Agent’s Take: Analyzing and trying to understand 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 officer Sue L. Robinson, who was appointed jointly by the NFL and the NFLPA. Watson’s case was the first under a revamped process in the NFL collective bargaining agreement where commissioner Roger Goodell is no longer the sole arbiter of personal conduct discipline.

The retired U.S. District Court judge suspended Watson six games for violating the policy without fining him. Since the suspensions are without pay, Watson is missing out on $345,000 (or 6/18 of his $1.035 million 2022 base salary) because he makes $57,500 each of the 18 weeks in the regular season. None of Watson’s $44.935 million signing bonus on the fully guaranteed, five-year, $230 million contract he signed in March as part of the trade from the Texans is at risk because of the contract structure. Robinson also felt it necessary to limit Watson’s massage therapy to team-approved massage therapists for the remainder of his career.

Either party, Watson or the NFL, has three business days to appeal Robinson’s findings, according to the CBA. A response to an objection is expected within two business days later. The appeal is limited to why the discipline should be modified based on the evidence. Goodell or his representative would hear the appeal.

The NFLPA announced it would not appeal the ruling and suggested the NFL do the same. The NFL has reportedly not decided whether to appeal. The deadline for filing an appeal is Thursday.

Robinson found Watson in violation by engaging in sexual assault, conduct that poses an actual risk to the safety and welfare of another person and conduct that undermines or endangers the integrity of the NFL in her 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 apply for reinstatement after a year. For example, the National Organization for Women called the decision “unacceptable, offensive and dangerous, but not surprising.” During settlement talks 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 early in her report that her decision was based on the evidence presented to her. Although 24 different women filed civil lawsuits against Watson alleging sexual misconduct by him during massage sessions held while he was with the Texans, and he reportedly booked sessions with at least 66 women over a 17-month period, the NFL’s case was based to only four of the women who sued him.

Robinson relied on NFL precedent, which should have been expected since she was a former referee, in determining the discipline. A key finding of Robinson’s was that Watson’s conduct was a non-violent sexual assault, even though he described his actions as outrageous and predatory. Robinson did not elaborate on why Watson’s behavior was nonviolent.

Because of the lack of violence, Robinson appears to be serving discipline from a baseline three-game suspension. That’s because Jameis Winston was suspended three games in 2018 for violating the personal conduct policy for fondling 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 factors were considered in determining discipline. Watson’s lack of expressed remorse and failure to timely notify the NFL of the original lawsuit filed against him were cited as aggravating factors. Cooperating with the NFL’s investigation, paying restitution (possibly settling 23 of the 24 civil lawsuits), being a first-time offender and Watson’s reputation in the community prior to 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 was for a single incident.

Interestingly, Robinson mentions Goodell’s failure to place Watson on the Commissioner’s exempt list last season in the same paragraph as the aggravating and mitigating factors. Watson was healthy last season. He was on the Texans’ 53-man roster, where he was paid his $10.54 million base salary, but by mutual agreement did not wear a uniform for games or practice with the team. Since a potential trade with the Dolphins did not materialize by the midseason trade deadline, it could be interpreted that Watson was essentially serving a de facto suspension for the second half of the season.

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

Robinson wrote: “Ignoring prior decisions because none involve ‘similar’ conduct, however, the NFL has not simply equated violent conduct with non-violent conduct, but has elevated the importance of the latter without any substantial evidence to support the position of. while it may be entirely appropriate to punish players more severely for non-violent sexual conduct, I do not believe it is appropriate to do so without noting the extraordinary change this position portends for the NFL and its players.”

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

Robinson apparently found some parallels in the Watson situation where the NFL was arguing for a harsher penalty than the “without the benefit of fair notice” and “consequence of consequences” policy. It would not be surprising to see a revision of the personal conduct policy where punishments for nonviolent sexual assault are clearly stated because of the Robinson decision, just as changes were made after the Rice trial.

The NFLPA’s argument that league ownership and management have traditionally been held to a higher standard and would be subject to more significant discipline as specifically spelled out in the personal conduct policy, but have escaped punishment for similar or worse conduct, appears to resonate with Robinson. On a side note, Robinson acknowledges that the policy applies equally to players, team owners and management.

The court of public opinion will clearly side with the NFL on appeal because the consensus is that Watson’s punishment is too lenient. The NFL would return to the position it sought to avoid by becoming the final arbiter of personal conduct discipline in the first instance under the revised process. An appeal would effectively undermine Robinson’s decision since Watson’s punishment would certainly increase.

The NFLPA is reportedly prepared to pursue remedies through the legal system should there be an appeal. In the past, the NFLPA has been able to obtain injunctive relief, which could have allowed Watson to start the season on the field. Ultimately, the NFLPA failed to overturn the discipline through legal proceedings, only delaying the discipline.