Inside Judge Sue L. Robinson’s decision on Deshaun Watson, and what could come next
Following a three-day hearing, as well as a review of post-hearing submissions from both the NFL as well as the NFLPA and Cleveland Browns quarterback Deshaun Watson, retired federal judge Sue L. Robinson issued a 16-page decision on Monday, in which she held that the quarterback should be suspended for a violation of the NFL’s personal conduct policy.
In the report, which you can read here, Judge Robinson dives into whether Watson violated the league’s personal conduct policy, as well as what the appropriate discipline should be for any violations. It is worth noting that Judge Robinson at the outset only considered five of the cases pending against Watson, and then reduced that number to four cases, as the fifth was based on “media reports.”
Here is a summary and analysis of Judge Robinson’s findings, as well as thoughts on where this could go next.
The applicable standard of analysis
(AP Photo/Ron Schwane)
At the outset, it is worth noting that Judge Robinson applied a “preponderance of the evidence” standard in her decision. Many are familiar with the “beyond a reasonable doubt” standard applied in criminal cases, and as a means of thinking what the NFL had to prove, the “beyond a reasonable doubt” standard can often be described as a “99% certainty.”
However, the “preponderance of the evidence” standard could also be described as “more likely than not.” To keep with the percentage analogy, where “beyond a reasonable doubt” requires proof at a 99% level, the “preponderance of the evidence” standard looks more like 51% to 49%.
This is exactly how I would describe these standards to juries back when I was practicing law, a lifetime ago.
Having set the framework, we can work through her analysis.
Watson violated three provisions of the league's personal conduct policy
(Photo by Nick Cammett/Getty Images)
We next turn to Judge Robinson’s analysis of whether Watson violated the league’s personal conduct policy. Specifically, in her opinion Judge Robinson analyzed whether Watson violated the policy by engaging in: Sexual assault; conduct that poses a genuine danger to the safety and well-being of another person; and conduct that undermines or puts at risk the integrity of the NFL.
While building an evidentiary record Judge Robinson characterized the NFL’s investigation in her decision. She noted that Watson would use Instagram to connect with potential therapists, and to “make sure that the therapists were comfortable massaging certain areas of his body, particularly his lower back, glutes, abs, and groin area.” She also noted, and relies upon this fact throughout her analysis, that Watson:
…requested that the therapists use a towel to cover his private parts rather than the more typically used sheet. Mr. Watson often provided his own towels, which have been variously described as “medium/small” towels or “Gatorade” towels. In re: Matter of Deshaun Watson at 5.
Furthermore, the NFL investigation outlined the following alleged behavior which was characterized as “sexualized:”
…each of the therapists allege that Mr. Watson engaged in what the NFL has characterized as “sexualized behavior.” This behavior includes Mr. Watson’s insistence that the therapists work on his focal points with just a towel as a cover. When he turned over on his back, it is alleged that Mr. Watson exposed his erect penis and purposefully contacted the therapists’ hands and arms multiple times with his erect penis. One of the therapists alleges that Mr. Watson not only contacted her arm multiple times, but that he ejaculated on her arm. There is no allegation that Mr. Watson exerted any force against any of the therapists. Id.
In her analysis of whether Watson engaged in conduct that qualified as sexual assault, Judge Robinson noted that the CBA does not define “sexual assault.” She further noted that one of the league’s investigators defined the term at the hearing as the “unwanted sexual contact with another person.” Accepting this definition, Judge Robinson found the NFL needed to prove under the “preponderance of the evidence” standard previously outlined that three things occurred: “(1) Mr. Watson intended to cause contact with his penis; (2) he did so for a sexual purpose; and (3) he knew that such contact was unwanted.”
