In a twist, criminal probe into Deshaun Watson may ensure he’s eligible to play entire 2021 NFL season

HOUSTON — For months, the number of investigations and legal entanglements surrounding Deshaun Watson have grown. First with 22 civil lawsuits alleging sexual misconduct, then with subsequent probes launched by the Houston Police Department, Harris County prosecutor and NFL.

All the while a question orbited his football eligibility, pondering when (or if) the NFL would step in and place Watson on the commissioner’s exempt list, a move that would effectively put the Houston Texans quarterback on paid leave as the swath of investigations ran their course. To date that hasn’t happened, creating another question:

If the NFL could essentially shadow-ban Antonio Brown in 2019 as it conducted a probe into civil lawsuit allegations against the wideout, why wasn’t it setting Watson aside in 2021 under similar circumstances?

Watson’s attorney, Rusty Hardin, essentially provided the answer this week. And it has to do with the fact that the quarterback is the subject of a criminal investigation, which Brown was not in 2019. As it turns out, that lack of a criminal investigation into Brown made a big difference for the NFL, who was effectively free to conduct (and conclude) its investigation into him whenever the league saw fit. Watson is apparently falling into another category, as the league is allegedly taking steps to avoid prying its way into the middle of other investigations.

“If you talk to any prosecutor or investigator, they don’t want the NFL out there — quite frankly — mucking in their case,” Hardin said this week. “And the NFL recognizes that. The NFL investigators are former prosecutors. They understand that process. So in due time, we will be interfacing with the NFL, but not yet.”

Jan 12, 2020; Kansas City, Missouri, USA; Houston Texans quarterback Deshaun Watson (4) reacts as he leaves the field following the game against the Kansas City Chiefs in the AFC Divisional Round playoff football game at Arrowhead Stadium. Mandatory Credit: Mark J. Rebilas-USA TODAY Sports
Texans quarterback Deshaun Watson remains on the roster and off the commissioner exempt list. (Mark J. Rebilas/USA TODAY Sports)

It’s a distinction that makes a difference for Watson to the point that he may end up being eligible throughout the 2021 season. In the past, the NFL has utilized the exempt list for a multitude of players, creating what appears to be a wide lane of discretion for commissioner Roger Goodell to act. There’s some legitimacy to that interpretation, but also some latitude for Goodell.

The league isn’t going to build a standard of precedent from one case to the next. Instead, the language of how the exempt list works creates wide latitude for Goodell to apply his standards on a case-by-case basis, often with his decisions resting on an opaque investigative process. But there are some guardrails that make a difference. For example, if a player is “formally charged” with a felony or act of violence, the exempt list has kicked in automatically in past cases.

Beyond that point, the decisions largely balance on the league’s investigative process. That's where a lot of the leeway comes in to let Watson continue playing in 2021. Where is that wiggle room coming from? Well, in this case, the NFL knows multiple bodies are conducting criminal investigations and that is what is ultimately keeping the league from requesting Watson to sit down to be questioned in the NFL’s probe.

Essentially, the league’s investigators can take the stance that Watson needs to be interviewed to make a personal conduct determination — but that interviewing him now could require revealing details of what his accusers have told league investigators. And if league investigators give Watson pieces of additional information that he can’t get elsewhere, it could end up corrupting the work of other law enforcement arms that intend to use that same information to make a criminal determination.

The NFL didn’t need to worry about that with Antonio Brown because he wasn’t under criminal investigation. And in other instances — such as with Adrian Peterson and Greg Hardy — some element of legal charging had already taken place. The ongoing investigations into Watson and what might ultimately happen in those probes is keeping the NFL from interviewing Watson. And that lack of an interview gives the NFL the leeway to leave him on the field in limbo, which is precisely what Hardin has suggested is happening.

“The NFL regularly tries to not reach out to the defendant and his lawyers and seek evidence from them until the criminal investigation is over,” Hardin said this week. “Historically, they want to make sure they don’t interfere with the criminal investigation. When the criminal investigation is over, then they will do their own separate finishing up. … I have had no contact with the NFL, except to call initially and say, ‘Whenever the time is appropriate, we will fully cooperate. You let us know.’ And that’s going to be the case.”

What that means for Watson is that his immediate football fate is tied to what happens next in the criminal probes. Should he be indicted by a grand jury in the coming months, he would likely be immediately placed on the exempt list until any charges were taken to some kind of legal conclusion. And if a grand jury were to pass on indicting him, then the NFL would be free to finish its own investigation without worry of poisoning the law enforcement well.

Simply put, the longer Watson’s criminal investigations linger without a conclusion, the longer he will be able to stay on a football field. Possibly for the entirety of 2021.

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