Deshaun Watson update: NFL, NFL Players Association in active settlement discussions in disciplinary matter

Active settlement negotiations are being conducted between the NFL and the NFL Players Association in the Deshaun Watson disciplinary matter, with talks continuing over the past few days, according to league sources not authorized to speak publicly.

It remains unclear if a compromise will ultimately be reached in advance of NFL designee Peter C. Harvey, a former New Jersey Attorney General, issuing a ruling on the NFL’s appeal of Watson’s six-game suspension levied by NFL disciplinary officer and former federal judge Sue L. Robinson.

Sources expressed optimism that a deal will get worked out. Another source noted the potentially significant discipline expected to be handed down by Harvey should talks fail to reach a deal.

NFL designee ‘could drop the hammer’ on Deshaun Watson

Harvey helped write the NFL’s current version of the personal conduct policy, acted as a designee in Dallas Cowboys running back Ezekiel Elliott’s six-game suspension in 2017, and has an extensive background as a former prosecutor in handling sexual assault and domestic violence cases.

“Harvey could drop the hammer on Watson,” a source said. “That’s why a settlement is a better outcome, even if it’s more than six games and includes a multi-million dollar fine.”

Regardless of the outcome, this is one of the most significant disciplinary cases in NFL history.

Watson has been accused of an alleged pattern of sexual misconduct in sessions with female massage therapists. The Georgia native and three-time Pro Bowl selection were traded to the Browns from the Houston Texans in exchange for three first-round draft picks and signed to a fully guaranteed $230 million contract. Two Texas grand juries declined to charge Watson with any crime.

Watson has maintained his innocence and settled 23 of 24 civil lawsuits filed by plaintiffs’ attorney Tony Buzbee on behalf of massage therapists who alleged that Watson behaved inappropriately.

“Look, I want to say that I’m truly sorry to all of the women that I have impacted in this situation,” Watson said in a team-produced, in-house video last week prior to a rough outing in a preseason game against the Jacksonville Jaguars as he went 1 for 5 for 7 yards “The decisions that I made in my life that put me in this position I would definitely like to have back, but I want to continue to move forward and grow and learn and show that I am a true person of character and I am going to keep pushing forward.”

Watson had previously said he had no regrets, and a lack of stated public remorse was cited by Robinson in her decision to suspend him.

“I know I have a lot of work to put in, especially on the field to be able to make sure I’m ready to play whenever that time comes whenever I can step back on the field, but also, the biggest thing is I want to continue counseling and I want to make sure that I’m growing as a person, as an individual for my decision-making on and off the field,” Watson said. “I want to make sure that I’m just evolving in the community as much as possible, and that is for the Cleveland community, that is the NFL community, and beyond.”

NFL commissioner Roger Goodell has called for Watson to be suspended indefinitely, and to miss at least one year before possible reinstatement.

League sources and legal experts previously told Pro Football Network that they would be mildly surprised, if not shocked, if Harvey didn’t levy a significant punishment against Watson. One source had flatly predicted a one-year suspension was coming, calling it a “slam dunk.” Another had predicted something lesser than a year.

“I know they’re going for the full year, but I could see Harvey doubling the suspension to 12 games and going for the $8 million fine or more and the requirement of treatment,” one source said. “It really falls in line with Harvey’s background, with wanting to continue to be associated with the NFL and the public outcry against Watson.”

Roger Goodell wants a hefty punishment against Watson

“There were multiple violations that were egregious and it was predatory behavior,” Goodell said. “Those are things that we always felt were important for us to address in a way that’s responsible.”

The language Goodell used was contained in Robinson’s 16-page ruling in which she also took issue with the league escalating its request for an unprecedented punishment without proper notice while also admonishing Watson’s behavior and a described pattern of graphic sexual misconduct in his sessions with female massage therapists. In addition to Watson’s settled civil lawsuits, his former employer, the Texans, reached confidential financial settlements with 30 women who had accused Watson of inappropriate behavior.

“Although this is the most significant punishment ever imposed on an NFL player for allegations of non-violent sexual conduct, Mr. Watson’s pattern of conduct is more egregious than any before reviewed by the NFL,” Robinson wrote. “While it may be entirely appropriate to more severely discipline players for non-violent sexual conduct, I do not believe it is appropriate to do so without notice of the extraordinary change this position portends for the NFL and its players.”

Goodell’s rationale was based on Robinson’s conclusion that Watson committed four violations of the personal conduct policy with nonviolent sexual assault of four massage therapists presented at a disciplinary hearing. Although characterized as nonviolent, previous cases of sexual misconduct have triggered suspensions in the range of 4-6 games.

“I think that’s the case,’’ Goodell said. “That’s what the facts say.’”

Under NFL collective bargaining agreement rules governing appeals, Harvey is required to act in an expedited manner with no deadline.

Under Article 46 of the collective bargaining agreement, Harvey’s decision “will constitute the full, final and complete disposition of the dispute and will be binding upon the player(s), Club(s), and parties.”

