NFL, NFLPA Receive Homework as Deshaun Watson Arbitrator Sets Tone
When retired federal Judge Sue Robinson held the disciplinary hearing for Cleveland Browns QB Deshaun Watson last Tuesday, many expected for her to announce a decision shortly thereafter, and for Watson, the NFL or both to appeal it to NFL commissioner Roger Goodell.
Instead, she ordered the parties back for a second day. Then she brought them back for a third day. Then she told them to file post-hearing briefs during the week of July 11.
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It’s as if the judge didn’t get the script and instead treated the hearing like something few thought it would be: a court proceeding. There is a focus on detail, a willingness to ask many questions and follow-up questions and an ambition to build a comprehensive and conclusive report that will support the legal reasoning of her eventual decision.
Here are four key takeaways:
1. Post-hearing briefs give each side one last attempt to persuade Robinson.
Post-hearing briefs allow attorneys to address specific points of contention that surfaced during the hearing.
For example, Robinson might question the merits of the NFL’s seeking an indefinite suspension, which is arguably tantamount to a ban since the duration would be up to the league. Personal misconduct bans are typically for a specific numbers of games; six have been issued in recent years for domestic violence-related matters.
For Watson and the NFLPA, Robinson might seek clarifying answers on allegations brought against Watson and how she ought to construct a penalty. The NFL reportedly is in custody of damning texts and other materials that could portray Watson as a serial abuser of women, even though a grand jury declined to indict him and even though he’s settled most of the lawsuits.
If Robinson finds that Watson has repeatedly violated the conduct policy, it’s possible she could punish him multiple times. If each punishment warrants a six-game suspension, would Robinson run those suspensions concurrently or consecutively? The answer would have a dramatic effect on how long Watson is sidelined.
2. Robinson is focused on identifying the right conclusion, not rushing to satisfy football timelines.
The Browns open training camp on July 27, and they’d like to know if Watson will be their quarterback when the season starts. The longer Robinson takes, the less certainty the Browns will have about Watson’s availability. If either side appeals Robinson’s decision, that would kick off a new timeline with Goodell hearing an appeal. Watson could then challenge Goodell’s decision in federal court.
While sports fans, bettors and of course, Watson and the Browns, are concerned about that timeline, Robison is not worried about it. She is focused on determining if Watson engaged in conduct detrimental to the NFL and, if so, how to punish him. If the NFL or NFLPA wanted a disciplinary officer to act with more haste, they probably shouldn’t have hired a judge.
The Watson timeline is already behind the Deflategate timeline; Goodell heard Tom Brady’s appeal on June 23, 2015 and upheld Brady’s four-game suspension on July 28, 2015. Brady—whose attorney, Jeffery Kessler, is now representing Watson—and the NFL then litigated the suspension in federal court. Judge Richard Berman vacated Brady’s suspension on Sept. 3, 2015, a week before that season kicked off, which permitted Brady to play the entire 2015 season. The NFL later defeated Brady at the U.S. Court of Appeals for the Second Circuit, and the QB sat out the first four games of the 2016 season.
If Watson litigates an eventual suspension, he might still be in court by the time the Browns play their first regular season game on Sept. 11.
3. Goodell might feel constrained in overruling Robinson.
Goodell, or a designee of his choosing, would hear an appeal, so if the NFL wants Watson to face a suspension of one season plus an indefinite period thereafter, then Goodell could impose it.
If that sounds too simplistic, it is. That approach could run the risk of discrediting the spirit, if not letter, of the process and rendering Robinson’s role as a neutral arbitrator superfluous.
Should Watson later sue the NFL, his attorneys would insist that Goodell (or his designee) failed to follow the CBA, which promises a significant role for the disciplinary officer (i.e., Robinson). Failure to follow the CBA would be a powerful legal argument in a case that would concern application of the CBA. If Goodell overrules Robinson, he’ll need to offer a cogent explanation and set of persuasive rationales as to why Robinson erred.
This is why Robinson’s apparent thoroughness matters. She is building a comprehensive record that might be difficult for Goodell—who is not an attorney, let alone a retired judge—to significantly alter.
4. Both sides still have incentives to cut a deal.
A settlement would entail Watson agreeing to serve a suspension and forgoing opportunities to appeal or litigate. Given that neither side has any control over Robinson, both sides might want to play it safe and reach a compromise before she renders a decision. But as of this writing, there’s no indication that Watson and the NFL will settle their dispute.
A settlement is technically possible at any point, so long as the NFLPA and NFL agree to it. However, once Robinson issues a decision, it might be too late. At that point, the process will likely become more litigious. Should either side appeal to Goodell, his decision would become the basis of a lawsuit by Watson.
To the extent Watson and the NFL are worried about the hearing’s materials, including any transcripts, becoming public, a settlement would be a crucial step. In 2015, litigation over Brady’s suspension led to the release of a hearing transcript. In this case, materials produced during Robinson’s hearing (and any appeal hearing) could include details about accusations against Watson—the accusers’ attorney, Tony Buzbee, is seeking NFL materials—and details about accusations against owners who Goodell declined to punish for alleged personal misconduct. If the parties settle, they can agree on confidentiality and make it very difficult for others to learn about what was discussed.
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