Agent Opinion: Dissecting and trying to make sense of Deshaun Watson’s disciplinary case

The long-awaited decision on whether Browns quarterback Deshaun Watson violated the NFL’s personal conduct policy was issued Monday by disciplinary officer Sue L. Robinson, who was jointly appointed by the NFL and NFLPA. Watson’s case was the first under a revamped process in the NFL’s collective bargaining agreement where commissioner Roger Goodell is no longer the sole arbiter of personal conduct discipline.

The retired US District Court judge suspended Watson six games for violating the policy without imposing a fine. Since the suspensions are without pay, Watson loses $345,000 (or 6/18 of the $1.035 million 2022 base salary) because he earns $57,500 each of the 18 weeks of the regular season. None of Watson’s $44.935 million signing bonus on the fully guaranteed, five-year deal worth $230 million he signed in March as part of the Texans’ trade is in jeopardy because of the way the deal is structured. Robinson also thought it necessary for Watson’s massage therapy to be limited to team-approved massage therapists for the remainder of his career.

On Wednesday, the NFL informed the NFLPA that it will appeal Robinson’s findings. The NFLPA has two business days to file a written response to the appeal. An appeal is limited as to why the discipline should be modified based on the evidentiary record. Goodell or his designee will hear the appeal. The NFLPA announced that it would not appeal prior to the decision and suggested that the NFL do the same.

Robinson found Watson in violation of engaging in sexual assault, conduct that poses a genuine danger to the safety and well-being of another person, and conduct that undermines or jeopardizes the integrity of the NFL in his 16-page ruling. Essentially, the NFL won its case against Watson.

The win seems hollow because Watson’s discipline seems light to many as the NFL was seeking an indefinite suspension where he could seek reinstatement after a year. For example, the National Organization for Women called the decision “unacceptable, insulting and dangerous, but not surprising.” During settlement negotiations prior to Robinson’s decision, the NFLPA rejected the NFL’s offer of a 12-game suspension and a $10 million fine.

Robinson clearly states at the beginning of his report that his decision was based on the evidence presented to him. Although 24 different women filed civil lawsuits against Watson alleging sexual misconduct by him during massage sessions that occurred while with the Texans, and he allegedly booked sessions with at least 66 women over a 17-month span, the case of the NFL was based on only four of the women who sued him.

Robinson relied on NFL precedent, which should have been expected since she is a former judge, in determining the discipline. A key finding by Robinson was that Watson’s conduct was non-violent sexual assault despite referring to her actions as egregious and predatory. Robinson did not explain why Watson’s behavior was not violent.

Due to the lack of violence, Robinson appears to be operating off of a three-game suspension as a disciplinary measure. That’s because Jameis Winston was suspended three games in 2018 for violating the personal conduct policy for groping an Uber driver, which was a negotiated agreement between the NFL and the NFLPA. It was the most severe personal conduct penalty for a nonviolent sexual assault.

Aggravating and mitigating factors were considered in determining discipline. Watson’s expressed lack of remorse and untimely notice to the NFL of the initial lawsuit filed against him were cited as aggravating factors. Cooperating with the NFL investigation, paying restitution (allegedly settling 23 of the 24 civil lawsuits), being a first-time offender and Watson’s reputation in the community before the incidents were cited as mitigating factors. The serial nature of Watson’s behavior does not appear to be taken for granted, as he is considered a first-time offender, while Winston’s punishment involved a single incident with one person.

Interestingly, Robinson mentions the fact that Goodell didn’t put Watson on the commissioner’s exempt list last season in the same paragraph as aggravating and mitigating factors. Watson was a healthy scratch last season. He was on the Texans’ 53-man roster, where he was paid his base salary of $10.54 million, but by mutual consent he didn’t wear a uniform for games and didn’t practice with the team. Since a potential trade with the Dolphins was not made before the midseason trade deadline, it could be interpreted that Watson was effectively serving a de facto suspension for the second half of the season.

Note that standards of fairness and consistency were crucial to Robinson’s ruling. The NFL’s argument that consistency is not possible because Watson’s conduct was unprecedented, so the punishment should be unprecedented, was unconvincing. The following excerpt may help shed light on Robinson’s determination of the length of Watson’s suspension.

Robinson wrote: “However, by ignoring past decisions because none involve ‘similar’ conduct, the NFL has not only equated violent conduct with nonviolent conduct, it has elevated the importance of the latter without any substantial evidence to support its position”. While it may be entirely appropriate to more harshly discipline players for nonviolent sexual conduct, I don’t think it’s appropriate to do so without noting the extraordinary change this position heralds for the NFL and its players.”

Robinson also noted that the NFL has been driven by “public outcry” in determining the discipline, which relates specifically to the Ray Rice case in 2014. Rice was initially suspended for two games under the personal conduct policy, but he was later suspended indefinitely after video of his domestic violence incident against his wife became public. The indefinite suspension was overturned on appeal because Rice was being punished twice for the same offense.

Robinson apparently found some parallels in Watson’s situation in which the NFL advocated a more severe sanction than prescribed in policy “without the benefit of fair notice” and “consistency of consequence.” It would not be surprising if there is a revision of the personal conduct policy where the punishments for nonviolent sexual assault are clearly stated because of the Robinson ruling, just as changes were made after Rice’s ordeal.

The NFLPA’s contention that league ownership and management have traditionally been held to a higher standard and will be subject to more significant discipline as specifically set forth in the personal conduct policy, but have escaped punishment for a similar or worse conduct seems to have resonated with Robinson. In a footnote, Robinson acknowledges that the policy is equally applicable to players, team owners and management.

The court of public opinion will clearly side with the NFL with an appeal because the consensus is that Watson’s punishment is too lenient. The NFL would be back in the position it was trying to avoid by becoming the final arbiter of personal conduct discipline in the first case under the revised process. An appeal would essentially undermine Robinson’s decision as Watson’s punishment would likely increase.

The NFLPA is reportedly ready to seek remedies through the legal system in response to the appeal. In the past, the NFLPA was able to obtain injunctions, which could allow Watson to start the season on the field. Ultimately, the NFLPA has been unsuccessful in getting the discipline overturned through legal proceedings, only in delaying the discipline.

Leave a Comment