NFL files appeal of Deshaun Watson disciplinary ruling, seeking one-year suspension, what’s next in high-profile personal conduct situation?

The National Football League has exercised its collectively bargained right to file an appeal in the Deshaun Watson disciplinary matter, formally submitting its response in the wake of the Cleveland Browns’ star quarterback being suspended for six games Monday by jointly appointed NFL disciplinary officer Sue L. Robinson.

The NFL appeal filing states that the league is seeking an indefinite suspension of Watson with possibility of reinstatement after a one-year suspension, a significant fine and a requirement that he undergo treatment according to a league source. The league argued for a one-year suspension before Robinson during a June disciplinary hearing held in Delaware.

Roger Goodell has options surrounding the appeal under Article 46 of CBA

The NFL is expected to seek to increase Watson’s punishment, which has drawn heavy criticism for being too lenient after he settled civil lawsuits with 23 of 24 massage therapists who alleged graphic sexual misconduct. Watson was not charged with a crime by two Texas grand juries and has maintained his innocence.

One league source predicted a scenario where Watson could still receive a shorter, increased punishment of perhaps an eight to 10-game suspension and a multi-million dolar fine.

The NFL or the NFL Players Association, representing Watson in tandem with lawyer Rusty Hardin, had three days to file an appeal, and now the league has done so.

Any response to the appeal by the NFLPA must be filed in writing within two business days. Once that response is filed, then NFL commissioner Roger Goodell or a designee will decide who hears the appeal. According to Article 46 of the CBA, “the Commissioner or his designee will issue a written decision that will constitute full, final and complete disposition of the dispute and will be binding upon the player(s), Club(s) and the parties to this Agreement.”

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.”

Under Article 46 of the collective bargaining agreement, Goodell can personally hear the appeal or appoint a third-party arbiter.

“On Monday, Judge Sue L. Robinson, the independent Disciplinary Officer jointly appointed by the NFL and NFL Players Association, issued her ruling in the Personal Conduct Policy matter regarding Deshaun Watson. Under the 2020 NFL-NFLPA collective bargaining agreement (CBA), the factual findings of the Disciplinary Officer are binding and may not be appealed,” NFL spokesman Brian McCarthy said in a statement. “Judge Robinson found that Mr. Watson violated the NFL’s Personal Conduct Policy on multiple occasions and suspended him for six games. The CBA affords the NFL or NFLPA the right to appeal the discipline imposed by the Disciplinary Officer. The NFL notified the NFLPA that it will appeal Judge Robinson’s disciplinary decision and filed its brief this afternoon. Commissioner Roger Goodell will determine who will hear the appeal.”

Robinson issued a lengthy ruling on Monday explaining her legal reasoning for why she suspended Watson for six games.

“Although this is the most significant punishment ever imposed on an NFL player for allegations of nonviolent sexual conduct, Mr. Watson’s pattern of conduct is more egregious than any before ever reviewed by the NFL,” Robinson stated in her 16-page ruling, which explained that she leaned on precedent and the NFL being reactionary to public outcry, as the league did in the wake of the Ray Rice domestic violence case.

Sources and legal experts had predicted NFL would appeal

Robinson added 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. One source expressed a strong belief that the NFL would ultimately bow to public pressure and that Goodell or an arbiter he appoints will augment the punishment imposed by Robinson, perhaps by suspending Watson anywhere from two to six additional games.

This marks 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 fined… “I could see Watson getting hit with a much longer suspension.”

Although Watson was not charged with a crime by two Texas grand juries and has maintained his innocence while settling 23 of 24 civil lawsuits filed by the plaintiffs’ attorney Tony Buzbee, the NFL has a different disciplinary standard involving whether a player has tarnished the shield — the symbol of the league — through his actions.

Robinson wrote that the NFL had proven that Watson had violated the personal conduct policy. 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 a public scrutiny and speculation. Mr. Watson’s predatory conduct case ‘a negative light on the League and its players.'”

Bottom line: Robinson ruled that Watson had engaged in sexual assault as defined by the NFL through conduct that poses a genuine danger to the safety and well-being of another person and by engaging in conduct that undermines or risks the integrity of the NFL.

Goodell is expected to lean on several individuals as he makes his decision, including Jeff Pash, the NFL’s general counsel and executive vice president who oversees league investigations, as well as NFL labor relations counsel Janelle Winston and Byron Todd Jones, the chief disciplinary officer for the league and senior vice president and special counsel. Jones is a former director of the Bureau of Alcohol, Tobacco, and Firearms and the former United States Attorney for the District of Minnesota.

Ezekiel Elliott’s case provides some precedent for Watson

Dallas Cowboys running back Ezekiel Elliott was suspended for six games in 2017 for a violation of the NFL personal conduct policy. His suspension was because of accusations of domestic violence from a former girlfriend. He was not charged with a crime, but he was still suspended.

Elliott announced he planned to file an appeal, but the punishment was initially upheld by a league-appointed arbitrator. Two days later, a federal judge granted the NFLPA’s request for an injunction that placed the suspension on hold indefinitely.

Elliott resumed playing for the Cowboys, but the Fifth Circuit U.S. Court of Appeals reinstated the suspension. He was then granted a temporary restraining order. Later, a judge from the New York Southern District Court denied the preliminary injunction and reinstated the suspension again.

It was delayed again after an emergency motion was granted by the United States Court of Appeals for the Second Circuit of Appeals. The suspension was later reinstated by that court, and Elliott accepted the suspension and withdrew from further attempts to appeal the league’s punishment.

The Elliott case could be instructive for any potential Watson appeal. That’s because it has been ruled multiple times that Goodell and the NFL have the collectively bargained power to make these disciplinary decisions regardless of the merits or lack thereof of a case.

“When the judge’s decision was overturned in the Elliott case, the court said they did not have the power or jurisdiction to meddle in what amounted to a private dispute in a collective bargaining agreement, a private agreement between two parties,” Moskowitz said. “The suspension was upheld and imposed. Both sides agreed to have Robinson be the disciplinary officer. What any appeal is going to attack is Goodell’s unfettered power, but, news flash, they allowed this in the CBA. Robinson clearly ruled down the middle. She was very fair. The issue is not the punishment or the severity of the punishment. It’s simple. Does Roger have the power to make these decisions? It’s a resounding ‘yes.'”

A league source 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.”