The NFL and NFL Players Association spent three days last week presenting evidence and arguments on whether Browns quarterback Deshaun Watson should be suspended from the start of the 2022 season, and if so, how many games he will miss . Judge Sue L. Robinson will ultimately make a decision, subject to an appeal by either party (unless she finds that no disciplinary sanction should be imposed at all).
So what was the NFL’s real case against Watson? It’s one thing to keep insisting on a ban of at least a year. It is another to have evidence that, combined with the Personal Conduct Policy, justifies this type of punishment.
Given the sheer number of allegations against Watson, it’s hard to believe anything happened to warrant a suspension. With 24 lawsuits filed (20 settled) and loud New York Timesat least 66 different women hired for private massages via social media — and given the admission that Watson had sexual encounters with at least three of the women who sued him — it seems reasonable to conclude that Watson was in the habit of giving private massages to arrange with strangers and try to steer the massages towards consensual sexual encounters.
But that apparently wasn’t the evidence the league presented. After questioning just 12 of the women who made allegations against Watson, the league presented evidence of five people massaging Watson. The 24 lawsuits, the 66 or more strangers held back for private massages, and the allegation in at least one of the lawsuits that the actual number exceeds 100 appeared not to have been part of the case against him.
The NFL’s case focused on five people. And as PFT reported last week, that evidence included no evidence of violence or threats or any type of physical behavior that would constitute an actual assault.
The Personal Conduct Policy expressly prohibits “assault and/or physical harm, including sexual assault or other sexual offenses.” If there was no sexual assault, then this specific provision of the policy has not been violated.
And that’s the provision that establishes a baseline ban of six games per offense. Here is the key language of the Policy: “In relation to violations of the Policy involving: (i) criminal bodily harm or bodily harm (Crime); (ii) domestic violence, dating violence, child abuse and other forms of family violence; or (iii) sexual assault involving physical violence or committed against someone who is unable to give consent, the violator will be subject to a basic unpaid six-game suspension for a first offense, with possible adjustments up or down , based on aggravating or mitigating factors.
Without evidence of “sexual assault involving physical violence or committed against a person who is unable to consent,” there is no violation of this specific provision. (It is possible that the League will attempt to argue that the circumstances indicate that the individuals were incapable of consent, but this typically refers to someone who is underage or incapacitated in some way, for example someone who is due to alcohol is unconscious or drug use.)
In the absence of evidence of actual sexual assault, the League’s case relies on two general provisions at the bottom of a list of bullet points in the policy: (1) “Conduct that presents a real threat to the safety and well-being of another person” and (2) “conduct that undermines or endangers 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 under one or both of these prohibitions .
But here the lack of discipline for Patriots owner Robert Kraft is complicating the league’s case. If no action was taken against Kraft for having a massage that allegedly turned into a sexual encounter, how can the League discipline Watson for the same thing?
The difference, of course, is that the evidence against Watson ultimately focuses on the fact that he allegedly repeatedly attempted to turn massage into sexual encounters. Kraft was never accused of that, by anyone.
For the NFL, this is possibly the best and strongest argument that Judge Robinson can make in the written filings due next week. Watson, they will argue, posed a real threat to the safety and well-being of others and/or undermined or compromised the integrity of the NFL, NFL clubs, or NFL personnel by repeatedly arranging and attempting to perform private massages into sexual encounters.
It is unclear whether this practice was firmly embedded in the evidence presented at last week’s hearing. Even though the NFL focused on five women, Watson could have been questioned at length about the full extent of his habit. Has he admitted trying to turn massage into sexual encounters? If he denied it, was his testimony credible?
Then there’s the question of whether the NFL may have intentionally scaled back efforts to make it appear that Watson’s behavior was different in light of Monday’s lawsuit (the timing may not have been coincidental) against the Texans for alleged knowledge of Watson’s allegation habit stretched so far and took no steps to protect the women, who eventually found out during the massages that he was trying to make something else out of it.
While it’s impossible to know the specific extent of the League’s argument based on an alleged habit of turning massage into something other than massage without seeing the full transcript of the hearing, this may hold the key to determining whether Judge Robinson had any way of distinguishing Watson’s conduct from Kraft’s and the imposition of disciplinary action not on an actual assault but on the alleged practice of turning massages into sexual encounters.
The answers will appear in Judge Robinson’s written decision. She must make a decision that clearly states her findings of fact and that outlines in basic terms how the Personal Conduct Policy will apply to those facts to result in disciplinary action. With no evidence of sexual assault and given that the Kraft precedent makes it very difficult to punish Watson for participating in massages that turned into consensual sexual encounters, Judge Robinson will likely only be able to discipline Watson if she finds that he has been in the habit of attempting to turn massages into sexual encounters and if she believes that such behavior violates either or both of the two general prohibitions of the Personal Conduct Policy.
This is why the NFL’s efforts to discipline Watson are so different from the criminal case (which resulted in no charges) and the pending civil cases. For the league, the control principles appear in the Personal Conduct Policy. The facts will be determined by Judge Robinson based on the evidence presented to her.
She will make the decision. If it chooses to impose disciplinary action at all, the league must decide whether to seek a higher penalty from the commissioner. But Judge Robinson’s findings of fact are generally binding on the commissioner.
Whatever the end result, it must be explained in a way that is understandable and satisfactory to those who may be having a hard time understanding the 24 lawsuits and the evidence that suggests Watson had a habit of arranging managements and to try to reconcile, to reconcile in sexual encounters with anything less than a year’s ban.