Why sources and legal experts expect NFL to appeal Deshaun Watson’s suspension

Judge Sue L. Robinson, the jointly appointed NFL disciplinary officer, issued a lengthy ruling on Monday explaining her legal reasoning for why she suspended Cleveland Browns quarterback Deshaun Watson for six games, a punishment stemming from him allegedly engaging in a disturbing pattern of sexual misconduct involving female massage therapists.

“Although this is the most significant punishment ever imposed on an NFL player for allegations of nonviolent sexual conduct, Mr. Watson’s pattern of conduct is more egregious than any before ever reviewed by the NFL,” Robinson stated in her 16-page ruling, which explained that she leaned on precedent and the NFL being reactionary to public outcry, as the league did in the wake of the Ray Rice domestic violence case.

League sources and legal experts expect NFL to appeal the judgment

Robinson added that 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. While it may be entirely appropriate to more severely discipline players 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.”

Now, Robinson’s decision is under major scrutiny and drawing heavy criticism as too lenient under the subjective standards of the NFL personal conduct policy.

Multiple league sources and legal experts predict that the NFL will ultimately exercise its right to file an appeal within three days and that NFL commissioner Roger Goodell will significantly increase the punishment levied against the three-time Pro Bowl passer, which includes no fine. The NFL and the NFL Players Association have until 9 a.m. ET Thursday to file an appeal.

One source expressed a strong belief that the NFL will bow to public pressure and that Goodell or an arbiter he appoints will augment the punishment imposed by Robinson, perhaps by suspending Watson an additional four to six games and, possibly, also adding a multi-million dollar fine.

One source said that Goodell could even go so far as to hand down a season-long punishment, which is what the NFL argued was appropriate during a June disciplinary hearing before Robinson in Delaware. This marks the first case heard by Robinson and the first case under a revised personal conduct policy that was changed two years ago under a new collective bargaining agreement.

“I don’t think they will be able to stand up to the public pressure and perception,” a source said. “I could see Watson getting hit with a much longer suspension.”

Although Watson was not charged with a crime by two Texas grand juries and has maintained his innocence while settling 23 of 24 civil lawsuits filed by the plaintiffs’ attorney Tony Buzbee, the NFL has a different disciplinary standard involving whether a player has tarnished the shield — the symbol of the league — through his actions.

Robinson wrote that the NFL had proven that Watson had violated the personal conduct policy. In her ruling, she stated: “The NFL demonstrated that Mr. Watson engaged in sexualized conduct during the massage sessions. I find this evidence sufficient to demonstrate that Mr. Watson’s conduct undermined the integrity of the NFL in the eyes of the therapists. It is apparent that Mr. Watson acted with a reckless disregard for the consequences of his actions by exposing himself (and the NFL) to such a public scrutiny and speculation. Mr. Watson’s predatory conduct case ‘a negative light on the League and its players.'”

Bottom line: Robinson ruled that Watson had engaged in sexual assault as defined by the NFL through conduct that poses a genuine danger to the safety and well-being of another person and by engaging in conduct that undermines or risks the integrity of the NFL.

Roger Goodell’s decision on Watson is on deck

Daniel Moskowitz is an attorney with a long and successful history of representing NFL players in disciplinary matters. That includes his previous work with clients Randy Gregory, David Irving, and Daryl Washington.

On the matter of how Goodell will proceed, Moskowitz, who has no involvement in the Watson case, said that he expects the NFL to likely file an appeal. Because the appeal would be heard by Goodell or by someone he appoints, the punishment is expected to be increased.

“People must remember that Commissioner Goodell is a disciplinarian authority,” Moskowitz said in a telephone interview. “He believes in the integrity of the shield. That is not mere lip service. He believes it is a privilege to play in the NFL, not a right. That is going to be how he looks at this issue, I think. It’s very simple. He’s not (former NFL commissioner) Paul Tagliabue. Goodell is nearing the end of his tenure. He will want to be remembered for doing the right thing here. A six-game suspension is not conducive to what Roger Goodell is going to want.

“Based on history and who he is, he is a man of actual principle. This punishment can hurt the NFL, and that hurts Goodell. They can lose sponsors. It’s a business decision, of course, and there have been owners throughout this entire process who were lobbying and begging for resolution in this case because of the morality and substantive nature of the case. People will say they’ve failed otherwise based on public perception, so let’s take a step back and look at this.”

How will Roger Goodell and the NFL make their decision?

Goodell is expected to lean on several individuals as he makes his decision, including Jeff Pash, the NFL’s general counsel and executive vice president who oversees league investigations, as well as NFL labor relations counsel Janelle Winston and Byron Todd Jones, the chief disciplinary officer for the league and senior vice president and special counsel. Jones is a former director of the Bureau of Alcohol, Tobacco, and Firearms and the former United States Attorney for the District of Minnesota.

“Ultimately, this is Roger’s decision and his decision alone on whether to appeal,” Moskowitz said. “Generally, Roger will rely on certain recommendations from his trusted advisor, Jeff Pash. I believe he’s going to wield his power to file an appeal.”

The NFL, in a statement, emphasized the league is keeping its options open. That could include a potential appeal. To many observers, this statement sounds like an appeal is coming.

“We thank Judge Sue L. Robinson, the independent disciplinary officer, for her review of the voluminous record and attention during a three-day hearing that resulted in her finding multiple violations of the NFL Personal Conduct Policy by Deshaun Watson,” the league said in a statement. “We appreciate Judge Robinson’s diligence and professionalism throughout this process. Pursuant to the Collective Bargaining Agreement, the NFL or the NFLPA on behalf of Watson may appeal the decision within three days. In light of her findings, the league is reviewing Judge Robinson’s imposition of a six-game suspension and will make a determination on next steps.”

