Deshaun Watson Suspension: Examining Process, Precedent

Aug 01, 2022

Our Business of Football columnist analyzes the factors that influenced Sue L. Robinson’s decision on the Browns’ quarterback.

Deshaun Watson has been suspended six games for violation of the NFL’s personal conduct policy. While a lengthy suspension—it is 35% of the 2022 regular season—my initial reaction is that Watson was treated lightly under the new disciplinary system that has been collectively bargained by the NFL and NFL Players Association. While we have heard a lot about Watson’s misbehavior toward women stemming from two dozen civil suits against him for over a year, that behavior was not judged to be excessive compared to previous precedent involving the personal conduct policy.

Several players have been disciplined similarly or more harshly under the policy during Roger Goodell’s tenure as NFL commissioner. And the vast majority of those players are said to have mistreated only one woman, perhaps two. Watson has been described as mistreating many women and has reportedly made financial settlements with 23 of them. Four of those women testified against Watson in the disciplinary hearing. Yet Watson’s discipline is the same, or even less, than previous cases involving one woman.

The process

The disciplinary process to determine punishment for Watson was different than in previous cases involving the personal conduct policy, as per the 2020 collective bargaining agreement between the NFL and the NFLPA.

The two sides presented the case to a disciplinary hearing officer, who was jointly selected by the NFL and NFLPA, former federal judge Sue L. Robinson. She heard three days of testimony and requested post-hearing briefs from each side, submitted July 12.

I have been critical of the NFLPA for what I perceive as deficiencies in recent CBAs, but I must give credit where credit is due here. The issue of commissioner discipline and Goodell’s overreach had been a bargaining priority for the NFLPA for the past 15 years, and the process finally changed, albeit in part also due to Goodell’s own bosses. NFL owners such as Jerry Jones have questioned Goodell’s role in discipline, preferring him to stay more removed from player conduct. Whether through the efforts of the NFLPA or the fact that NFL owners saw this as an “easy give” in collective bargaining, the system did change.

While Goodell is no longer judge (that is the “real” former judge), jury (that is also Judge Robinson) and “executioner,” he is still the appellate judge. And that is still the most powerful person in the process, if it gets to that point.

Even with those appellate powers, however, we will see what happens with a potential appeal. While a real court would show deference to a private system of arbitration, the court of Goodell may show deference to Robinson’s experienced and informed perspective and diligence with this case, and let the decision stand without appealing.

The “non-violent distinction”

As a lawyer, I look at precedent first, and the precedent for Watson was, I thought, not good. No, Watson does not face criminal charges, but neither have multiple players given lengthy suspensions in the Goodell era for misconduct toward women. There were no criminal charges against Ben Roethlisberger (six-game suspension, reduced to four), Ezekiel Elliot (six-game suspension), Kareem Hunt (eight-game suspension) or even Ray Rice (indefinite suspension, later overturned). Even with Watson’s camp able to distinguish those cases from Watson as having more coercion, those were cases involving one woman each. Watson is reported to have sought out 66 women for massages, and faced 24 civil lawsuits before settling 23 of them. And there was corroborating evidence from Watson, at least in news reports, that he texted therapists after sessions expressing some remorse for what happened in the massage.

As for the reports that the NFL presented “only” four women as witnesses in the hearing, the hearing took almost three full days; the NFL made a decision to streamline dozens of cases into, perhaps, the most graphic ones.

In my reading of the opinion, Robinson makes a curious but vitally important distinction between the cases above and the Watson case. While she refers to Watson’s conduct as 1) egregious, 2) predatory, and 3) sexual assault, she does not ascribe to using the above cases as precedent. Why, you ask? Well, there appears to be a determination made—without explanation in the opinion—that Watson’s conduct was “non-violent,” and that the largest NFL sanction for non-violent violations of the personal conduct policy was a three-game suspension (for an unnamed player). Indeed, Robinson scolds the NFL for asking for a “post-hoc” punishment not relevant to the applicable situation.

This is curious and fodder for discussion of whether Watson’s conduct in those massage sessions was truly “non-violent.” I am sure that many would disagree with that assessment.

It also seems fodder for the NFL to appeal to—you guessed it—Goodell. To me, the only reasons the NFL would not appeal are to show complete deference and respect to the newly hired Robinson, and/or a directive from the owners to end this and get the focus back on the field.

