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The 2021 NFL Draft begins a week from Thursday and ends the following Saturday. The Houston Texans will have eight picks, though none in the first or second rounds courtesy of the 2019 deal they made for Laremy Tunsil and Kenny Stills. Will the uncertain status of quarterback Deshaun Watson influence their selections?
This is a difficult question for the Texans to answer. Watson’s situation is likely nowhere near resolution and largely outside of the team’s—or even the NFL’s—control.
As of this writing, Watson is the named defendant in 23 lawsuits listed in Harris County District Court records. Through Houston attorney Tony Buzbee, nearly two dozen women contend that Watson assaulted and terrorized them during massage appointments. Watson and his attorney, Rusty Hardin, categorically deny the allegations. Hardin acknowledges that sexual acts occurred during some of the encounters but insists they were consensual and lawful.
Last week, one of the 23 plaintiffs filed a notice of nonsuit without prejudice. This means she withdrew her lawsuit but preserves the right to refile. The move came amid court rulings and attorney agreements to reveal names of the “Jane Does” suing Watson. According to her complaint, this accuser is “not a massage therapist” but rather a provider of teeth whitening and sauna detox services. She cited “privacy and security concerns” as reasons for withdrawing her suit.
Judge Rabeea Collier, elected to a four-year term in 2018, is presiding over the cases, which have been consolidated for pretrial purposes. The Houston Police Department is separately investigating a criminal complaint regarding Watson.
This multi-faceted process is only in its infancy and could last into 2022 or even 2023. The filing of a civil complaint—the focus of media to date—is just step one. The next is for Watson, through Hardin, to answer the complaints, each of which raises unique facts and allegations. Hardin will deny accusations of unlawful conduct and claim the accusers lack credible bases in law or fact.
Multiple litigation phases would occur before any trial (let alone 22 trials) took place. Depending on litigation developments, both sides would disclose such information as witness statements, medical expenses and other bills. Each might also supply sworn testimony through depositions or written interrogatories, and produce copies of relevant texts, emails, direct messages and other communications. Identification of expert witness could also occur. At every step, the attorneys would debate appropriate parameters of information exchange. All of these steps take time, especially with a busy court docket. In 2016, Houston attorney Greg Baumgartner observed that in many Harris County personal injury cases, two years can pass between the filing of a complaint and a trial. And, like other jurisdictions, the coronavirus pandemic has only complicated civil litigation. The legal process for Watson’s cases is convoluted and poised to last.
Yet at any point, Watson could negotiate financial settlements with his accusers. In an ordinary settlement, the defendant agrees to pay the plaintiff in exchange for dropping the lawsuit and accepting confidentiality. The defendant usually doesn’t have to publicly acknowledge wrongdoing or admit responsibility. Here, the situation is muddled by just how many accusers Watson is facing; some might demand a public apology. A global set of settlements would also require that each accuser accepts the terms. Stated differently, if any accuser refused to settle, her case would continue. The police investigation, moreover, isn’t contingent on the civil litigation. It will proceed until law enforcement determines whether to seek an indictment.
Meanwhile, Texans training camp is set to open on July 29. Before his legal troubles started, Watson demanded a trade. The Texans possess significant leverage. Watson signed a four-year, $156 million extension last fall and is under contract through the 2025 season. The Texans could then franchise tag him for an additional three years, meaning they control the 25-year-old’s NFL rights into his early 30s. A three-time Pro Bowler who led the league in passing last season, Watson could sit out games. But he’d forfeit salary by doing so.
Watson is also the subject of an NFL investigation. NFL spokesperson Brian McCarthy recently called the accusers’ accusations “deeply disturbing”—wording that prominent sports attorney David Cornwell finds revealing. “My antenna went up,” Cornwell recalled during last Wednesday’s episode of Undefined with Josina Anderson. Cornwell represented Jameis Winston, whom the NFL suspended for three games in 2018 for off-field behavior. “It is very difficult,” Cornwell surmised, “for the NFL to make a public statement and then walk it back with conduct. So, if the allegations are ‘disturbing’ at this point, you can almost bet that the discipline will match the ‘disturbing’ nature of the allegations—even if it never goes to trial.”
The NFL’s investigation neither has a defined timetable nor will it hinge on civil and criminal outcomes. The probe will continue until the league decides whether Watson engaged in “conduct detrimental.” Dallas Cowboys running back Ezekiel Elliott, Seattle Seahawks defensive lineman Jarran Reed and Pittsburgh Steelers quarterback Ben Roethlisberger were all suspended for alleged off-field misconduct even in the absence of criminal charges and despite many months, even years, having passed.
The league’s investigative process is that of a private business. The NFL can’t compel witnesses, including accusers, to cooperate or speak under oath, nor can it issue subpoenas for emails and texts. But it also isn’t bound by legal burdens of persuasion, such as “preponderance of the evidence” or “beyond a reasonable doubt.” Watson’s only protections are those enumerated in his contract and the collective bargaining agreement. Further, the NFL enjoys substantial authority to compel cooperation from players.
The league faces the distinct possibility of a lengthy investigation into Watson. Before the 2021 season starts, commissioner Roger Goodell could place Watson on the “exempt list,” which would prohibit Watson from playing or practicing but continue to be paid. Goodell can use the list when a player has been criminally charged (not applicable) or a league investigation leads the commissioner to believe a player engaged in various kinds of wrongdoing (including sexual assault, threatened assault and posing a safety danger). Placement “in cases in which a violation relating to a crime of violence is suspected but further investigation is required,” is intended to be “limited and temporary.” However—and of potential worry to Watson and the Texans—leave can last “until the league makes a disciplinary decision and any appeal from that discipline is fully resolved.”
The Texans, who have Tyrod Taylor and Ryan Finley as Watson’s backups, will soon be on the draft clock. The absence of a clock on their star QB’s legal quandary should be on their mind.
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