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Judge Robinson’s dig at the NFL is accurate, but in the Deshaun Watson case it was unavoidable

Mike Florio and Chris Simms sift through Sue L. Robinson’s findings in the Deshaun Watson hearing, including why the NFL is not a “forwardfacing” one, why the QB’s conduct is more egregious than any before and more.

The 16-page decision from Judge Sue L. Robinson gives the NFL the factual findings necessary to impose, through the appeal process, a much longer suspension on Browns quarterback Deshaun Watson. But the written ruling does not leave the NFL unscathed.

Judge Robinson determined that Watson did what he’s accused of doing, and that he basically lied when he denied it. But she also declined to suspend Watson for a full year, because she concluded that the league’s policy and precedents did not justify something so stringent for a “non-violent sexual assault.”

In the first paragraph of the conclusion to her ruling, Judge Robinson chides the NFL for trying to do something that anyone who pays attention to the league knows that it does -- make the rules up as it goes.

“The NFL may be a ‘forward-facing’ organization, but it is not necessarily a forward-looking one,” Judge Robinson wrote. “Just as the NFL responded to violent conduct [committed by former Ravens running back Ray Rice] after a public outcry, so it seems the NFL is responding to yet another public outcry about Mr. Watson’s conduct. At least in the former situation, the Policy was changed and applied proactively. 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.”

While accurate, this passage ignores reality and defies common sense. The entire Personal Conduct Policy apparatus is about managing, and ideally avoiding, public outcries. The league polices the private lives of players because the public expects the league to do it (and the union has agreed to allow it). And the league prefers to have flexibility to deal with unique situations that may arise.

Yes, the NFL tends to be far more reactive than proactive. But it’s one thing to fail to implement a proper procedure for ensuring that officials won’t fail to miss pass interference in a key moment of a playoff game (which is entirely foreseeable) and it’s quite another to not have a rule on the books for imposing proper discipline on a player who used his status as a pretext for setting up private massage that he actively tried to engineer into sexual encounters against the wishes of those providing the massages. As the league said in the hearing before Judge Robinson, the requested punishment is unprecedented because the conduct is unprecedented.

Judge Robinson, a lawyer and a former judge, treated this case too much like a lawyer. She accepted the effective and persuasive arguments of NFLPA counsel Jeffrey Kessler without taking a step back and applying common sense.

Again, she concluded that Watson was guilty. But she allowed herself to get bogged down by the fact that the league hadn’t, in her view, fairly warned Watson that his habit/fetish of hiring massage therapists and making unwelcome sexual advances toward them could get him suspended for a full year.

“The NFL argues that consistency is not possible, because there are no similarly-situated players,” Judge Robinson writes at page 13 of her decision. And the NFL is right. He’s the first person to have done this. What could or should the league have done differently in the crafting and application of its policies to provide fair notice to Watson that he could be suspended for a full season if he did that which Judge Robinsons concluded he had done?

As Chris Simms pointed out on PFT Live, the average player would assume that doing the things Watson did would get them suspended for a year, if not kicked out of the game for good. This issue of whether policies and precedent technically puts players on notice of the potential punishment for such misconduct assumes that they’re not oblivious to these niceties and technicalities. Most employees of any business are.

But employees have common sense. Watson not only committed the acts (as Judge Robinson concluded) but he also lied about doing so via his categorical denial of misconduct -- and his broad and not credible claim that he never had an erection during a massage, even though some of the women who vouched for him admitted to NFL investigators that he did. What should someone who engages in that kind of behavior fairly expect by way of punishment?

It’s not clear from the ruling how or why Judge Robinson decided on a six-game suspension for Watson. She points out that the most commonly-imposed discipline for “violence and sexual acts” is six games, and that the most severe punishment for “non-violent sexual assault” was three games. Watson’s suspension was based on four victims. Was he suspended 1.5 games per accuser? And how does Jameis Winston (the player who was suspended three games for “non-violent sexual assault,” we’re told) engaging in one incident of spontaneous “non-violent sexual assault” with an Uber driver relate to Watson’s deliberate and extensive habit of using his name and his fame to arrange private massages that he tried to make into sexual encounters, even if the massage therapists weren’t interested in that?

There’s another problem with Judge Robinson’s decision, as it relates to her assessment of aggravating and mitigating factors. Although the league chose to present evidence of only four accusers, the fact that Watson was sued by 24 people should have at least been relevant when deciding whether to increase or decrease the punishment.

“With respect to what the appropriate discipline should be, I note that there are aggravating factors applicable to Mr. Watson, that is, his lack of expressed remorse and his tardy notice to the NFL of the first-filed lawsuit,” Judge Robinson wrote at page 14. “As to mitigating factors, he is a first-offender and had an excellent reputation in his community prior to these events. He cooperated in the investigation and has paid restitution.”

How is he a “first-offender” when there are 24 alleged offenses? How is he a “first-offender” when the New York Times has reported that he hired at least 66 women for private massages in a 17-month period? And how doe his “excellent reputation” prior to the four accusations that became the focal point of the hearing mesh with the existence of 24 lawsuits -- or with the fact that he had managed to engage in this habit/fetish in secret for months if not years? While that evidence may not have been relevant to the question of whether he violated the policy, that evidence should have been considered as to the issue of aggravation and/or mitigation.

Before getting access to Judge Robinson’s ruling, I said that there was no way to know how she arrived at six games without reviewing the decision in full detail. Now that I have, I still don’t know how she arrived at six games. She doesn’t adequately explain it. And her effort to do so is woefully incomplete.

It’s almost as if she knows that the NFL will exercise its prerogative to appeal her decision to the Commissioner, and that he’ll ultimately pick whichever number he wants, and that she therefore decided not to bother with applying the elbow grease necessary to make her reasoning in the selection of six games as clear as it needs to be. Her reasoning doesn’t matter.

Once she found that, factually, he did it, she may as well have pulled the number of games out of a hat. Ultimately, Goodell will do whatever he wants to do. And based on the findings made by Judge Robinson, why wouldn’t Goodell still want the full-season suspension that he instructed his employees to request from Judge Robinson?