer, has suspended Deshaun Watson six games, Sportico answers 12 key questions on what to expect going forward. The answers draw from Sportico’s continued coverage of the controversy.
1. Did Watson or the NFL win the ruling?
That depends on how you define “win.”
Technically the NFL won, in that Robinson agreed with the NFL in finding Watson committed conduct detrimental to the league and he’s now set to miss six games. Watson, Robinson concluded, engaged in “pattern of behavior” that she labeled “egregious.”
To that end, Robinson found “sufficient circumstantial evidence to support the NFL’s contention” that Watson “had a sexual purpose” in contacting massage therapists. She further identified “sufficient evidence” that Watson “knew or should have known” that “any contact between his penis and these therapists was unwanted.” Watson, Robinson reasoned, “posed a genuine danger to the safety and well-being of another person,” partook in “predatory conduct,” and “acted with a reckless disregard for the consequences of his actions.”
Robinson cautioned, however, that “it is undisputed that Mr. Watson’s conduct does not” count as “violent conduct” as understood by past interpretations of league policies. The retired judge, quoting Roger Goodell’s 2015 order denying Tom Brady’s Deflategate appeal, stressed she was “bound” by “standards of fairness and consistency of treatment among players similarly situated.” In that light, she noted that in the aftermath of Ray Rice’s domestic violence in 2014 suspension, the league adopted “a presumptive 6-game suspension without pay for certain first-time violent offenders.” She noted that non-violent acts have sometimes warranted shorter suspensions.
The NFL erred, Judge Robinson found, in demanding an unprecedented suspension of at least one full season, plus an indefinite period thereafter. Such a suspension is more akin to a ban in that it could last for as long as the NFL wishes. The NFL insisted that there are no similarly situated players accused by so many persons. But Robinson found no textual support for a new type of punishment.
Robinson found particularly important the role of notice in changing policies. She reasoned the NFL is essentially asking to reinterpret rules as a vehicle to impose a tougher punishment on Watson. To the extent the league seeks a new interpretation, Robinson emphasized the league cannot retroactively apply it onto Watson. In a footnote, Robinson cited retired Judge Barbara Jones’ arbitration ruling for Rice and her finding “that even under the broad deference afforded to [the Commissioner] through Article 46, he could not retroactively apply the new presumptive penalty to Rice.”
Robinson added that while she faults Watson for failing to express remorse, “he is a first-offender and had an excellent reputation in his community prior to these events.” Watson also “cooperated in the investigation and has paid restitution.”
2. Will either side appeal, and what is the process?
Robinson’s decision can be challenged by Watson, the NFL or both.
Late Sunday, Watson’s representatives pledged he would not appeal. It’s unlikely that stance has changed given that Watson’s suspension is “only” six games. If Watson reconsiders, he would appeal the conclusion that he committed a violation and contend the suspension is excessive.
The NFL, which in a statement on Monday says it will “make a determination” on whether to appeal, is much more likely to appeal given that Watson’s suspension is far shorter than the league sought. The league might also feel pressure to take action given criticism about the NFL and domestic violence; even though a neutral party, Robinson, made the decision about Watson, that distinction might not quell criticism for the league. In an appeal the league would argue the suspension is too short considering the seriousness of Watson’s misconduct and the accompanying damage to the league’s business relationships with fans, sponsors and broadcast partners. Watson, meanwhile, would contend six games is not insufficient and matches the suspension Goodell imposed on Dallas Cowboys running back Ezekiel Elliott for alleged domestic violence.
Each side has three business days to file an appeal. The opposing side would then have two business days to file a response. An appeal hearing would be scheduled within 10 days.
NFL commissioner Roger Goodell, though neither neutral in this case nor an attorney, would hear an appeal. Alternatively, Goodell could assign a designee of his choosing to preside over the appeal.
This is a crucial point. The role of a neutral disciplinary officer marks a departure from arrangements in previous CBAs where the commissioner both punished and heard appeals. But even in this new system, the final word remains with Goodell or someone he picks.
3. If Goodell hears the appeal, doesn’t that guarantee the league will get what it wants?
No. The league enjoys an obvious advantage with Goodell or a designee hearing the appeal, but as discussed in another Sportico story, Goodell will probably feel constrained by Robinson’s ruling. If Goodell is perceived as marginalizing Robinson and simply imposing whatever the league wishes, it could discredit the entire process. Should Watson later sue the NFL, his attorneys would insist that Goodell/designee failed to follow the CBA, which contemplates a decisive role for the disciplinary officer (i.e., Robinson). In a case about application of the CBA, the NFL’s alleged failure to follow the CBA would be a crucial argument by Watson’s attorneys.
