The NFL and the NFL Players Association spent three days last week filing evidence and arguments regarding whether Brown’s quarterback Deshaun Watson must be suspended to start the 2022 season and, if so, the number of games he will miss. Judge Sue L. Robinson will ultimately make a decision, subject to an appeal by either party (unless she believes no disciplinary action should be imposed at all).
So what was the NFL’s actual case against Watson? Repeatedly pushing for a suspension of at least one year is one thing. It’s another thing to have the evidence that, combined with the personal conduct policy, will justify that kind of punishment.
When you look at the sheer number of charges against Watson, it’s hard not to think something happened that would warrant a suspension. With 24 lawsuits filed (20 have been settled) and, according to the New York Timeshired at least 66 different women through social media for private massages – and given the admission that Watson had sexual encounters with at least three of the women who had sued him – it seems reasonable to conclude that Watson was in the habit of arranging private massages with strangers and try to steer the massages in the direction of consensual sexual encounters.
But apparently that wasn’t the evidence the competition presented. After interviewing only 12 of the women who had made allegations against Watson, the union presented evidence of five individuals who had given massages to Watson. The 24 lawsuits, the 66 or more strangers detained for private massages, and the allegation in at least one of the lawsuits that the actual number exceeds 100 were apparently not part of the case against him.
The NFL’s case targeted five people. And, as PFT reported last week, that evidence included: no evidence of violence or threats or any form of physical behavior that would constitute an actual attack.
The Personal Conduct Policy expressly prohibits “assault and/or violence, including assault or other sexual offenses”. If there is no sexual assault, that specific provision of the policy has not been violated.
And that is the provision that creates a basic suspension of six games per violation. This is the main language of the policy: “With respect to violations of the policy relating to: (i) criminal assault or assault (crime); (ii) domestic violence, dating violence, child abuse and other forms of domestic violence; or (iii) assault with physical violence or committed against anyone incapable of consent, a first offense will subject the offender to a six-game basic suspension without payment, with possible upward or downward adjustments based on aggravating or mitigating factors.”
Without evidence of “assault with physical assault or against someone who cannot consent”, there is no violation of that particular provision. (It is possible that the competition will try to claim that the circumstances suggest that the individuals were unable to give consent, but that usually refers to someone who is underage or in some way incapacitated, e.g. someone who is unconscious by alcohol or drug use.)
In the absence of evidence of actual sexual assault, the competition’s case rests on two comprehensive provisions at the bottom of a bulleted list in the policy: (1) “conduct that poses a real threat to the safety and well-being of another person”; and (2) “conduct that undermines or jeopardizes the integrity of the NFL, NFL clubs, or NFL personnel.” The argument would be that Watson’s habit of directing massages toward sexual encounters falls within one or both of these prohibitions.
But that’s where the lack of discipline for Patriots owner Robert Kraft complicates the league’s business. If no action was taken against Kraft for having a massage that allegedly turned into a sexual encounter, how can the competition punish Watson for the same?
The difference, of course, is that the evidence against Watson ultimately revolves around the fact that he has reportedly repeatedly attempted to turn massages into sexual encounters. Kraft has never been accused of that by anyone.
For the NFL, that may be the best and strongest argument to present to Judge Robinson in the written submissions due next week. Watson, they will argue, posed a real threat to the safety and well-being of another and/or undermined or compromised the integrity of the NFL, NFL clubs, or NFL personnel by repeatedly hosting and attempting to host private massages. to succeed. in sexual encounters.
It is unclear whether this practice was firmly established in the evidence submitted at the hearing last week. Although the NFL focused on five women, Watson could have been questioned extensively about the full extent of his habit. Has he admitted to trying to turn massages into sexual encounters? If he denied it, was his testimony credible?
Then there’s the question of whether the NFL deliberately scaled back the effort to give the impression that Watson’s behavior was spreading so widely in light of the lawsuit filed Monday (the timing may not have been coincidental) against the Texans because they were allegedly aware of Watson’s alleged habit and taking no steps to protect the women who eventually found out during the massages that he was going to try to make it into something else.
While it’s impossible to know the specific scope of the competition’s argument, based on an alleged habit of making massages something other than massages without seeing the full transcript of the hearing, that could be key to determining whether Judge Robinson would have some way of distinguishing Watson’s behavior from Kraft’s and the imposition of discipline based not on an actual assault, but on the alleged practice of trying to turn massages into sexual encounters.
The answers will appear in Judge Robinson’s written decision. She will need to issue a statement that clearly explains her factual findings and outlines in basic terms how the personal conduct policy applies to those facts in order to lead to disciplinary action. In the absence of evidence of sexual assault and given that Kraft precedent makes it very difficult to punish Watson for doing massages that turned into consensual sexual encounters, Judge Robinson will likely only be able to punish Watson if she finds that he had the habit of trying to turn massage into sexual encounters, and if she believes this behavior violates one or both of the two comprehensive prohibitions of the Personal Conduct Policy.
That’s why the NFL’s effort to punish Watson is so different from the criminal trial (which has not resulted in charges) and the civil lawsuits that are still pending. For the competition, the controlling principles are included in the Personal Conduct Policy. The facts will be established by Judge Robinson, based on the evidence presented to her.
She will make the decision. If she chooses to impose any discipline, the competition will have to decide whether to appeal to the commissioner for a higher penalty. But Judge Robinson’s factual findings are rule-by-line binding on the commissioner.
Whatever the final outcome, it will have to be explained in a way that is understandable and satisfying to those who may have a hard time reconciling the 24 lawsuits and the evidence suggesting that Watson had a habit of arranging management and to try to make them. in sexual encounters with a little less than a one-year suspension.
Taking a closer look at the NFL’s case against Deshaun Watson originally appeared on Pro Football Talk