Introducing the Agent: Dissecting and Trying to Make Sense of the Deshaun Watson Disciplinary Case

Introducing the Agent: Dissecting and Trying to Make Sense of the Deshaun Watson Disciplinary Case

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

The retired U.S. District Court judge suspended Watson for six games for violating the policy without imposing a fine. Because the suspensions are without pay, Watson forfeits $345,000 (or 6/18 of a $1.035 million 2022 base salary) because he earned $57,500 each of the 18 weeks of the regular season. None of Watson’s $44.935 million signing bonus in the fully guaranteed, five-year, $230 million contract he signed in March as part of the trade from the Texans is in jeopardy because of the way the contract is structured. Robinson also believes it is necessary to limit Watson’s massage therapy to team-approved massage therapists for the rest of his career.

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

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

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

Robinson clearly stated at the beginning of her report that her decision was based on the evidence presented to her. Although 24 different women filed civil lawsuits against Watson alleging inappropriate sexual behavior on his part during massage sessions that took place while he was with the Texans, and he reportedly booked sessions with at least 66 women over a 17 month, the NFL’s case was based on just four of the women who sued it.

Robinson relied on NFL precedent, which was to be expected since she is a former referee, in determining the discipline. Robinson’s key finding is that Watson’s behavior was non-violent sexual assault, even though he called his actions crude and predatory. Robinson did not elaborate on why Watson’s behavior was not violent.

Because of the lack of violence, it appears that Robinson is operating from the baseline of a three-game suspension as discipline. That’s because Jameis Winston was suspended three games in 2018 for violating the personal conduct policy for groping a female Uber driver, which was a negotiated settlement between the NFL and the NFLPA. It was the most severe personal conduct penalty for non-violent sexual assault.

Aggravating and mitigating circumstances are taken into account when determining disciplinary action. Watson’s lack of expressed remorse and failure to notify the NFL of the original lawsuit filed against him were cited as aggravating factors. Cooperating with the NFL’s investigation, paying restitution (probably settling 23 of the 24 civil cases), 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 appears to be disregarded, as he is considered a first-time offender, while Winston’s punishment involves a single incident with one person.

Interestingly, Robinson mentions Goodell’s failure to place Watson on the commissioner’s waiver 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 was out of uniform for games and did not practice with the team. With a potential trade to the Dolphins not happening by the midseason trade deadline, it could be interpreted as Watson effectively serving a de facto suspension for the second half of the season.

Note, the standards of fairness and consistency were critical to the Robinson decision. The NFL’s argument that consistency was not possible because Watson’s conduct was unprecedented, so the punishment must be unprecedented, was not found to be persuasive. The following passage may help to shed light on Robinson’s determination of Watson’s suspension length.

Robinson wrote, “By ignoring past decisions as none involving ‘similar’ conduct, however, the NFL has not simply equated violent conduct with nonviolent conduct, but has elevated the latter’s importance without any substantial evidence to support its position.” while it may be entirely appropriate to discipline players more severely for nonviolent sexual conduct, I do not believe it is appropriate to do so without notice of the extraordinary change this position portends for the NFL and its players.”

Robinson also noted that the NFL is guided by “public outcry” when determining discipline, specifically referring to the Ray Rice case in 2014. Rice was initially suspended for two games under the personal conduct rule, but was later suspended for an undetermined amount of time after a video of his domestic violence incident against his wife became public. The indefinite suspension was overturned on appeal because Rice was penalized for the same offense twice.

Robinson apparently found some parallels in Watson’s situation, where the NFL advocated harsher punishment than the policy prescribed “without the benefit of fair notice” and “sequence of consequences.” It would not be surprising to see a revision of the personal conduct policy where penalties for non-violent sexual assault are clearly spelled out because of the Robinson decision, just as changes were made after the Rice trial.

The NFLPA’s argument that the league’s ownership and management have traditionally been held to a higher standard and will be subject to more substantial discipline, as expressly stated in the personal conduct policy, but have avoided punishment for similar or worse conduct, seems to resonate with Robinson. In a footnote, Robinson acknowledges that the policy applies equally to players, team owners and management.

Since the NFL exercises appeal rights, the court of public opinion will obviously side with the NFL on appeal. The consensus is that Watson’s sentence is too lenient. The NFL is back in the position it tried to avoid by becoming the final arbiter of personal conduct discipline in the first case under the revised process. In hindsight, the parties may have been better served with the process working in reverse, where Goodell handles the initial discipline and a neutral independent party has the final say.

The appeal essentially undermines Robinson’s decision, as Watson’s sentence will almost certainly be increased. Robinson gave the NFL an opportunity to plausibly apply more discipline, calling Watson’s behavior predatory and “more outrageous than any the NFL has looked at.”

The NFLPA is reportedly ready to seek remedies through the legal system in response to the complaint. In the past, the NFLPA was able to obtain an injunction that could have allowed Watson to start the season on the field. In the end, the NFLPA was not successful in overturning the discipline through legal proceedings, only in delaying the discipline.

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