Taking the Agent: An Anatomy and an Attempt to Understand the State of Discipline Deshaun Watson

The long-awaited decision on whether Browns quarterback Deshaun Watson violated the NFL’s personal conduct policy was made Monday by disciplinary officer Sue L. Robinson, who is jointly appointed by the NFL and the NFLPA. Watson’s case was the first under a revamped process in the NFL’s Collective Bargaining Agreement where Commissioner Roger Goodell was no longer the sole arbiter of personal conduct discipline.

Retired US District Judge Watson suspended six matches for violating policy without imposing a fine. With layoffs without pay, Watson lost $345,000 (or 6/18 of his 2022 base salary of $1,035 million) because he earned $57,500 for each of his 18 regular season weeks. None of Watson’s $44.935 million signing bonus in the five-year, $230 million fully guaranteed contract signed in March as part of the trade from Texas was jeopardized by the way the contract is structured. Robinson also believed it necessary that massage therapy at Watson be restricted to team certified massage therapists for the remainder of his career.

On Wednesday, the NFL notified the NFLPA that it will appeal Robinson’s results. The NFLPA has two business days to file a written response to the appeal. The appeal is limited to the reason for modifying the disciplinary measure based on the record of evidence. Goodell or his designee will hear the appeal. The NFLPA announced that it would not appeal prior to the decision and suggested that the NFL do the same.

Robinson found that Watson violated by engaging in sexual assault, conduct that posed a real risk to the safety and well-being of another person and conduct that undermined or jeopardized the integrity of the NFL in its 16-page ruling. Basically, the NFL won its case against Watson.

The victory seems hollow as Watson’s discipline appears light to many as the NFL has been looking for an indefinite suspension where he can apply to reinstate the job after one year. For example, the National Organization for Women called the decision “unacceptable, humiliating and dangerous, but not surprising.” During settlement talks prior to Robinson’s decision, the NFL rejected the NFL’s offer of a 12-game suspension and a $10 million fine.

Robinson stated clearly 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 inappropriate sexual behavior by him during massages that occurred while he was with the Texans, and he reportedly booked sessions with at least 66 women over a 17-month period, the NFL case was based. Only four of the women who sued him.

Robinson relied on NFL precedent, which should have been expected because she is a former judge, in determining the discipline. One of Robinson’s main findings was Watson’s behavior of being a nonviolent sexual assault despite his actions being cited as outrageous and predatory. Robinson did not explain why Watson’s behavior was nonviolent.

Due to the lack of violence, Robinson appears to be operating from a baseline suspension of three matches as a system. That’s because James Winston was suspended three games in 2018 for violating the Uber driver’s harassment personal conduct policy, which was a negotiated settlement between the NFL and the NFLPA. It was the harshest personal conduct penalty for nonviolent sexual assault.

Aggravating and mitigating factors were taken into account when determining discipline. Watson’s lack of remorse and early notification to the NFL of the initial lawsuit filed against him were cited as aggravating factors. Collaborating with the NFL investigation, paying damages (presumably settled 23 of 24 civil lawsuits), being a first-time perpetrator and Watson’s reputation in the community before the accidents were cited as mitigating factors. No importance seems to be given to the serial nature of Watson’s behavior as he is considered a first-time criminal while Winston’s sentence involved a single incident with a single person.

Robinson mentions Goodell’s failure to put Watson on the commissioner’s exemption list last season in the same paragraph as the aggravating and mitigating factors. Watson had a healthy scratcher last season. He was included in the Texas 53 men’s roster with his $10.54 million base salary, but by mutual agreement he did not wear the Games uniform and did not train with the team. Once a potential deal with the Dolphins had not occurred by the mid-season trading deadline, it could be explained that Watson was effectively working on an actual suspension for the second half of the season.

Notices and standards of fairness and consistency were crucial factors in Robinson’s judgment. The NFL’s argument that consistency is not possible because Watson’s behavior was unprecedented, so the punishment must have been unprecedented, was not found to be convincing. The following passage can help shed light on Robinson’s determination of the length of Watson’s comment.

Robinson wrote, “By ignoring previous decisions because none of them involved ‘similar’ behaviour, the NFL not only balances violent behavior with nonviolent behavior, but elevates the latter without any concrete evidence to support its position. It may well be a good fit for players with more Disciplinary for nonviolent sexual behavior, and I do not believe it is appropriate to do so without notice of the extraordinary change this situation portends to the NFL and its players.”

Robinson also noted that the NFL was motivated by “public outcry” when determining the discipline, which specifically relates to the 2014 Ray Rice case. Rice was initially suspended for two games under the personal conduct policy but was later suspended indefinitely. After a video clip of him, the incident of domestic violence against his wife became public. The indefinite suspension was overturned on appeal because Rice was punished for the same offense twice.

Robinson apparently found some similarities in the Watson case where the NFL was advocating a harsher penalty than stipulated in the policy “without the benefit of fair notice” and “consistency of consequences.” It would not be surprising if there would be a revision of the Personal Conduct Policy where the penalties for nonviolent sexual assault are clearly defined due to Robinson’s ruling, just as changes were made after Rice’s ordeal.

The NFLPA’s argument that ownership and management of the league have traditionally been held to higher standards and would be subject to more important discipline as specifically stated in the Personal Conduct Policy, but that it got away with similar or worse behavior, seems to resonate with Robinson. In the footnote, Robinson acknowledges that the policy applies equally to players, team owners, and management.

The court of public opinion will obviously be on the side of the NFL on appeal because the consensus is that Watson’s sentence is too lenient. The NFL will revert to the situation it was trying to avoid by becoming the final arbiter of personal conduct discipline in the first instance under the revised process. An appeal would fundamentally undermine Robinson’s decision because Watson’s sentence would almost certainly increase.

Reportedly, the NFLPA is prepared to pursue remedies through the legal system in response to the appeal. In the past, the NFLPA was able to obtain injunctive relief, which could allow Watson to start the season on the field. In the end, the NFLPA did not succeed in overturning discipline through legal action, only delaying discipline.

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