Roger Goodell adamant Deshaun Watson should be suspended for at least a year, but will Peter C. Harvey follow his lead?

    Roger Goodell was quite clear about what he believes should happen in the unresolved disciplinary matter involving quarterback Deshaun Watson.

    Roger Goodell did not mince words or hold back one iota of conviction about what he stated he emphatically believes should happen in the unresolved disciplinary matter involving embattled Cleveland Browns quarterback Deshaun Watson.

    In the wake of Watson being suspended for six games with no fine by jointly appointed NFL disciplinary officer Judge Sue. L. Robinson, Goodell was adamant that the punishment of the three-time Pro Bowl passer should be significantly increased by his designee, former New Jersey Attorney General Peter C. Harvey, under the active appeal process. Goodell wants Watson suspended indefinitely, and to miss at least one year before he can be reinstated.

    Whether Harvey, a member of the NFL diversity committee who helped write the current personal conduct policy adopted in the new collective bargaining agreement, will comply with Goodell’s wishes as his designee is yet to be determined with certainty.

    What’s likely to happen in Deshaun Watson disciplinary matter?

    League sources and legal experts told Pro Football Network they will be mildly surprised, if not shocked, if Harvey, a former New Jersey Attorney General with an extensive background in prosecuting domestic violence and sexual assault cases, doesn’t levy a significant punishment against Watson.

    “I know they’re going for the full year, but I could see Harvey doubling the suspension to 12 games and going for the $8 million fine or more and the requirement of treatment,” one source said. “It really falls in line with Harvey’s background, with wanting to continue to be associated with the NFL and the public outcry against Watson.”

    Another source flatly predicted the one-year suspension is coming, calling it a “slam dunk.”

    An additional source said that regardless of whether it’s going only to delay the ultimate punishment imposed by the NFL, the NFL Players Association will file for a temporary restraining order after the suspension is increased to search for a judge inclined to rule in their favor.

    What did Roger Goodell have to say?

    Goodell spoke bluntly about the case during the NFL owners’ meeting in Minneapolis that was convened to approve the Denver Broncos’ $4.65 billion sale to Rob Walton’s ownership group.

    “We’ve seen the evidence, she was very clear about the evidence, she reinforced the evidence,’” Goodell said during a press conference. “There were multiple violations that were egregious and it was predatory behavior. Those are things that we always felt were important for us to address in a way that’s responsible.”

    The language Goodell used was contained in Robinson’s 16-page ruling in which she took issue with the league escalating its request for an unprecedented punishment without proper notice while also admonishing Watson’s behavior and a described pattern of graphic sexual misconduct in his sessions with female massage therapists. Two Texas grand juries didn’t charge Watson with a crime, but he settled 23 of 24 civil lawsuits, and his former employer, the Houston Texans, reached confidential financial settlements with 30 women who accused Watson of inappropriate behavior.

    “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,” Robinson wrote. “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 notice of the extraordinary change this position portends for the NFL and its players.”

    Goodell’s rationale? It’s based on Robinson’s conclusion that Watson committed four violations of the personal conduct policy with nonviolent sexual assault of four massage therapists presented at a disciplinary hearing. Although characterized as nonviolent, previous cases of sexual misconduct have triggered suspensions in the four-to-six-game range.

    “I think that’s the case,’’ Goodell said. “That’s what the facts say.’”

    Under NFL collective bargaining agreement rules governing appeals, Harvey doesn’t have a deadline to issue a ruling, but it does need to be filed in an expedited fashion.

    Under Article 46 of the collective bargaining agreement, Harvey’s decision “will constitute the full, final and complete disposition of the dispute and will be binding upon the player(s), Club(s), and parties.”

    According to the personal conduct policy, the appeal will be: (i) processed on an expedited basis; (ii) limited to consideration of the terms of discipline imposed; and (iii) based upon a review of the existing record without reference to evidence or testimony not previously considered. No additional evidence or testimony shall be presented to or accepted by the Commissioner or his designee. Any factual findings and evidentiary determinations of the Disciplinary Officer will be binding to the parties on appeal, and the decision of the Commissioner or his designee, which may overturn, reduce, modify or increase the discipline previously issued, will be final and binding on all parties.”

    Why did the NFL appeal?

    “It’s a part of the CBA that two parties have the right,” Goodell said. “Either party could certainly challenge and appeal that and that was something that we thought was our right to do, as well as the NFLPA. So, we decided it was the right thing to do.”

    It’s hard to think that Harvey won’t rule in the NFL’s favor considering that he helped personally write the policy.