The players’ union previously signaled it would not file an appeal, though.

“In advance of Judge Robinson’s decision, we wanted to reiterate the facts of this proceeding,” the union said in a statement. “First, we have fully cooperated with every NFL inquiry and provided the NFL with the most comprehensive set of information for any personal conduct policy investigation. A former Federal Judge — appointed jointly by the NFLPA and NFL — held a full and fair hearing, has read thousands of pages of investigative documents, and reviewed arguments from both sides impartially.

“Every player, owner, business partner, and stakeholder deserves to know that our process is legitimate and will not be tarnished based on the whims of the League office. This is why, regardless of her decision, Deshaun and the NFLPA will stand by her ruling and we call on the NFL to do the same.”

Should the punishment be appealed, Goodell or a designee will issue a written decision “that will constitute full, final and complete disposition of the dispute.”

Of course, the NFL could opt for a different scenario. The league could decide not to appeal. They could explain that they don’t want to undermine Robinson and the process collectively bargained with the players’ union.

They would undoubtedly endure more criticism, perhaps criticism that wouldn’t relent or blow over quickly, if ever.

“The reason they would decide to not appeal would be to say, ‘We came to an agreement with the union and believe this process was carried out fundamentally fairly and doing what the rules state and respecting Judge Robinson’s decision,'” Moskowitz said. “It all comes down to this being a fair process. It would be like the NFL saying, ‘Let’s not rehash this.’ It’s a high-profile case. There’s a lot to think about here.”

Ezekiel Elliott’s case provides some precedent for Watson

Dallas Cowboys running back Ezekiel Elliott was suspended for six games in 2017 for a violation of the NFL personal conduct policy. His suspension was because of accusations of domestic violence from a former girlfriend. He was not charged with a crime, but he was still suspended.

Elliott announced he planned to file an appeal, but the punishment was initially upheld by a league-appointed arbitrator. Two days later, a federal judge granted the NFLPA’s request for an injunction that placed the suspension on hold indefinitely.

Elliott resumed playing for the Cowboys, but the Fifth Circuit U.S. Court of Appeals reinstated the suspension. He was then granted a temporary restraining order. Later, a judge from the New York Southern District Court denied the preliminary injunction and reinstated the suspension again.

It was delayed again after an emergency motion was granted by the United States Court of Appeals for the Second Circuit of Appeals. The suspension was later reinstated by that court, and Elliott accepted the suspension and withdrew from further attempts to appeal the league’s punishment.

The Elliott case could be instructive for any potential Watson appeal. That’s because it has been ruled multiple times that Goodell and the NFL have the collectively bargained power to make these disciplinary decisions regardless of the merits or lack thereof of a case.

“When the judge’s decision was overturned in the Elliott case, the court said they did not have the power or jurisdiction to meddle in what amounted to a private dispute in a collective bargaining agreement, a private agreement between two parties,” Moskowitz said. “The suspension was upheld and imposed. Both sides agreed to have Robinson be the disciplinary officer. What any appeal is going to attack is Goodell’s unfettered power, but, news flash, they allowed this in the CBA. Robinson clearly ruled down the middle. She was very fair. The issue is not the punishment or the severity of the punishment. It’s simple. Does Roger have the power to make these decisions? It’s a resounding ‘yes.'”

A league source weighed in on the possibility of an appeal, which it has been speculated that the NFLPA will attempt, should Watson’s punishment be dramatically increased.

“A federal lawsuit is not going to work,” the source said. “It could delay the punishment, of course, but, ultimately, it’s not going to win.”

Settlement negotiations unsuccessful between Watson, NFL, and NFLPA

Watson was represented by Houston attorney Rusty Hardin and NFLPA outside counsel Jeffrey L. Kessler. He was investigated by NFL senior vice president and special counsel for investigations Lisa Friel, a former Manhattan, N.Y., chief sex crimes prosecutor. Friel interviewed Watson multiple times in Houston.

The NFL and the players’ union attempted to strike a compromise on a settlement of a proposed punishment of Watson, a former first-round draft pick from Clemson who didn’t play last season and was paid his full $10.54 million salary after requesting a trade from the Houston Texans, but sources emphasized that they never came close to a deal.

He was traded to the Browns in exchange for three first-round draft picks and signed to a five-year, $230 million fully guaranteed contract.

The reasoning from the league requesting an indefinite suspension was to have given them the flexibility to potentially impose further discipline in the event that other allegations of misconduct surfaced. Although no DNA, audio, or video evidence exists in the cases, according to multiple sources, the NFL used text messages, depositions, and interviews to make its argument.

Watson’s legal team argued that the three-time Pro Bowl selection should receive little to no discipline under the NFL collective bargaining agreement based on the light discipline imposed previously against NFL owners Robert Kraft, Daniel Snyder, Jerry Jones, and Jerry Richardson for allegations of sexual misconduct.

Buzbee stated that Watson sought out at least 66 different massage therapists and alleged the number is likely more than 100 therapists while employed by the Texans. Watson was not charged with any crimes by two Texas grand juries, and he has maintained his innocence throughout the process.

“I’ve been honest and I’ve been truthful about my stance and that’s I never forced anyone, I never assaulted anyone,” Watson said during a press conference. “So, that’s what I’ve been saying from the beginning and I’m going to continue to do that until all the facts come out on the legal side. I have to continue to just go with the process with my legal team and the court of law.”