The NFL and the NFL Players Association spent three days last week submitting evidence and arguments regarding whether Browns quarterback Deshaun Watson should be suspended to start the 2022 season and, if so, the number of games he will miss. Judge Sue L. Robinson will eventually render a decision, subject to an appeal by either party (unless she concludes that no disciplinary action should be imposed).
So what was the NFL’s real case against Watson? It’s one thing to repeatedly insist on a suspension of at least a year. It’s another thing to have the evidence that, combined with the personal conduct policy, will justify this kind of punishment.
Given the number of charges against Watson, it’s hard not to think that something happened that would warrant a suspension. With 24 lawsuits filed (20 settled) and, according to the New York Timesat least 66 different women hired via social media for private massages – and given that Watson had sex with at least three of the women who sued him – it seems reasonable to conclude that Watson used to to arrange private massages with strangers and try to steer the massages towards consensual sexual encounters.
But that was apparently not the evidence presented by the league. After interviewing just 12 of the women who made the allegations against Watson, the league presented evidence regarding five people who provided massages to Watson. The 24 trials, the 66 or more foreigners who were held for private massages and the allegation made in at least one of the trials that the actual number exceeds 100 were apparently not part of the case against him.
The NFL case focused on five people. And, as PFT reported last week, that evidence did not include any evidence of violence or threats or any type of physical behavior that would constitute actual assault.
The personal conduct policy specifically prohibits “assault and/or bodily harm, including sexual assault or other sexual offenses.” If there is no sexual assault, that specific provision of the policy has not been violated.
And that’s the provision that creates a six-game base suspension per violation. Here is the key language of the Policy: “With respect to violations of the Policy that involve: (i) felony assault or bodily harm (felony); (ii) domestic violence, dating violence, child abuse and other forms of family violence; or (iii) a sexual assault involving physical force or committed against a person incapable of giving consent, a first violation shall subject the offender to a six game basic suspension without pay, with possible adjustments upwards or downwards. decline depending on any aggravating or mitigating factor.
Without evidence of “sexual assault involving physical force or committed against a person incapable of giving consent”, there is no violation of this specific provision. (It’s possible the league is trying to argue that the circumstances suggest the people weren’t capable of giving consent, but it usually refers to someone who’s underage or otherwise incompetent, e.g. example, a person unconscious due to alcohol or drug use.)
In the absence of evidence of an actual sexual assault, the league’s case rests on two catch-all provisions at the bottom of a bullet list in the policy: (1) “conduct that poses a real danger to the safety and well-being of others the person”; and (2) “conduct that compromises or endangers the integrity of the NFL, NFL clubs or NFL personnel.” The argument would be that Watson’s habit of trying to steer massages toward sexual encounters falls under one or both of these prohibitions.
But that’s where Patriots owner Robert Kraft’s lack of discipline complicates the league’s case. If no action was taken against Kraft for having a massage that allegedly became a sexual encounter, how can the league punish Watson for the same?
The difference, of course, is that the evidence against Watson ultimately focuses on the fact that he tried, on several occasions, to turn massages into sexual encounters. Kraft has never been accused of doing this, by anyone.
For the NFL, that might be the best and strongest argument to make to Judge Robinson in written briefs due next week. Watson, they will say, posed a genuine danger to the safety and well-being of others and/or undermined or endangered the integrity of the NFL, NFL clubs or NFL personnel by repeatedly arranging private massages and trying to return them in sexual encounters.
It is unclear whether this practice has been firmly established in the evidence presented at last week’s hearing. Although the NFL focused on five women, Watson could have been questioned at length about the full extent of his habit. Had he admitted that he had tried to turn the massages into sexual encounters? If he denied it, was his testimony credible?
Then there’s the question of whether the NFL may have deliberately scaled back its efforts to make it seem like Watson’s behavior extended so broadly in light of Monday’s lawsuit (perhaps the timing wasn’t right). be no coincidence) against the Texans for supposedly knowing about Watson’s allegations. habit and taking no steps to protect the women who eventually found out during the massages that he would try to do something else with them.
While it’s impossible to know the precise extent of the league’s argument based on an alleged habit of doing massage other than massage without seeing the full transcript of the hearing, it could be the key to determining whether Judge Robinson would have a way to distinguish Watson’s behavior from Kraft and impose discipline based not on actual assault but on the alleged practice of trying to massage sexual encounters.
The answers will be in Judge Robinson’s written decision. She should write a decision that clearly explains her findings of fact and describes in simple terms how the personal conduct policy applies to those facts to result in disciplinary action. In the absence of evidence of sexual assault and given that the Kraft precedent makes it very difficult to punish Watson for engaging in massages that became consensual sexual encounters, Judge Robinson will likely only be able to discipline Watson if she finds out that he used to try to massage sexual encounters, and whether she thinks that behavior violates one or both of the personal conduct policy’s catch-all prohibitions.
That’s why the NFL’s effort to discipline Watson is so different from the criminal proceedings (which resulted in no indictments) and civil lawsuits that are still ongoing. For the league, the principles of control appear in the personal conduct policy. The facts will be determined by Judge Robinson, based on the evidence presented to him.
She will make the decision. If it chooses to impose any discipline, the league will have to decide whether to appeal to the commissioner for a heavier penalty. But the findings of fact made by Judge Robinson are, as a rule, binding on the Commissioner.
Whatever the end result, it will need to be explained in a way that is understandable and satisfying to those who might struggle to reconcile the 24 lawsuits and the evidence suggesting that Watson was in the habit of fixing affairs and trying to getting them into sexual encounters with anything less than a one-year suspension.