    He was also a designee in the case of Dallas Cowboys running back Ezekiel Elliott, who challenged the NFL’s six-game suspension in a domestic violence case involving a former girlfriend. The punishment was delayed several times but ultimately upheld by a federal court. Harold Henderson was the arbitrator appointed to hear the case for the NFL.

    More on Peter C. Harvey

    Harvey is a law partner at Patterson Belknap.

    Harvey previously presided over civil and criminal trials as an attorney general and a former federal prosecutor.

    He is a consulting expert for the NFL’s diversity advisory committee. He was named a Super Lawyer in the area of business litigation.

    How would a potential legal challenge unfold?

    Daniel Moskowitz, a lawyer who has represented several players in NFL disciplinary matters, including Randy Gregory, David Irving, and Darryl Washington, weighed in on the high-profile case.

    “If the new arbitrator increases Watson’s punishment – once again, this sets up a legal battle between the union and league challenging the fairness of the penalties and Goodell’s authority to penalize the players for their alleged roles,” Moskowitz said. “In Elliott, the NFLPA did not wait for Henderson’s decision because Henderson was appointed after the initial punishment determination by the NFL before filing suit with the United States District Court for the Eastern District of Texas to vacate his decision. Henderson did not rule until five days after the NFLPA filed its complaint. The NFLPA’s central argument was that Elliott had been denied fundamental fairness to properly defend himself in the hearing because they could not access the investigators’ notes, cross-examine Thompson, and question Goodell. The judge concluded fundamental unfairness existed from the beginning of the league’s decision-making process to punish Elliot and lasted through the arbitration, as Henderson’s decision to deny key witnesses and documents was a serious misconduct.

    “The NFLPA was not given the opportunity to discharge its burden to show that Goodell’s decision was arbitrary and capricious,” added Moskowitz. “At every turn, Elliott and the NFLPA were denied the evidence or witnesses needed to meet their burden. Fundamental unfairness infected this case from the beginning, eventually killing any possibility that justice would be served. The district court, having found it could intervene due to a lack of fundamental fairness throughout the process ruled for Elliott and granted his request for a temporary restraining order enjoining the player’s suspension from taking effect. Why fundamental fairness here? If the NFL gets a year or more, how is that fair? It’s not the conduct at issue. It’s the fairness of Goodell’s actions? Why is Watson’s punishment more severe than Robert Kraft, Jerry Jones, etc.”

    What’s the point of pursuing litigation from the players’ union’s standpoint?

    Watson is represented by NFLPA outside counsel Jeffrey Kessler and Houston-based criminal defense attorney Rusty Hardin.

    “If the NFL announced set punishments in advance, provided clear notice to players, followed standard procedures, and issued consistent discipline, there would never be any legal battles,” Moskowitz said. “Plus, the NFL would have stood a better chance with the three district judges who ruled against the NFL.

    “Like any good general, Kessler already has his battle plan in place. Where to file the action and in which district contains the most federal judges sympathetic to Watson. The temporary restraining order is already a complaint and I believe they have already started the appellate brief. The issues remain the same and until cleared up litigation will always be an option.”

    Sources and legal experts had predicted NFL would appeal

    Robinson wrote that 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. While it may be entirely appropriate to more severely discipline players for nonviolent sexual conduct, I do not believe it is appropriate to do so without notice of the extraordinary change this position portends for the NFL and its players.”

    Multiple league sources and legal experts had predicted that the NFL would appeal.

    This marked the first case heard by Robinson and the first case under a revised personal conduct policy that was changed two years ago under a new collective bargaining agreement.

    “I don’t think they will be able to stand up to the public pressure and perception,” a source said prior to the appeal being filed. “I could see Watson getting hit with a much longer suspension.”

    In her ruling, she stated: “The NFL demonstrated that Mr. Watson engaged in sexualized conduct during the massage sessions. I find this evidence sufficient to demonstrate that Mr. Watson’s conduct undermined the integrity of the NFL in the eyes of the therapists. 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 a public scrutiny and speculation. Mr. Watson’s predatory conduct case ‘a negative light on the League and its players.'”

    A league source weighed in on the possibility of legal action, which it has been speculated that the NFLPA will attempt, should Watson’s punishment be dramatically increased.

    “A federal lawsuit is not going to work,” the source said. “It could delay the punishment, of course, but, ultimately, it’s not going to win.”

    The official ruling on Deshaun Watson

    The PDF below is the full ruling on Deshaun Watson, as written by Robinson.

    [pdf-embedder url=”” title=”Deshaun Watson Ruling”]

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