One final nugget did come out from the opinion. Watson is barred from seeking massage from therapists outside of the team for the rest of his career. Of course, this makes sense for someone who sought out dozens of women on Instagram. More importantly, it tells us that Robinson accepts and agrees with the premise that Watson cannot be trusted, that he needs to have his behavior in reaching out to massage therapists curbed and restrained. As for the sanction, she says it is mandated as a requirement for reinstatement, which, I would assume, means at the end of his six-game suspension. But what about if he acts out sometime after that? That is unclear.

Thus, we are left with an arbiter who saw Watson’s conduct as egregious and made note to restrain him from seeking massages from women not affiliated with the Browns. Yet the penalty seems light. Perhaps it is not light in Robinson’s eyes, as she has a baseline different from the NFL and Goodell. What we are left with is a strong sense that Judge Robinson appears a much more sympathetic arbiter to the players’ side than Judge Goodell.

The process worked for Watson’s side. Although they may profess disappointment on the length of the suspension, behind closed doors they are likely pleased, so much so that they preemptively put out a joint statement with the NFLPA that they would not appeal the ruling, calling on the NFL to do the same. In other words, they were suggesting the NFL not appeal the case back to Goodell, as the CBA allows. Now we wait and see what the NFL will do.

Browns and Texans money put to use

On the morning of the discipline decision, it was reported that Watson had settled three more civil suits against him, bringing the total number of suits settled to 23, with one suit against him outstanding. It is hard to speculate as to the amount of each settlement, or even as to whether they are all a similar amount, but there are now 53 suits settled arising from Watson’s behavior: 23 by Watson and 30 by the Texans.

Of course, Watson has plenty of funds to settle these suits, thanks to his ability and to the Texans and Browns. He made $10 million last year while staying away from the Texans. Some have suggested that last year should be considered a de facto suspension due to the fact he did not play. Please. Watson did not want to play for Houston and was paid handsomely to not do so. That is not a suspension; that is a vacation.

If the suspension is not increased on appeal, Watson will make $46.65 million in 2022—the third-highest amount for any NFL player—for being on Cleveland’s roster for 11 games. The Browns minimized the financial hit to Watson with a structure of primarily signing bonus in the first year—a year nearly certain to include a suspension—and minimum salary, the only monies subject to suspension forfeiture. As to Browns’ supporters who have said that the team structures all its contracts that way: Have the Browns ever structured a contract that way for a player facing certain suspension under the NFL personal conduct policy? The Browns, flush with cap space, had an opportunity here to make a statement; they decided not to, whether due to a competitive environment to get the player or otherwise.

Watson used money from the Texans and Browns to settle lawsuits and now will suffer only a $345,000 financial loss (on a $230 million contract) for his actions.

Final thoughts

Goodell’s tenure as commissioner will be remembered decades from now for his being, in good part, the Conduct Commissioner. Personal conduct and role-modeling have been far more important to him than to previous NFL commissioners or commissioners in other major sports (MLB’s two-year suspension of Trevor Bauer notwithstanding).

Goodell has often been accused of being too harsh with player discipline, although in 2014, after the Ray Rice video came out, he was accused of being too soft with a two-game suspension. The ultimate problem for Goodell has been that discipline has been seen as too arbitrary. Although it is always hard to compare sins and their degree of bad behavior, the appearance of capricious discipline for things such as domestic violence, deflation of footballs, making (legal) sports bets, etc., has not been a good look.

In this case, however, Goodell was removed. The new process puts the spotlight on a former judge selected by both the players and the owners. Her decision is being criticized by many, including me, but it is not criticism of the NFL or Goodell (although perhaps criticism of the lawyers representing the league). Goodell is, for now, removed from the process, and that registers as a “win” for the players.

I am still left with this question of Robinson: On what basis did she determine Watson’s actions were of a non-violent nature? It’s a determination that was absolutely crucial in the meting out of discipline here.

Barring injury, Watson will now play the majority of the Browns’ games this year and all games in the four subsequent years for the team, which clearly saw this as a long term play.

The negative PR will eventually die down and the inexorable following of what happens on the field, not off of it, will overwhelm this news. Even as the suspension was announced, many focused on the games to be missed by Watson, the game for which he’ll return, etc.

The power of the NFL product and devotion overcome even the most negative of news. That will happen here at some point, although the stain on Watson, the Browns and the NFL is fresh now. The preseason starts this week, with the season coming soon. The detox from the Watson episode will now begin.

As I’ve said for many years in this space, the business of the NFL always wins.

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