Judge Robinson outlined how there was no testimony from Watson regarding any inadvertent touching, and further outlined that Watson offered a categorical denial of the allegations, including that he ever developed an erection during a massage. However, Judge Robinson did not give these denials from Watson much weight:
It is difficult to give weight to a complete denial when weighed against the credible testimony of the investigators who interviewed the therapists and other third parties. Moreover, the totality of the evidence (including the undisputed facts relation to Mr. Watson’s use of towels, his focus points, and the not uncommon experience of massage therapists to have contact with the erect penis of their male clients) lends support to my conclusion that it is more probable than not that Mr. Watson did have erections and that his erect penis contacted the therapists as claimed by them. In re: Matter of Deshaun Watson at 7
In finding that there was a sexual purpose, the second prong of the analysis, Judge Robinson noted Watson’s pattern of conduct:
With respect to whether the contact was intentional, the matter of intent generally must be inferred from circumstantial evidence in the absence of an admission. in this case, Mr. Watson reached out to women whose professional qualifications were unknown and unimportant to him. He insisted on using a towel, increasing the probability of exposure. He insisted on having the therapist focus on areas of his body that not uncommonly triggered erections. And he engaged in this pattern of conduct multiple times. I find this sufficient circumstantial evidence to support the NFL’s contention not only that contact occurred, but that Mr. Watson was aware that contact probably would occur, and that Mr. Watson had a sexual purpose — not just a therapeutic purpose — in making these arrangements with these particular therapists. In re: Matter of Deshaun Watson at 8
Judge Robinson also found that the NFL produced sufficient evidence to prove that Watson knew the conduct was unwanted:
Moreover, there is credible evidence that one of the therapists expressed her discomfort of the unwanted contact to Mr. Watson during the sessions, and another of the therapists ended the session early. Given that none of these therapists accepted Mr. Watson’s invitations to engage in further therapy sessions, I find the evidence sufficient to demonstrate that Mr. Watson knew, or should have known, that any contact between his penis and these therapists was unwanted. Id.
With respect to the second violation of the NFL personal conduct policy, regarding conduct that poses a genuine danger to the safety and well-being of another person, Judge Robinson again noted that there was no definition in the CBA for such conduct, and that the NFL did not provide such a definition.
Furthermore, Judge Robinson found that the league was taking the “occasion to broadly define the concepts of ‘genuine danger,’ safety,’ and well-being’ in its charge against Mr. Watson.” However, as she noted, “it is the NFL’s policy and it can set the rules.”
As such, Watson’s conduct was a violation of this portion of the personal conduct policy as well:
I accept the fact that a work environment with sexualized conduct is not a safe environment, and I accept as credible the testimony of these therapists that they felt unsafe and suffered emotional distress as a result of their massage sessions with Mr. Watson. Based on the NFL’s broad interpretation of this prohibited conduct as reflected in the evidence it chose to present, I find that the NFL has carried its burden to prove, by a preponderance of the evidence, that Mr. Watson’s conduct posed a genuine danger to the safety and well-being of another person. In re: Matter of Deshaun Watson at 10
With respect to the issue of Watson’s conduct undermining or putting at risk the integrity of the NFL, Judge Robinson found that by identifying himself as a player for the NFL to initiate contact with the therapists, and using his ties to the Houston Texans to bolster his requests for massages, he “undermined the integrity of the NFL in the eyes of the therapists.”
Judge Robinson also found that “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.” She also held that his “predatory conduct” shined a “negative light on the league and its players,” which was also evidence that he violated this provision of the personal conduct policy.
As such, Judge Robinson found that in her mind, the NFL had demonstrated it was more likely than not that Watson had violated these three provisions of the league’s personal conduct policy.
The discipline analysis
(Ken Blaze-USA TODAY Sports)
In the wake of her decision, the main focus has been on the six-game suspension levied by Judge Robinson. That is where we turn next.
At the outset, Judge Robinson noted that it was her responsibility to review any recommended discipline for “consistency of treatment, uniformity of standards for parties similarly situated, and patent unfairness or selectivity.” That required, in her mind, examining prior discipline imposed by the NFL, as well as an analysis of mitigating and/or aggravating factors, all with the “goal of reaching a fair and consistent disciplinary determination.”
