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Taking a closer look at the NFL’s case against Deshaun Watson

The NFL and the NFL Players Association spent three days last week submitting evidence and argument regarding the question of whether Browns quarterback Deshaun Watson should be suspended to start the 2022 season and, if so, the number of games he’ll miss. Judge Sue L. Robinson eventually will issue a decision, subject to an appeal by either party (unless she finds that no discipline should be imposed at all).

So what was the NFL’s actual case against Watson? It’s one thing to repeatedly insist on a suspension of at least one year. It’s another to have the evidence that, when combined with the Personal Conduct Policy, will justify that kind of a punishment.

When considering the sheer number of accusations against Watson, it’s hard not to think something happened that would justify a suspension. With 24 lawsuits filed (20 have been settled) and, per the New York Times, at least 66 different women hired via social media for private massages -- and given the admission that Watson had sexual encounters with at least three of the women who sued him -- it seems reasonable to conclude that Watson had a habit of arranging private massages with strangers and trying to steer the massages toward consensual sexual encounters.

But that apparently wasn’t the evidence the league presented. After interviewing only 12 of the women who have made allegations against Watson, the league presented evidence as to five persons who provided massages to Watson. The 24 lawsuits, the 66 or more strangers who were retained for private massages, and the allegation made in at least one of the lawsuits that the actual number exceeds 100 apparently weren’t part of the case against him.

The NFL’s case focused on five people. And, as PFT reported last week, that evidence included no proof of violence or threats or any type of physical conduct that would constitute actual assault.

The Personal Conduct Policy expressly prohibits “assault and/or battery, including sexual assault or other sex offenses.” If there’s no sexual assault, that specific provision of the policy hasn’t been violated.

And that’s the provision that creates a baseline suspension of six games per offense. Here’s the key language of the policy: “With regard to violations of the Policy that involve: (i) criminal assault or battery (felony); (ii) domestic violence, dating violence, child abuse and other forms of family violence; or (iii) sexual assault involving physical force or committed against someone incapable of giving consent, a first violation will subject the violator to a baseline suspension without pay of six games, with possible upward or downward adjustments based on any aggravating or mitigating factors.”

Without proof of “sexual assault involving physical force or committed against someone incapable of giving consent,” there’s no violation of that specific provision. (It’s possible that the league will try to argue that the circumstances suggest that the persons were not capable of giving consent, but that typically refers to someone who is underage or incapacitated in some way, for example, someone who is unconscious due to alcohol or drug consumption.)

Absent evidence of an actual sexual assault, the league’s case rests on two catch-all provisions at the bottom of a list of bullet points in the policy: (1) “conduct that poses a genuine danger to the safety and well-being of another person"; and (2) “conduct that undermines or puts at risk the integrity of the NFL, NFL clubs, or NFL personnel.” The argument would be that Watson’s habit of trying to steer massages toward sexual encounters falls within either or both of these prohibitions.

But that’s where the lack of discipline for Patriots owner Robert Kraft complicates the league’s case. If no action was taken against Kraft for having a massage that allegedly became a sexual encounter, how can the league discipline Watson for the same thing?

The difference, of course, is that the evidence against Watson ultimately centers on the fact that he allegedly tried, repeatedly, to make massages into sexual encounters. Kraft was never accused of doing that, by anyone.

For the NFL, that may be the best, strongest argument to present to Judge Robinson in the written briefs due next week. Watson, they’ll argue, posed a genuine danger to the safety and well-being of another and/or undermined or put at risk the integrity of the NFL, NFL clubs, or NFL personnel by repeatedly arranging private massages and trying to make them into sexual encounters.

It’s unclear whether this practice was firmly established in the evidence submitted at last week’s hearing. Although the NFL focused on five women, Watson could have been questioned at length on the full extent of his habit. Did he admit that he tried to make massages into sexual encounters? If he denied it, was his testimony credible?

Then there’s the question of whether the NFL may have deliberately scaled back the effort to create the impression that Watson’s behavior extended so broadly in light of the lawsuit filed Monday (the timing may have been not coincidental) against the Texans for allegedly knowing about Watson’s alleged habit and taking no steps to protect the women who eventually found out during the massages that he would try to make it something else.

While it’s impossible to know the specific extent of the league’s argument based on an alleged habit of making massages into something other than massages without seeing the full transcript of the hearing, that could be the key to determining whether Judge Robinson would have a way to distinguish Watson’s behavior from Kraft’s and to impose discipline based not on any actual assault but on the alleged practice of trying to make massages into sexual encounters.

The answers will appear in Judge Robinson’s written decision. She’ll need to craft a ruling that clearly explains her factual findings and that outlines in basic terms the way the Personal Conduct Policy applies to those facts to result in discipline. Absent proof of sexual assaults and given that the Kraft precedent makes it very difficult to punish Watson for engaging in massages that became consensual sexual encounters, Judge Robinson likely will be able to discipline Watson only if she finds that he was engaged in a habit of trying to make massages into sexual encounters, and if she believes that this behavior runs afoul of either or both of the two catch-all prohibitions of the Personal Conduct Policy.

That’s why the NFL’s effort to discipline Watson is so different from the criminal process (which resulted in no indictments) and the civil lawsuits that are still pending. For the league, the controlling principles appear in the Personal Conduct Policy. The facts will be determined by Judge Robinson, based on the evidence that was presented to her.

She’ll make the decision. If she chooses to impose any discipline at all, the league will have to decide whether to appeal to the Commissioner for a greater punishment. But the factual findings made by Judge Robinson are, by rule, binding on the Commissioner.

Whatever the final outcome, it will need to be explained in a way that that will be understandable and satisfactory to those who may have a hard time reconciling the 24 lawsuits and the evidence suggesting that Watson had a habit of arranging manages and trying to make them into sexual encounters with something less than a one-year suspension.