USA TODAY Sports
Judge Sue L. Robinson’s 16-page ruling gives the NFL the factual findings needed to impose, through the appeals process, a much longer suspension on the Browns quarterback. Deshaun Watson. But the written decision does not leave the NFL unscathed.
Judge Robinson determined that Watson did what he was accused of doing and essentially lied in denial. But she also declined to suspend Watson for a full year, as she concluded league policy and precedent did not warrant something so strict for “non-violent sexual assault.”
In the first paragraph of her decision’s conclusion, Judge Robinson berates the NFL for trying to do something anyone who pays attention to the league knows it does — make up the rules as they go.
“The NFL may be a ‘future-looking’ organization, but it is not necessarily forward-looking,” Judge Robinson wrote. “Just as the NFL responded to violent conduct [committed by former Ravens running back Ray Rice] after a public outcry, it therefore appears that the NFL is responding to another public outcry over Mr. Watson’s conduct. At least in the first situation, the Policy has been proactively modified and enforced. Here, the NFL is attempting to impose a more sweeping change in its culture without the benefit of fair notice for — and consistency of consequences for — those in the NFL subject to the policy.
While accurate, this passage ignores reality and defies common sense. The entire apparatus of personal conduct policy is to manage, and ideally avoid, public protest. The league controls players’ privacy because the public expects the league to do so (and the union has agreed to allow it). And the league prefers to have flexibility to deal with unique situations that may arise.
Yes, the NFL tends to be much more reactive than proactive. But it’s one thing not to have a proper procedure in place to ensure officials won’t miss pass interference at a key moment in a playoff game (which is entirely to be expected) and c It’s quite another not to have a rule in the books to impose proper discipline on a player who used his status as a pretext to set up a private massage he actively attempted to arrange in sexual encounters against the will of those who provided the massages. As the league said during the hearing before Judge Robinson, the penalty sought is unprecedented because the conduct is unprecedented.
Judge Robinson, barrister and former judge, treated this case too much like a lawyer. She accepted the effective and persuasive arguments of NFLPA attorney Jeffrey Kessler without taking a step back and using common sense.
Again, she concluded that Watson was guilty. But she got bogged down by the fact the league hadn’t, in her view, warned Watson that his habit/fetish of hiring massage therapists and making unwelcome sexual advances on them could get him suspended for a full year. .
“The NFL argues that consistency is not possible because there are no similarly situated players,” Judge Robinson wrote on page 13 of her ruling. And the NFL is right. He’s the first person to do this. What could or should the league have done differently in developing and enforcing its policies to fairly warn Watson that he could be suspended for a full season if he did what Judge Robinsons said concluded that he had done?
As Chris Simms pointed out on Live PFT, the average player would assume that doing what Watson did would get him suspended for a year, if not kicked out of the game for good. This question of whether policies and precedents technically warn players of the potential punishment for such misconduct assumes that they are not oblivious to such technicalities and details. Most employees of any company are.
But the employees have common sense. Watson not only committed the acts (as Judge Robinson found), but he also lied about it via his categorical denial of misconduct – and his broad and uncredible assertion that he never had any erection during a massage, although some of the women who vouched for him admitted to NFL investigators that he did. What should someone who engages in this kind of behavior reasonably expect as punishment?
It is unclear from the decision how or why Judge Robinson issued a six-game suspension for Watson. She points out that the most common discipline imposed for “violence and sexual acts” is six games, and that the most severe sentence for “non-violent sexual assault” was three games. Watson’s suspension was based on four victims. Was he suspended 1.5 games per accuser? And how it goes James Winston (the player who was suspended three games for ‘non-violent sexual assault’, we are told) engaging in a spontaneous ‘non-violent sexual assault’ incident with an Uber driver relates to the deliberate and widespread habit of Watson using his name and notoriety to arrange private massages that he tried to turn into sexual encounters, even though massage therapists weren’t interested in that?
There is another problem with Judge Robinson’s decision, regarding his assessment of aggravating and mitigating factors. Although the league chose to present evidence from only four accusers, the fact that Watson was sued by 24 people should at least have been relevant in deciding whether to increase or decrease the sentence.
“As to what appropriate discipline should be, I note that there are aggravating factors applicable to Mr. Watson, namely, his lack of expressed remorse and his late notice to the NFL of the first trial brought,” Judge Robinson wrote. at page 14. “As far as mitigating factors are concerned, he is a first-time offender and he had an excellent reputation in his community prior to these events. He cooperated with the investigation and paid restitution.
How is he a “first offender” when there are 24 alleged offences? How is he a “first-time offender” when the New York Times reported hiring at least 66 women for private massages over a 17-month period? And how does his “stellar reputation” before the four charges that became the focal point of the hearing fit in with the existence of 24 lawsuits – or the fact that he had managed to indulge? to this habit/fetish in secret for months if not years? While this evidence may not have been relevant to the question of whether he violated the policy, this evidence should have been considered to the question of aggravation and/or mitigation. .
Before I got access to Judge Robinson’s decision, I said there was no way to know how she got to six games without reviewing the decision in detail. Now that I have her, I still don’t know how she got to six games. She doesn’t explain it enough. And his efforts to do so are woefully incomplete.
It’s almost like she knows the NFL will exercise its prerogative to appeal her decision to the commissioner, and he’ll ultimately pick whatever number he wants, and so she’s decided not to bother. to apply the necessary elbow grease to make the reasoning in the six-game selection as clear as necessary. His reasoning doesn’t matter.
Once she found out that, in fact, he did, she might as well have pulled the game count out of a hat. In the end, Goodell will do whatever he wants to do. And based on Judge Robinson’s findings, why wouldn’t Goodell still want the season-long suspension he asked his employees to ask Judge Robinson?