Deshaun Watson prepares for legal fight as NFL seeks historic suspension

Tuesday will be a crucial day for Deshaun Watson situation.

Retired federal judge Sue Robinson, acting as a neutral disciplinary officer under the NFLnew procedures, must hold a hearing where the league will face representatives of Watson and the NFLPA. They will make dueling arguments over whether Watson violated Section 46 of the CBA and, if so, for how long he should be suspended.

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According The Wall Street Journalthe NFL wanna Robinson will suspend Watson for a minimum of one year and leave it to the league’s discretion to decide when he returns thereafter. After the year, the league would allow Watson to request his return. There would be no guarantee the league would approve the petition, meaning Watson could remain suspended indefinitely beyond a year.

The NFL believes that such a long, indeterminate sentence is warranted given the number of sexual assault charges, the seriousness of those charges, the pattern of misconduct, the evidence (texts and testimony) and the possibility that Watson could be sued by others.

Watson has repeatedly denied wrongdoing. In March, a grand jury in Texas decreases to charge him criminally. It is colonized 20 of 24 charges against him, but the remaining cases could linger until 2023 before being resolved.

Whether Watson broke a law is not the applicable test under the league’s workplace policy; instead, it asks if any player has engaged in conduct detrimental to the NFL. Over the past twelve years, several top players accused of misconduct with women have been suspended for multiple games – Ben Roethlisberger (six games, later reduced to four games), Ezekiel Elliott (six games) and Jarran Reed ( six games) – without finding that they broke the law. The league in these cases concluded that the players had engaged in harmful conduct.

Robinson, who served as a federal district judge for 26 years, might be wary of a suspension ranging from one year to indefinite. This type of penalty could be considered more like a ban, since only the league would decide if and when it ends. Robinson could also infer that the prospect of future litigation is a speculative basis for awarding a penalty for past misconduct. Robinson could instead conclude that if the league wants to punish Watson for future lawsuits, it can do so in the future.

The league has a mixed history with the use of indefinite suspensions. In 2014, former federal judge Barbara Jones, while a referee, overturned an indefinite suspension imposed on running back Ray Rice of the Baltimore Ravens. The league originally suspended Rice two games for a domestic violence incident with his then-fiancée. After TMZ released a disturbing video, NFL Commissioner Roger Goodell suspended Rice indefinitely. Jones concluded that the NFL was not authorized to extend the suspension to an indefinite period in the absence of new facts.

The NFLPA can also point out that if Goodell is authorized by a collectively negotiated document – ​​the NFL player‘s contract – to issue an indefinite suspension, the authorization stems from the “integrity of play” clause. Under it, the commissioner can suspend a player “for a fixed or indefinite period” when the player accepts bribes, associates with players or participates in related activities that have nothing to do with do with the types of charges against Watson. That’s why, the NFLPA can insist, the league’s indefinite suspension of Atlanta Falcons catcher Calvin Ridley for bet on games does not support a similar suspension of Watson.

If Robinson denies the NFL’s request and suspends Watson for a fixed term, such as a season or 12 games, the new version of Article 46 allows the league to appeal its decision to Goodell. The commissioner would then hear the appeal, or he could choose a designated person to carry out this task.

The appeals structure suggests that if Goodell feels Watson should be suspended for a year and an indefinite period thereafter, then Goodell can make it happen. He could simply overrule Robinson and impose whatever penalty he wants through a written decision. This decision, according to article 46, “would constitute [a] full, final and complete settlement of the dispute and will be binding on all parties involved.

However, there are at least three complicating factors.

First, Goodell, who is not a lawyer, might be reluctant to boldly ignore the legal reasoning of a retired federal judge and former federal prosecutor. Even if Goodell appoints a designated person, such as an attorney who works for the NFL, to handle the appeal, that person likely wouldn’t have the authority of a former federal judge.

Second, Goodell or a designate would likely undermine the spirit of the new disciplinary process by imposing the sanction originally requested by the league. This is the first time the process has been used. If the NFL acts in a way that suggests Robinson’s role was irrelevant, the resulting perception could impact the quality of legal professionals who would be willing to hear the next high-profile case.

Third, if Watson sues the NFL after Goodell/Designate has ruled on an appeal, the federal judge hearing the case may be more inclined to conclude that the league acted arbitrarily. The logic would be that the reasoning offered by the disciplinary officer, who happens to be another member of the small closed club of federal judges, was not given sufficient deference.

The last point is critical for the NFL if it wishes to avoid a lengthy legal battle. The NFLPA has retained the services of renowned sports litigator Jeffrey Kessler (who won NCAA vs. Alston in a unanimous U.S. Supreme Court decision last year) to work on the Watson case.

Kessler knows the NFL would be favored in the event of a dispute because of the applicable standard of review. Kessler would face the daunting task of convincing a federal judge to overturn a decision by Goodell or his delegate when federal law requires judges to give great deference to an arbitrator (i.e. Goodell/designate) .

The judge would also be bound by the factual record prepared by Goodell/the named person. In other words, there would be no trial and only limited discovery. That’s why despite Tom Brady’s persuasive attack on the science of the NFL in Deflategate, he ultimately lost in court: the NFL controlled the facts on which the judges had to rely.

But Brady won the first round before Judge Richard Berman and his case lasted nearly a year. Does the NFL want an extended battle over Watson, one that could raise questions about the process used to try him and one where a feared litigant is representing Watson? Only time will tell.

In the meantime, both parties could to negotiate a settlement, in which Watson would accept a suspension and agree not to appeal or sue. But given the NFL’s request for a lengthy suspension with no clear end date, and given Watson’s insistence that he broke no laws, they don’t seem ready to find ground. ‘agreement.

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