Will the NFL place Deshaun Watson on paid leave?
Many league insiders and observers have assumed that, given the sheer volume of civil cases pending against Texans quarterback Deshaun Watson, the NFL eventually will place him on paid leave pending the resolution of 22 lawsuits.
Given that the litigation schedule ensures that Watson won’t be questioned under oath until after the next Super Bowl, Watson and his legal team have kept the door open on Watson playing this season, even if the cases aren’t settled.
Although Commissioner Roger Goodell has broad discretion in matters of this nature (a tactful way of saying that the league can do whatever it wants in any given case), the language of the Paid Leave section of the Personal Conduct Policy becomes relevant. Here it is:
“A player may be placed on paid administrative leave pursuant to the Commissioner Exempt List under either of the following circumstances: First, when a player is formally charged with: (1) a felony offense; or (2) a crime of violence, meaning
that he is accused of having used physical force or a weapon to injure or threaten a person or animal, of having engaged in a sexual assault by force or against a person who was incapable of giving consent, or having engaged in other conduct that poses a genuine danger to the safety or well-being of another person. The formal charges may be in the form of an indictment by a grand jury, the filing of charges by a prosecutor, or an arraignment in a criminal court.
“Second, when an investigation leads the Commissioner to believe that a player may have violated this Policy by committing any of the conduct identified above, he may act where the circumstances and evidence warrant doing so. This decision will not reflect a finding of guilt or innocence and will not be guided by the same legal standards and considerations that would apply in a criminal trial.
“Third, in cases in which a violation relating to a crime of violence is alleged but further investigation is required, the Commissioner may place a player on the Commissioner Exempt List on a limited and temporary basis to permit the league to conduct a preliminary investigation. Based on the results of this investigation, the player may be returned to duty, be placed on the Commissioner Exempt List for a longer period or be subject to discipline.”
The first paragraph won’t become relevant unless and until criminal charges are filed against Watson. A criminal investigation has been launched, but no decision has been made. If he isn’t charged or indicted before the regular season starts, Goodell will need another basis for placing Watson on paid leave.
The third paragraph applies where accusations arise at a time when there’s no realistic opportunity to investigate the situation before the player once again takes the field. In this case, the league will have had months for conducting a “preliminary investigation” aimed at deciding whether Watson should be allowed to play or placed on paid leave.
For Watson, the second paragraph becomes the most important. It allows placement on paid leave if “an investigation” causes Goodell “to believe” that Watson “may have violated” the Personal Conduct Policy by engaging in a “felony offense,” a “crime of violence,” or a “sexual assault by force.”
“May have violated” is broad, malleable, expansive. The allegations alone would justify a conclusion that Watson “may have” committed the things he’s accused of doing. Even with only two of the 22 lawsuits accusing Watson of sexual misconduct by force, if Goodell concludes that Watson “may have” engaged in that behavior, that’s enough to put him on paid leave.
So, yes, the policy gives Goodell broad discretion. A tactful way of saying the league can do whatever it wants.
What it ultimately decides to do inevitably will be influenced by P.R. considerations. The entire Personal Conduct Policy flows from P.R. considerations. The NFL remains one of the only employers in the nation that would take any type of action against employees accused of misconduct that has not yet been proven.
Innocent until proven guilty. It applies in a court of law. It doesn’t apply in the Court of the Commissioner, in part because the NFL continues to insist that paid leave doesn’t constitute punishment.
Of course it does. Football players want to play football. Even if they get their game checks, preventing them from playing punishes them.
Unless Watson settles the 22 cases and the criminal investigation closes with no charges being filed, the possibility of non-punishment punishment in the form of paid leave continues to hover over Watson. Ultimately, Goodell’s broad discretion will be applied to these facts.
In other words, at some point before the regular season begins, the league will do whatever it wants. And one of the biggest factors will be the league’s assessment of how fans, media, and Twitter will react to whatever the NFL does or doesn’t do.
So here’s how it likely will go. Barring a dramatic change in the pending civil cases or criminal investigation, Watson won’t be traded. He’ll show up for training camp with the Texans. Then, the league either will -- or won’t -- direct him to go home at full pay until further notice, and possibly until each of the 22 lawsuits are resolved.