Deshaun Watson: The NFL’s New Disciplinary Procedure Put to the Test

The NFL’s Troubled Past

The NFL’s commissioner, Roger Goodell, has historically faced extreme criticism for relaxed disciplinary decisions.¹[1]Rodger Sherman, Everyone Loses in the Deshaun Watson Ruling but Deshaun Watson, The Ringer (Aug. 1, 2022), https://www.theringer.com/nfl/2022/8/1/23287884/deshaun-watson-cleveland-browns-suspension-roger-goodell. In 2010, Pittsburgh Steelers quarterback Ben Roethlisberger received only a four game suspension for allegedly assaulting a 20-year-old college student.²[2]Kris Rhin et al., Here Are the Longest N.F.L. Player Suspensions, The New York Times (Aug. 18, 2022), https://www.nytimes.com/article/nflsuspensions.html#:~:text=Vontaze%20Burfict.&text=Burfict’s%20penalty%2C%20the%20N.F.L.’s,the%20league’s%20player%20safety%20policies. Many argued Roethlisberger received a lenient punishment due to his stardom even though this was a serious domestic violence accusation.³[3]Andrew Hughes, Ben Roethlisberger’s suspension in 2010 shows just how leinent Deshaun Watson’s punishment is, Sportsskeeda (Aug. 5, 2022), https://www.sportskeeda.com/nfl/ben-roethlisberger-s-suspension-2010-shows-just-lenient-deshaun-watson-s-punishment. In 2014, former Baltimore Ravens running back Ray Rice was depicted in a shocking video knocking his fiancé to the floor of a casino elevator with a left-hand punch to the jaw; the NFL faced significant criticism for its original two-game suspension.⁴[4]Rhin, supra. The league extended Rice’s suspension to six games (later vacated on appeal) only after the video’s public release, and promised to impose harsher punishment to players involved in violence and sexual assault against women.⁵[5]Id. The Ray Rice controversy led the league to amend its disciplinary procedures to address domestic violence more comprehensively.⁶[6]EXPLAINER: Watson discipline didn’t require legal charges, USA Today (Aug. 1, 2022), https://www.usatoday.com/story/sports/nfl/2022/08/01/explainer-watson-discipline-didnt-require-legal-charges/50551195/. More recently, the NFL and its Players Association further revised the league’s disciplinary procedures in their 2020-30 Collective Bargaining Agreement.⁷[7]National Football Association, 2020 Collective Bargaining Agreement (2022), https://nflpaweb.blob.core.windows.net/media/Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf. An examination of the recent punishment against ex-Texans and current Browns quarterback Deshaun Watson, along with the process undertaken to reach this decision, illustrates the NFL’s new disciplinary process in action.

2020 Changes to the NFL Personal Conduct Policy Process

The 2020-30 NFL CBA amended the Personal Conduct Policy’s disciplinary procedures to remove the Commissioner from the early stages of the process.⁸[8]National Football Association, 2018 Personal Conduct Policy (2022), https://nflcommunications.com/Documents/2018%20Policies/2018%20Personal%20Conduct%20Policy.pdf.. Instead, a Disciplinary Officer (“Officer”), jointly selected by the NFL and NFLPA conducts an evidentiary hearing and makes the initial suspension decision.⁹[9]National Football Association, 2020 Collective Bargaining Agreement, art. 46 § 1(e)(i) (2022), https://nflpaweb.blob.core.windows.net/media/Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf. In rendering a decision, the Disciplinary Officer evaluates each situation deciding which circumstances depending on the individual facts of the case merit discipline.¹⁰[10]National Football Association, 2020 Collective Bargaining Agreement, art. 46 § 1(e)(ii) (2022), https://nflpaweb.blob.core.windows.net/media/Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf. Prior to the hearing, the NFL has the opportunity to recommend the terms of discipline.¹¹[11]Id. A first offense involving assault, battery, domestic violence, and sexual assault will typically result in a six-game suspension without pay.¹²[12]Id. Second offenses involving criminal assault, family violence, or sexual assault can result in permanent banishment from the NFL.¹³[13]Id. However, the policy allows for discretion in imposing more significant penalties depending on the nature of the offense.¹⁴[14]Id.

Either party may appeal the Disciplinary Officer’s decision to the Commissioner, who may hear the appeal himself or delegate the matter to a hearing officer of his choosing.¹⁵[15]Id. Appeals are limited to arguments that the amount of discipline should be modified, and may not revisit the evidentiary record.¹⁶[16]Id. The Commissioner’s decision at this stage as to the appropriate punishment is final, binding, and unappealable.¹⁷[17]National Football Association, 2020 Collective Bargaining Agreement, art. 46 § 2(a) (2022), https://nflpaweb.blob.core.windows.net/media/Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf. An important caveat here is that the NFL can institute discipline regardless of criminal or civil complaint status, a factor which often deterred harsh punishment in earlier cases.¹⁸[18]Id. The NFL also now offers counseling resources to victims and families, as well as the player, in cases of domestic violence, child abuse, or sexual assault.¹⁹[19]National Football Association, 2018 Personal Conduct Policy (2022), https://nflcommunications.com/Documents/2018%20Policies/2018%20Personal%20Conduct%20Policy.pdf.