Judge Robinson outlined next what both the NFL as well as Watson and the NFLPA argued with respect to discipline. As Judge Robinson framed the arguments, the NFL argued that Watson “be suspended for at least the entire 2022 NFL regular and post-season and not be permitted to return unless he satisfies any conditions imposed for reinstatement.” According to her decision, the NFL conceded that the punishment was “unprecedented,” because the conduct alleged was also “unprecedented:”
The NFL’s reasoning is reflected in the following testimony of one of its investigators: “[E]ven with just the four [women], I think we haven’t had someone who over the course of a year-plus time … [committed] sexual assault against four different people, and he uses, again, invokes the league in some ways of doing so.” In re: Matter of Deshaun Watson at 12
In contrast, the NFLPA on behalf of Watson pointed to the “history of the Policy and discipline imposed under the Policy.” According to Judge Robinson, the NFLPA pointed to the aftermath of the Ray Rice suspension, and how the NFL altered its Policy to “include a presumptive [six]-game suspension for certain first-time violent offenders.”
Such incidents were described by Judge Robinson as violations involving: Criminal assault or battery (felony), domestic, dating or other forms of family violence, or sexual assault involving physical assault or committed against those incapable of giving consent, such as minors.
Judge Robinson then refers to an exhibit used during the hearing that “indicates that since the revisions to the Policy (from 2015 to date), by far the most commonly-imposed discipline for domestic or gendered violence and sexual acts is a [six]-game suspension.” Furthermore, suspensions longer than six games involved either “multiple incidents of domestic violence” or the “assault of multiple victims” — both of which earned eight-game suspensions — or the lone case of a ten-game suspension for “multiple incidents of domestic violence for which the player pled guilty to battery.”
In her decision, Judge Robinson states that “[i]t is undisputed that Mr. Watson’s conduct does not fall into the category of violent conduct that would require the minimum six-game suspension,” those being the categories outlined above. She also notes that it is also “undisputed that prior cases involving non-violent sexual assault have resulted in discipline far less severe than what the NFL proposes here, with the most severe penalty being a three-game suspension for a player who had been previously warned about his conduct.”
Then, Judge Robinson states that she is bound “by standards of fairness and consistency of treatment among players similarly situated.” While the NFL argues that Watson’s conduct is “unprecedented,” Judge Robinson holds that “ignoring past decision because none involve ‘similar’ conduct” puts the NFL in the position of “equating violent conduct with non-violent conduct” and furthermore the league:
…has elevated the importance of the latter without any substantial evidence to support its position. 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 the notice of the extraordinary change this position portends for the NFL and its players. In re: Matter of Deshaun Watson at 13-14
This “notice” argument is the crux of Judge Robinson’s reasoning for her discipline decision. If the NFL were to succeed in their argument for a much longer suspension, she argues, then it would amount to an unjust, post-hoc determination of what constitutes prohibited conduct that would prevent players from predicting the consequences of their behavior:
Although I have found Mr. Watson to have violated the Policy, I have done so using the NFL’s post-hoc definitions of the prohibited conduct at issue. Defining prohibited conduct plays a critical role in the rule of law, enabling people to predict the consequences of their behavior. It is inherently unfair to identify conduct as prohibited only after the conduct has been committed, just as it is inherently unjust to change the penalties for such conduct after the fact. As I’ve noted above, the NFL is a private organization and can operate as it deems fit, but the post-hoc determination of what constitutes the prohibited conduct here cannot genuinely satisfy the “fairness” prong of the standard of review or justify the imposition of the unprecedented sanction requested by the NFL. In re: Matter of Deshaun Watson at 14
In essence, Judge Robinson is arguing that because the NFL had not established definitions for such prohibited conduct as that which Watson engaged in, and had not outlined what the discipline could be for a violation of such conduct, then imposing the sanctions sought by the league would be unjust and fail to satisfy the “fairness” test for the imposition of discipline under the CBA.