4. Is an appeal a do-over of Robinson’s review?
No. An appeal would be barred from bringing in material that’s not part of the evidentiary record considered by Robinson. Any arguments raised on appeal must connect to the evidentiary record and must explain why the amount of discipline should be modified.
5. How can the NFL suspend Watson when a grand jury declined to indict him, and when the lawsuits remain unproven?
Because it can. Watson’s suspension stems from a finding that he violated a workplace policy that his union and the NFL negotiated. The policy prohibits players from engaging in “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” Under federal labor law, Watson, an NFLPA member, is bound by the CBA.
Whether Watson broke criminal law, civil law or some other legal convention is not the applicable test.
Several players accused of misconduct with women—Ben Roethlisberger, Jarran Reed and Elliott—have been suspended without a legal ruling against them. Those players, the league reasoned, committed conduct detrimental and damaged the league’s brand.
6. How can the NFL suspend Watson when the league didn’t punish Daniel Snyder, Robert Kraft or Jerry Jones despite allegations they mistreated women?
Once again, because it can. Watson’s representatives reportedly argued to Robinson that it is hypocritical for the quarterback to face a lengthy suspension when those three NFL owners were not punished, let alone suspended, for off-field controversies involving women.
There are hurdles for this type of legal argument.
First, as mentioned above, the evidentiary record is closed. If the record doesn’t support such an argument, it would be barred on appeal.
Second, Goodell could reason that the argument is irrelevant in the context of applying a workplace policy contained in a CBA. Article 46—the source of law for Watson’s punishment—governs players, not owners.
On the other hand, the NFL constitution—which governs owners—contains a similar provision. Per Article 8.6, the commissioner can take measures “he deems necessary and proper” to punish for “conduct detrimental.” Goodell declined to punish Kraft, who faced misdemeanor solicitation charges in 2019 until those charges were dropped after a court found the evidence was illegally obtained. Five years earlier, Jones settled a lawsuit brought by a woman who alleged he kissed her without consent (his team also recently settled a lawsuit brought by cheerleaders who alleged a team executive had watched them undress). In recent Congressional testimony, Goodell suggested that Snyder, who is accused of sexual misconduct involving former employees, has been punished—if indirectly—by his team’s $10 million fine and Snyder ceding control of the franchise to his wife, Commanders co-CEO Tanya Snyder.
That’s not to say Goodell has never punished owners for conduct detrimental. In 2018, Goodell fined Jerry Richardson, the outgoing Carolina Panthers owner, $2.75 million for workplace misconduct involving female employees. In 2014, he suspended Indianapolis Colts owner Jim Irsay for six games after he pleaded guilty to a misdemeanor charge for operating a vehicle while under the influence.
Does it matter that Goodell gave some owners a pass? Wouldn’t that seem inconsistent?
Those are questions Goodell or his designee will answer, but that person might reason those owners’ situations are materially different from the one faced by Watson. Watson has been accused by more than two dozen women of sexual misconduct and other unlawful acts. He has been the focal point of a damaging HBO Real Sports feature and, according to an extensive investigation by The New York Times, met with at least 66 women for massages over a 17-month period. Watson’s situation seems incomparable to any of the owner cases.
7. Could Watson voluntarily testify under oath in his appeal and deny the accusations?
Yes, but doing so would bring risk and uncertain upside.
Brady voluntarily testified under oath in his appeal to Goodell in the Deflategate controversy. That meant Brady could have been charged with the crime of perjury if he knowingly lied. In his testimony, Brady explicitly denied partaking in any deflation scheme. However, that testimony appeared to make no difference to Goodell, who upheld the suspension.
Brady’s testimony also concerned a relatively trivial topic that had no legal consequences outside the world of football. It would be a different story for Watson, whose testimony would concern serious allegations involving unwanted sexual advances and intimidation. The testimony he gives could potentially be used by Tony Buzbee and other attorneys for the plaintiffs.
8. Could Watson sue the NFL?
Yes, but he’d face challenging odds in mounting a successful case.
For starters, Watson would not be able to effectively sue until an appeal is resolved. If he sues before that time, a court would dismiss the complaint on grounds it is preempted by a labor agreement. A union member must exhaust their internal appeals before filing a lawsuit.
NFL players also have a poor track record of challenging disciplinary rulings in court. Brady, Elliott and Adrian Peterson all petitioned federal courts to vacate their suspensions. All failed.
There are two interrelated hurdles for players seeking federal courts to vacate suspension.
First, federal law obligates a judge to review the decision of an arbitrator (here, Goodell or his designee) with great deference. To prevail, Watson would need to show there was a glaring and meaningful defect in the process used to judge him. More specifically, he’d have to show the arbitration decision reflected corruption or fraud, or the ruling is so outside the boundary of basic principles of law it must be vacated.
