USA TODAY Sports
The 16-page decision by Judge Sue L. Robinson gives the NFL the factual findings it needs to impose, through the appeals process, a much longer suspension on Browns quarterback Deshaun Watson. But the written ruling does not leave the NFL unscathed.
Judge Robinson determined that Watson did what he is accused of doing and basically lied when he denied it. But he also declined to suspend Watson for a full year, because he concluded that league policy and precedent did not justify something so strict for a “non-violent sexual assault.”
In the first paragraph of the conclusion of his ruling, Judge Robinson chides the NFL for trying to do something that anyone who pays attention to the league knows it does: make up the rules as they go along.
“The NFL may be a ‘forward-looking’ organization, but it is not necessarily a forward-thinking organization,” Judge Robinson wrote. “The same way the NFL responded to violent conduct [committed by former Ravens running back Ray Rice] after a public outcry, so it appears the NFL is responding to another public outcry over the conduct of mr. Watson. At least in the above situation, the Policy was changed and applied proactively. Here, the NFL is attempting to impose a more dramatic change in its culture without the benefit of fair notice and consistency of consequences for those in the NFL subject to the Policy.”
Although accurate, this passage ignores reality and defies common sense. The whole apparatus of the Personal Conduct Policy is about managing and, ideally, avoiding public outcry. The league polices players’ private lives 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 to not implement a proper procedure to make sure refs don’t miss pass interference at a key moment in a playoff game (which is entirely predictable) and quite another to not have a rule on the books to impose appropriate discipline on a player who used his status as a pretext to create a private massage that he actively tried to engineer into sexual encounters against the wishes of those providing the massages. As the league said at the hearing before Judge Robinson, the requested punishment is unprecedented because the conduct is unprecedented.
Judge Robinson, a lawyer and former judge, handled this case too much like a lawyer. He accepted NFLPA attorney Jeffrey Kessler’s effective and persuasive arguments without stepping back and applying common sense.
Again, he concluded that Watson was guilty. But he was bogged down by the fact that, in his view, the league had not fairly warned Watson that his habit/fetish of hiring massage therapists and making unwanted sexual advances towards them could get him suspended for a year whole
“The NFL argues that consistency is not possible, because there are no players in a similar situation,” Judge Robinson writes on page 13 of his decision. And the NFL is right. He is the first person to have done this. What could or should the league have done differently in crafting and enforcing its policies to give Watson fair notice that he could be suspended for a full season if he did what Judge Robinsons concluded he did?
As Chris Simms pointed out on PFT Live, the average player would assume that doing the things Watson did would get them suspended for a year, if not kicked out of the game for good. This question of whether policies and precedents technically warn players of possible punishment for such misconduct assumes that they are not oblivious to these subtleties and technicalities. Most employees in any company are.
But employees have common sense. Not only did Watson commit the acts (as Judge Robinson concluded), but he also lied about doing so through his categorical denial of wrongdoing, and his broad and implausible claim that he never had an erection during a massage, even though some of the women he vouched for him admitted to NFL investigators that he did. What should someone who engages in this type of behavior fairly expect as punishment?
It is not clear from the ruling how or why Judge Robinson handed down a six-game suspension for Watson. He notes that the most common discipline for “violence and sexual acts” is six games, and that the most severe punishment 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 does Jameis Winston (the player who was suspended three games for “non-violent sexual assault,” we’re told) in a spontaneous “non-violent sexual assault” incident with an Uber driver relate to the deliberate and extensive Watson’s habit of using his name and fame to arrange private massages that he tried to turn into sexual encounters, even if the masseurs weren’t interested in it?
There is another problem with Judge Robinson’s decision as it relates to 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 punishment.
“With respect to what the 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 lawsuit filed,” he wrote Judge Robinson. at page 14. “As to mitigating factors, he is a first offender and had an excellent reputation in his community prior to these events. He cooperated with the investigation and has paid restitution.”
What does a “first offender” look like when there are 24 alleged crimes? How is he a “first time offender” when the New York Times has reported that he hired at least 66 women to give private massages over a 17-month period? And how does his “excellent reputation” before the four accusations that became the central point of the mesh of the hearing with the existence of 24 lawsuits, or with the fact that he managed to dedicate to this habit/fetish secretly for months if not? years? Although such evidence may not have been relevant to the question of whether he violated the policy, such evidence should have been considered in relation to the question of aggravation and/or mitigation.
Before I got to Judge Robinson’s ruling, I said there was no way to know how he got to the six games without reviewing the decision in full detail. Now that I have it, I still don’t know how it got to six games. She doesn’t explain it properly. And its effort to do so is woefully incomplete.
It’s almost as if he knew the NFL would exercise its prerogative to appeal its decision to the commissioner, and ultimately pick whatever number it wants, and therefore decided not to bother applying the elbow grease necessary to do it. reasoning in the selection of six parties as clear as it should be. His reasoning doesn’t matter.
Once he found out that he did, in fact, he might as well have pulled the number of games out of a hat. Ultimately, Goodell will do what he wants. And based on Judge Robinson’s findings, why wouldn’t Goodell still want the full-season suspension he ordered his staff to request from Judge Robinson?