Judge Robinson also noted that both aggravating and mitigating factors were in play with Watson. On the mitigating side, Watson is considered a “first-time offender,” and she noted his “excellent reputation in the community.” She also noted that he “cooperated in the investigation and has paid restitution.”
However, she also noted that Watson displayed a “lack of expressed remorse,” along with his “tardy notice to the NFL of the first-filed lawsuit,” listing those as aggravating factors.
In finding for a six-game suspension, Judge Robinson noted that “it seems the NFL is responding to yet another public outcry about Mr. Watson’s conduct.” This would seem to play into the imposition of additional discipline given, as Judge Robinson argued that the public scrutiny over Watson’s conduct was evidence that his actions impacted the “integrity” of the game. However, on the discipline side, she uses it to bolster her imposition of a suspension less than the one the NFL was seeking. “Here, 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.”
In finding for a six-game suspension, she stated: “Mr. Watson is hereby suspended for six (6) regular-season games without pay. 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.” She also found that it would be “appropriate” for Watson to limit future therapy to team-directed, and approved, therapists.
Where do we go from here?
(AP Photo/Richard Drew)
As noted by Judge Robinson in the final sentence of her decision, “[t]he parties have three (3) business days to appeal this disciplinary determination.”
So yes, this is not over yet.
The NFLPA released a statement on Sunday night indicating that they would honor the findings of Judge Robinson. While there is reporting to the effect that Watson and the NFLPA are disappointed in the decision, there has been no indication from the NFLPA that they would appeal the findings.
Whether the NFL decides to appeal, however, is unclear. The league released a statement indicating that they would “review” the findings and make a determination on later action.
If the league does decide to appeal, they have until Thursday to note the appeal, unless “all parties” agree to extend the deadline, which is a possibility thanks to a provision in the CBA. If the league does appeal, the matter would be decided by Commissioner Roger Goodell, or someone appointed by the Commissioner to decide the appeal.
Are there grounds for an appeal? There are potential avenues the league could pursue if it wanted to note the appeal. As a threshold matter, any appeal would be based on the record and evidence relied upon by Judge Robinson to make her findings. As illustrated above, Judge Robinson found that Watson’s conduct violated the league’s personal policy in three ways: It constituted sexual assault, it posed a genuine danger to the safety and well-being of another person, and it undermined or risked the integrity of the league.
The evidentiary record before Judge Robinson was enough for her to make those findings. Her issue was with the idea of prior notice to players and league employees that conduct such as Watson’s would result in the “unprecedented” discipline sought by the league. As she argued, the “post-hoc” imposition of discipline in this case would be “unjust.”
The NFL could decide that given her evidentiary findings, there is enough to warrant an appeal, and then stress that the distinctions drawn by Judge Robinson in her findings on discipline, as well as the fact that the allegations are more violent in nature than described in Judge Robinson’s findings, require the imposition of more discipline in this case. That was the case made by our own Doug Farrar in the wake of the six-game suspension announcement.
Or, the league might decide to abide by the ruling, and move on. This could be a case where the NFL takes the next few days to gauge public reaction to inform their decision.
Now, if the league does appeal — and Commissioner Goodell imposes more discipline than the six games — that could shift this matter into federal court. If the Commissioner does lengthen the suspension on an appeal, that would effectively exhaust Watson’s internal options within the league under the CBA.
At that point, he can challenge the disciplinary ruling in federal court, and argue that the league failed to adhere to the CBA by in effect bypassing Judge Robinson. While other players, such as Tom Brady, have failed in attempts at suing the league in discipline matters, this would be the first time a court would be asked to interpret the terms of the new CBA, and bypassing Judge Robinson in this manner might be found to be a violation.
There is also a scenario where if this this the path this matter travels, Watson finds his way to the field sooner rather than later. If Watson’s suspension is increased by Commissioner Goodell — or a duly-appointed designee named to hear the appeal — then Watson’s attorney would likely file for an injunction looking to “stay” the imposition of the discipline, clearing a way for him to play while the legal process plays out in federal court.
So, we might be at the beginning of the end.
Or just the end of the beginning.
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