The NFLPA raises the notion of Deshaun Watson playing the first week, but it remains highly unlikely

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As the NFL’s appeal to the NFL of Browns quarterback Deshaun Watson’s six-game suspension moves toward an “expedited” resolution (by rule), the NFL Players Association The NFL appears to be trying to create whatever leverage it can for a settlement. This effort includes raising the notion to some in the media that Watson could play in Week One against the Panthers, if/when a federal lawsuit is filed, and if/when a federal judge determines that Watson should be allowed to play while the product litigation.

It is a weak and flimsy argument, and it will most likely not prevail in court. It also won’t do much to persuade the NFL that it should settle with the union now, because the NFL surely realizes the flaws in this approach.

The basic argument seems to go like this: Because the NFL appealed Watson’s six-game suspension by Judge Sue L. Robinson, that punishment goes away. He will be replaced (as the story goes) by whatever Peter Harvey, the Commissioner’s appointee, decides to impose. So when it comes time to take the NFL to court (and in turn try to delay the start of the suspension), a court-issued preliminary injunction would start from week one, not week seven.

There are several serious problems with this claim. First, the NFL did not question the six-game suspension. The NFL argued only that six games is not enough. The NFL’s appeal centers on whether the suspension should be extended beyond the first six weeks.

Second, the NFLPA did not appeal the decision. That would have been the safest and best way to put Week One through Week Six on the line to get a court order allowing Watson to play. The union apparently balanced public relations concerns (it stated Sunday night that it would not challenge Judge Robinson’s ruling) and legal strategies by deciding not to challenge the first six weeks by filing its own appeal. And so the union will instead make the argument (as flimsy as it may be) that a league appeal works as a clarification of the covers regarding the unchallenged six-week ban.

Third, nothing in the Personal Conduct Policy indicates that an appeal automatically wipes the previous punishment off the books. In effect, the policy expressly establishes that the appeal “may annul, reduce, modify or increase the previously imposed sanction.” This means that the previous punishment survives the mechanical act of appealing the decision, and the question in this specific case is only whether the punishment will “increase” beyond six games.

The argument that prior discipline disappears on appeal could lead to very strange results. Let’s say the union appealed and the league didn’t. Does anyone think that, on appeal, the final sentence could have been an increase in the sanction beyond six games? In this case, does anyone think the NFL’s appeal could result in anything less than six games, especially when the NFL specifically asked for a raise?

Fourth, Judge Robinson’s factual conclusions are binding on the appellate process. He found that Watson did what he was accused of doing, that he committed a “non-violent sexual assault” against four massage therapists, resulting in three separate violations of the Personal Conduct Policy. In previous cases involving a suspension that was delayed by the presiding judge pending the outcome of the litigation (e.g, Tom Brady, Ezekiel Elliott), the NFLPA disputed the conclusion that the player had done anything wrong. Here, the CBA makes Judge Robinson’s findings of fact fully binding on the appellate process. The union at this time cannot deny that Watson violated the policy. The only question is whether the penalty will stay at six games or become more than six games.

The NFLPA seems to believe that the general circumstances have changed, now that the process includes an independent disciplinary officer who conducts the hearing, determines the facts and issues the punishment. But the union agreed to allow the Commissioner or his designee to continue to handle the appeal. Past fights played out in court before the union agreed to a procedure that says the decision of the commissioner or his designee “shall be final and binding on all parties.” Union negotiators accepted this language, and the base voted to accept a new labor agreement that included it. It will be much more difficult to challenge all the results of this process in court, from now on.

That leads to the fifth point. A preliminary injunction, which prevents (for example) the NFL from implementing a suspension until the lawsuit is resolved, is an extraordinary remedy. It’s a high bar. The analysis considers multiple factors, including the likelihood of success on the merits of the case. The new CBA makes it much less likely that the NFLPA will prevail in favor of Watson.

Another factor to consider when issuing an injunction is whether the damage suffered by the player is “irreparable.” With Watson’s six-game suspension a foregone conclusion, he doesn’t suffer any harm by sitting out the first six games of the season.

Finally, it’s important to remember that the league has managed to secure (through the Tom Brady case) a very favorable legal precedent in the US Court of Appeals for the Second Circuit, which encompasses the federal courts in New York. The league, knowing full well that litigation is looming, should be ready to file a declaratory judgment action in federal court in New York, seeking confirmation that the internal procedural handling was adequate. In what would be a possible race to court, the NFL will know when to present its case, because the NFL will know when Peter Harvey rules on it. All the league needs to do is send the text message to whoever is ready to make the case, and voila.

Will the NFLPA pull out any and all stops to fight the league? if/when Watson receives a much longer suspension? The fact that the union is floating the idea that Watson could play in the first week suggests multiple aggressive efforts will be made. However, aggressive and successful are two very different things. In the cases of Brady and Elliott, the NFLPA was ultimately unsuccessful. The 2020 collective bargaining agreement makes Deshaun Watson fight harder, not easier, for the union and the player.

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