If this were any other job, Deshaun Watson would have been fired.
After all, what employer would tolerate having to settle 30 sexual misconduct lawsuits against an employee as the Houston Texans did in July 2021? Instead, the Texans star QB got his full salary while being inactive and, after a trade to Cleveland in March, got a $230 million contract, every cent guaranteed.
Adding further outrage is that Watson last Monday only got a six-game suspension by a “Disciplinary Officer,” despite concluding that “Mr. Watson’s pattern of conduct is more egregious than any before reviewed by the NFL.”
What about the lives of those therapists whose careers and livelihoods were ruined? Some, the NFL claimed, were “fearful” of Watson’s ability to damage their careers. Another sought counseling, while yet another suffered depression.
I have no sympathy for Watson. He should get the maximum penalty allowed by the NFL, a banishment for a year or longer as well as a hefty fine.
That would be the right thing to do for moral, ethical, humanitarian reasons.
It would not be a good thing for the Browns and their fanatics, who are showing where they stand as far as principle.
But I feel if this goes to federal court, Watson could very well prevail, like it or not.
That’s because this mess is partly of the NFL’s own doing.
It goes back to 2014, when NFL Commissioner Roger Goodell and the league experienced big-time blow-back in the mishandling of the Ray Rice case. The former Ravens running back was initially suspended for just two games after knocking out his then fiancée with a punch in a hotel elevator. After the video went public, a firestorm of shock and revulsion took place. Rice was then suspended indefinitely and then released, never to be on an NFL team again.
That resulted in the NFL rewriting its personal conduct policy, listing at least 14 different violations and setting a baseline of a six-game unpaid suspension for first-time offenders of certain violations, which included sexual assault.
But the players union and the public also didn’t like Goodell being the judge and jury while doling out these sanctions. So they both agreed to an independent arbiter.
That’s where “Disciplinary Officer” Sue L. Robinson entered the picture in the Watson case.
The retired federal judge was appointed jointly by the league and the NFL players union to replace Goodell in rendering penalties in such matters.
After a lengthy review process in the Watson case, Robinson eventually “found that the NFL carried its burden to prove, by a preponderance of the evidence, that Mr. Watson violated the policy in various ways.”
But while Goodell sought an indefinite suspension that would be a minimum of a year, a fine — the Associated Press reported it to be $5 million — and treatment that Watson must undergo, Robinson ruled that Watson would get only six games.
That set off another public outcry.
However, after reading her 16-page report, it’s understandable why she decided as she did and why the NFL might lose if this case is played out in the court of law instead of the court of public opinion.
Robinson based her decision on the NFL’s 215-page investigative report, along with testimonies of the two NFL investigators who were former prosecutors with “decades of experience investigating sexual assault cases.”
Her brief corroborated a New York Times article alleging that Watson worked with more than 60 massage therapists during the 15-month period from the fall of 2019 to the winter of 2021.
But of those, the NFL investigated the claims of 24 therapists suing Watson. Of the 24, the NFL was only able to interview 12. Of those 12, the NFL relied for its conclusions on the testimony of four therapists “as well as interviews of some 37 other third parties and substantial documentary evidence.”
Robinson concluded that the NFL proved that Watson violated the three provisions brought by the NFL by engaging in: “(1) sexual assault; (2) conduct that poses a genuine danger to the safety and well-being of another person; and (3) conduct that undermines or puts at risk the integrity of the NFL.”
However, in the first two instances, neither the NFL nor the Collective Bargaining Agreement provided a definition of the misconduct. It was left to the investigators to provide a definition.
So Robinson wrote “as it is the NFL’s prerogative to impose the Policy on its players, I am bound to accept the NFL’s definition … it is the NFL’s policy and it can set the rules.”
She stated that when the NFL revised its policy following the Rice incident to include a six-game suspension for certain first-time violent offenders, including sexual assault involving physical force, the NFL “gave fair notice to its players and to the public of the probable consequences of certain violent conduct.”
But in this case, the NFL was equating Watson’s non-violent acts to violent acts “without evidence to support its position.”
Robinson even used the example of the NFL suspending a player for 10 games for multiple incidents of domestic violence for which the player pled guilty to battery.
She wrote: “While it may be entirely appropriate to more severely discipline players for non-violent 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. …
“It is inherently unfair to identify conduct as prohibited only after the conduct has been committed, just as it is inherently unjust to change the penalties for such conduct after the fact.”
She wasn’t done with the NFL.
“The NFL may be a ‘forward-facing’ organization, but it is not necessarily a forward-looking one,” she wrote. “Just as the NFL responded to violent conduct after a public outcry, so it seems the NFL is responding to yet another public outcry about Mr. Watson’s conduct. At least in the former situation, the Policy was changed and applied proactively. Here, the NFL is attempting to impose a more dramatic shift in its culture without the benefit of fair notice to — and consistency of consequence for — those in the NFL subject to the Policy.”
With the NFL’s guidelines limiting her authority, Robinson probably figured the NFL and Goodell would appeal and overrule her regardless. After all, she repeatedly said “the NFL is a private organization and can operate as it deems fit.”
The NFL did appeal, and on Thursday, the league announced the former New Jersey attorney general Peter C. Harvey — a former federal prosecutor with expertise in criminal law, including domestic violence and sexual assault — will hear the NFL’s appeal instead of Goodell.
Whatever the eventual outcome, it’s not a good thing for the NFL, with a players vs. league battle being played out and a large portion of the fanbase being disgusted.
The league and Goodell realize that 47% (CNBC report) of all NFL fans are women. He knows his duty is to protect the shield and an industry that generated $12.2 billion in 2020 (Statista.com).
And that is being threatened right now.