Deshaun Watson: A Case Study

The wave of accusations alleging inappropriate sexual behavior by Deshaun Watson put the NFL’s new disciplinary procedures to the test. At the conclusion of the NFL’s investigation, conducted by two former sex crime prosecutors, the league proposed an indefinite suspension with leave for Watson to apply for reinstatement after appropriate behavioral therapy.²⁰[20]Mark Maske, Deshaun Watson suspended 11 games, fined $5 million under settlement, The Washington Post (Aug. 18, 2022), https://www.washingtonpost.com/sports/2022/08/18/deshaun-watson-suspended-appeal/. After conducting an evidentiary hearing, the Disciplinary Officer, former U.S. District Court Judge Sue L. Robinson, disagreed.²¹[21]Sherman, supra. Judge Robinson determined that Watson’s actions were nonviolent, unlike precedent cases, and she imposed only the baseline suspension of six games.²²[22]Id. Additionally, Judge Robinson directed Watson not to seek massages from therapists outside of his team’s staff for the rest of his career.²³[23]Id. Many criticized Judge Robinson’s six-game punishment given that her 16-page decision acknowledged Watson’s extreme pattern of unwanted sexual conduct against the massage therapists, including forced oral penetration and other non-consensual relations.²⁴[24]Sue L. Robinson, In re: Matter of Deshaun Watson, New York Times, 1-16, 6 (2022), https://www.espn.com/pdf/2022/0801/watson.pdf. The NFL objected to the “lenient discipline” and appealed the suspension, seeking to impose its initial disciplinary recommendation.²⁵[25]Associated Press, Goodell says Deshaun Watson deserves one-year ban for ‘predatory behavior,’ The Guardian (Aug. 10, 2022), https://www.theguardian.com/sport/2022/aug/10/deshaun-watson-nfl-suspension-appeal-ruling-cleveland-browns. Goodell selected Peter Harvey, a former New Jersey attorney and participant in Ezekiel Elliot’s 2017 personal conduct investigation, to serve as hearing officer.²⁶[26]Id. However, before Harvey could issue a ruling, the NFL and NFLPA settled the matter by agreeing to a suspension of 11 games and a fine of $5 million.²⁷[27]Id. Watson’s $45 million signing bonus was not modified or witheld.²⁸[28]Dan Graziano, Deshaun Watson’s NFL suspension will cost him $5.69 million: Details of how it affects the Cleveland Browns quarterback’s $230 million contract, ESPN (Aug. 19, 2022), https://www.espn.com/nfl/story/_/id/34419191/deshaun-watson-nfl-suspension-cost-569-million-details-how-affects-cleveland-browns-quarterback-230-million-contract. This settlement served as Goodell’s “full, final and complete disposition of the dispute.”²⁹[29]Maske, supra. Watson has since settled 23 of the 24 civil lawsuits filed against him by the massage therapists he allegedly assaulted.³⁰[30]EXPLAINER: Watson discipline didn’t require legal charges, supra. The NFL’s discipline remains fully in effect despite the fact that a grand jury in Texas decided not to indict Watson based on lack of evidence.³¹[31]Id.

Many have speculated as to why the NFL did not go forward with the appeal of Watson’s six-game suspension and instead opted for settlement. One possible reason is that the NFLPA had threatened to take the matter to federal court and seek to vacate any ruling by Peter Harvey that would have increased Judge Robinson’s punishment.³²[32]Mike Florio, Peter Harvey will refrain from ruling in Deshaun case until settlement talks reach impasse, NBC Sports (Aug. 17, 2022), https://profootballtalk.nbcsports.com/2022/08/17/peter-harvey-will-refrain-from-ruling-in-deshaun-watson-case-until-settlement-talks-reach-impasse/. Although based on past federal court decisions such a challenge is unlikely to succeed, the NFL may have wanted to avoid the optics of federal litigation of the newly-minted revised disciplinary process.³³[33]Id. However, the settlement with the NFLPA has deprived the NFL of any leverage to insist that Watson take responsibility for his actions and make proper amends. In post-settlement statements, Watson continued to defend his actions and made only a half-hearted apology.³⁴[34]Ken Belson, Deshaun Watson’s Apology Undercuts the N.F.L.’s Message, The New York Times (Aug. 19, 2022), https://www.nytimes.com/2022/08/19/sports/football/deshaun-watson-apology-nfl-suspension.html.

Conclusion

The NFL has mandated harsher player punishments in the years since the Roethlisberger and Rice incidents as evidenced by its initial request for an indefinite suspension for Watson.³⁵[35]EXPLAINER: Watson discipline didn’t require legal charges, supra. Prior to Watson, the NFL rarely issued suspensions of more than six games for instances of sexual misconduct or domestic violence.³⁶[36]Ken Belson and Jenny Vrentas, An Arbitrator Left Deshaun Watson’s Fate to the N.F.L. Commissioner, The New York Times (Aug. 2, 2022), https://www.nytimes.com/2022/08/02/sports/football/deshaun-watson-nfl-discipline.html. Today, these types of offenses are taken much more seriously by the NFL, even though it ultimately settled on an 11-game suspension for Watson.³⁷[37]Id. Despite the settlement outcome, the NFL community remains divided: some believe the NFL was too lenient with Watson and should have pursued the greater punishment in consideration of the public outcry against him, while others believe the NFL was overly harsh against Watson given the lack of criminal charges. It is up to the NFL to continue to eliminate inconsistencies for similar behavioral misconduct in the future.³⁸[38]Rhin, supra.

Written by: Samantha Schmitz
Samantha is a 2024 J.D. Candidate at Brooklyn Law School