According to the personal conduct policy, the appeal will be: (i) processed on an expedited basis; (ii) limited to consideration of the terms of discipline imposed; and (iii) based upon a review of the existing record without reference to evidence or testimony not previously considered. No additional evidence or testimony shall be presented to or accepted by the Commissioner or his designee. Any factual findings and evidentiary determinations of the Disciplinary Officer will be binding to the parties on appeal, and the decision of the Commissioner or his designee, which may overturn, reduce, modify or increase the discipline previously issued, will be final and binding on all parties.

Why did the NFL appeal?

“It’s a part of the CBA that two parties have the right,” Goodell said. “Either party could certainly challenge and appeal that and that was something that we thought was our right to do, as well as the NFLPA. So, we decided it was the right thing to do.”

In Elliott’s case, the NFL player challenged the NFL’s six-game suspension in a domestic violence case involving a former girlfriend. The punishment was delayed several times but ultimately upheld by a federal court.

Daniel Moskowitz, a lawyer who has represented several players in NFL disciplinary matters, including Randy Gregory, David Irving, and Darryl Washington, previously weighed in on the high-profile case.

“If the new arbitrator increases Watson’s punishment – once again, this sets up a legal battle between the union and league challenging the fairness of the penalties and Goodell’s authority to penalize the players for their alleged roles,” Moskowitz said.

“In Elliott, the NFLPA did not wait for [Harold] Henderson’s decision because Henderson was appointed after the initial punishment determination by the NFL before filing suit with the United States District Court for the Eastern District of Texas to vacate his decision. Henderson did not rule until five days after the NFLPA filed its complaint.

“The NFLPA’s central argument was that Elliott had been denied fundamental fairness to properly defend himself in the hearing because they could not access the investigators’ notes, cross-examine Thompson, and question Goodell. The judge concluded fundamental unfairness existed from the beginning of the league’s decision-making process to punish Elliot and lasted through the arbitration, as Henderson’s decision to deny key witnesses and documents was a serious misconduct.

“The NFLPA was not given the opportunity to discharge its burden to show that Goodell’s decision was arbitrary and capricious,” added Moskowitz. “At every turn, Elliott and the NFLPA were denied the evidence or witnesses needed to meet their burden. Fundamental unfairness infected this case from the beginning, eventually killing any possibility that justice would be served.

“The district court, having found it could intervene due to a lack of fundamental fairness throughout the process ruled for Elliott and granted his request for a temporary restraining order enjoining the player’s suspension from taking effect. Why fundamental fairness here? If the NFL gets a year or more, how is that fair? It’s not the conduct at issue. It’s the fairness of Goodell’s actions? Why is Watson’s punishment more severe than Robert Kraft, Jerry Jones, etc.”

What’s the point of pursuing litigation from the players’ union’s standpoint?

Watson is represented by NFLPA outside counsel Jeffrey Kessler and Houston-based criminal defense attorney Rusty Hardin.

“If the NFL announced set punishments in advance, provided clear notice to players, followed standard procedures, and issued consistent discipline, there would never be any legal battles,” Moskowitz said. “Plus, the NFL would have stood a better chance with the three district judges who ruled against the NFL.

“Like any good general, Kessler already has his battle plan in place. Where to file the action and in which district contains the most federal judges sympathetic to Watson. The temporary restraining order is already a complaint and I believe they have already started the appellate brief. The issues remain the same and until cleared up litigation will always be an option.”

Sources and legal experts had predicted NFL would appeal

Robinson wrote that the “NFL is attempting to impose a more dramatic shift in its culture without the benefit of fair notice to — and consistency of consequence — for those in the NFL subject to the Policy. While it may be entirely appropriate to more severely discipline players for nonviolent sexual conduct, I do not believe it is appropriate to do so without notice of the extraordinary change this position portends for the NFL and its players.”

Multiple league sources and legal experts had predicted that the NFL would appeal.

This marked the first case heard by Robinson and the first case under a revised personal conduct policy that was changed two years ago under a new collective bargaining agreement.

“I don’t think they will be able to stand up to the public pressure and perception,” a source said prior to the appeal being filed. “I could see Watson getting hit with a much longer suspension.”

In her ruling, she stated: “The NFL demonstrated that Mr. Watson engaged in sexualized conduct during the massage sessions. I find this evidence sufficient to demonstrate that Mr. Watson’s conduct undermined the integrity of the NFL in the eyes of the therapists. It is apparent that Mr. Watson acted with a reckless disregard for the consequences of his actions by exposing himself (and the NFL) to such public scrutiny and speculation. Mr. Watson’s predatory conduct cast ‘a negative light on the League and its players.'”

A league source had weighed in on the possibility of legal action, which it has been speculated that the NFLPA will attempt, should Watson’s punishment be dramatically increased.

“A federal lawsuit is not going to work,” the source said. “It could delay the punishment, of course, but, ultimately, it’s not going to win.”