Even though Brady convincingly challenged the NFL’s “facts” and offered a persuasive point about lack of notice—no player had previously been fined, let alone suspended four games, for alleged equipment tampering—the U.S. Court of Appeals for the Second Circuit nonetheless reasoned that Goodell, as the arbitrator, determines applicable facts and enjoys broad discretion.
Keep in mind, too, that Brady v. NFL is precedent in the Second Circuit (which governs New York’s federal district courts), the jurisdiction where the NFL would attempt to litigate any claims by Watson. The NFL, in fact, sued Brady in the Southern District of New York to enforce Goodell’s arbitration decision before Brady sued the league in Minnesota’s federal district court, where the NFLPA thought it was favored. The NFL won the battle of jurisdiction and ultimately won the case. Watson telling a court something to the effect of, “I didn’t do it, the suspension is too long and what about those owners,” likely wouldn’t take him far.
Watson’s situation is also potentially hampered by the new structure of the NFL appeals process. No longer is Goodell “judge, jury and executioner.” Robinson is a former federal judge and federal prosecutor and has received awards for her work in the legal profession. Her participation in the process makes it more authoritative, and the process would likely be given more deference by a judge as a result.
9. If Watson’s chances in court would be unfavorable, why would he bother suing?
Watson would have at least three reasons to sue.
First, he could win. As mentioned above, if his attorneys could portray the NFL as failing to credibly apply the CBA, such as by Goodell giving Robinson’s ruling short shrift, his case could have traction. Watson and the NFLPA have also retained famed sports litigator Jeffrey Kessler, who defied expectations and defeated the NCAA before the U.S. Supreme Court last year. If there’s a path to victory, there’s a good chance Kessler will find it.
Second, though other players have come up short in their lawsuits, Watson’s would be the first lawsuit under the revised disciplinary process. As a way of downplaying previous player losses in court, Kessler would argue there is no applicable precedent for a new policy.
Third, the case could lead to the disclosure of evidence the league prefers to remain sealed. For example, litigation could lead to the release of the transcript for the hearing before Robinson. In 2015, litigation over Brady’s suspension led to the release of a transcript. Here, the transcript might contain arguments by Watson that paint the aforementioned owners, and possibly others, in a negative light. If the league wishes to avoid any unflattering disclosures, it will likely need to reach a deal with Watson before litigation commences.
10. Could the NFL suspend Watson a second time after he serves his first suspension?
Yes, if new information surfaces that Watson engaged in conduct detrimental. Robinson might not have been made aware of all the potential allegations that will be brought against Watson. Buzbee has repeatedly hinted there are other accusers who could sue, and the fact that Watson faces additional lawsuits more than a year after the first set of lawsuits is telling.
11. Could the NFL investigate the Houston Texans for their alleged role in helping Watson?
Yes, though that would involve a separate review process that is outside the purview of Robinson’s work. The team has reached settlements with 30 women who allege the team was negligent in providing a nondisclosure template to Watson, who is portrayed as relying on team resources to commit unlawful acts. Last month, Toi Garner sued the Texans for negligence and other claims in Harris County, Texas. The complaint describes Garner as a flight attendant and massage therapist in training whom Watson is accused of assaulting and harassing.
The Texans say they will address Garner’s allegations but insist they have “fully supported and complied with law enforcement and the various investigations.” If the league finds the Texans engaged in conduct detrimental, the team could be fined or even stripped of draft picks.
12. If the Browns cut Watson, do they have to pay him?
It would be extremely surprising for the Browns to release Watson. They traded three first-round picks, a third-round pick and a fourth-round pick for Watson and a fifth-rounder.
Browns officials also insisted they performed a thorough background check on Watson, who faced 22 lawsuits at the time of the trade, and concluded he’d be a valuable addition. The possibility of a suspension has long been a topic of conversation in NFL circles, too. The Browns, it seems, knowingly accepted the risk. Most likely, the Browns will wait for Watson to become eligible to play and, in the meantime, hope his suspension is reduced on appeal.
But if the Browns cut ties with Watson, they would attempt to void guaranteed payments. The Browns could argue that the two most recent lawsuits concern risks that Watson failed to disclose before he signed the contract. Watson and the NFLPA, however would maintain the Browns knew what they were getting into, and that 24 lawsuits versus 22 lawsuits is not a meaningful distinction. They’d also replay the Browns’ publicly hailing the due diligence their staff and investigators performed.
The Browns will receive financial relief when Watson serves the suspension. He’ll lose the applicable proportion of his base salary. If Watson’s cut, however, he wouldn’t serve the suspension until he joins an NFL roster. It’s unclear when or if another team would sign him.
(This story has been updated to incorporate Judge Robinson’s written decision.)
