NFL, NFLPA get homework as Deshaun Watson’s arbitrator sets the tone

When retired federal judge Sue Robinson held the disciplinary hearing for Cleveland Browns QB Deshaun Watson last Tuesday, many expected her to announce a decision shortly after, and for Watson the NFL or both to appeal to the NFL commissioner Roger Goodell

Instead, she ordered the parties back for a second day. Then she brought them back for a third day. She then told them to submit a post-hearing letter the week of July 11.

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It’s as if the judge didn’t get the script and instead treated the hearing as something few thought it would be: a legal proceeding. There is a focus on detail, a willingness to ask lots of questions and follow-up questions, and an ambition to build a comprehensive and conclusive report that will support the legal underpinning of her final decision.

Here are four key takeaways:

1. After the hearings, both sides make one last attempt to convince Robinson.

Post-hearing briefings allow attorneys to address specific points of contention raised during the hearing.

For example, Robinson could question the merits of the NFL’s pursuit of an indefinite suspension, which arguably equates to a ban, as the duration would be until the league. Prohibition of personal misconduct is usually for a certain number of games; six have been issued in recent years for domestic violence related cases.

For Watson and the NFLPA, Robinson could seek clarifying answers to charges against Watson and how she should construct a sentence. The NFL is reportedly in custody of damning lyrics and other material that could portray Watson as a serial abuser of women, even though a grand jury declined to indict him and he settled most of the lawsuits.

If Robinson finds that Watson has repeatedly violated the Conduct Policy, she may be able to punish him multiple times. If each penalty warrants a six-game suspension, would Robinson carry out those suspensions simultaneously or sequentially? The answer would have a dramatic effect on how long Watson is sidelined.

2. Robinson is focused on identifying the right conclusion, not rushing to meet football timelines.

The Browns are opening training camp on July 27, and they’re eager to find out if Watson will be their quarterback when the season starts. The longer Robinson takes, the less certainty the Browns will have about Watson’s availability. If either side appeals Robinson’s decision, that would mark the beginning of a new timeline with Goodell appealing. Watson could then challenge Goodell’s decision in federal court.

While sports fans, gamblers and of course Watson and the Browns worry about that timeline, Robison doesn’t worry about it. She is focused on determining whether Watson has engaged in conduct harmful to the NFL and, if so, how he can punish him. If the NFL or NFLPA wanted a disciplinary officer to act with more haste, they probably shouldn’t have hired a judge.

The Watson timeline is already behind the Deflategate timeline; Goodell heard Tom Brady’s appeal on June 23, 2015, and upheld Brady’s four-game suspension on July 28, 2015. Brady — whose attorney, Jeffery Kessler, now represents Watson — and the NFL subsequently challenged the suspension in federal court. Judge Richard Berman lifted Brady’s suspension on September 3, 2015, a week before that season began, allowing Brady to play the entire 2015 season. The NFL later defeated Brady on the U.S. Court of Appeals for the Second Circuit, and the QB sat out the first four games of the 2016 season.

If Watson challenges an eventual suspension, he may still be in court by the time the Browns play their first regular season game on September 11.

3. Goodell might feel limited in dominating Robinson.

Goodell, or someone he designates, would consider an appeal, so if the NFL wants Watson to be banned for one season plus an indefinite period afterward, Goodell can impose that.

If that sounds too simplistic, it is. That approach could risk discrediting the spirit, if not the letter, of the trial and obviating Robinson’s role as neutral arbitrator.

Should Watson later sue the NFL, his lawyers would insist that Goodell (or his agent) did not follow the CBA, promising an important role for the disciplinary officer (i.e., Robinson). Failure to follow the CBA would be a strong legal argument in a case involving the application of the CBA. If Goodell ignores Robinson, he must provide a compelling explanation and a set of compelling reasons why Robinson was wrong.

This is why Robinson’s apparent thoroughness matters. She builds an extensive file that may be difficult for Goodell — who is not a lawyer, let alone a retired judge — to change dramatically.

4. Both sides still have incentives to make a deal.

A settlement means Watson agrees to a suspension and waives any right to appeal or litigate. Since neither side has any control over Robinson, both parties may want to play it safe and compromise before making a decision. But at the time of writing, there is no indication that Watson and the NFL will settle their dispute.

A settlement is technically possible at any time as long as the NFLPA and NFL agree. However, once Robinson makes a decision, it may be too late. At that point, the process is likely to become more contentious. If either party appealed to Goodell, his decision would become the basis of a lawsuit by Watson.

To the extent that Watson and the NFL are concerned that the hearing material, including any transcripts, will become public, a settlement would be a critical step. In 2015, a lawsuit over Brady’s suspension led to the release of a hearing. In this case, the material produced during Robinson’s hearing (and any appeal hearing) may include details of allegations against Watson – the plaintiffs’ attorney Tony Buzbee is seeking NFL material – and details of allegations against owners Goodell refused to punish for alleged personal misconduct. If the parties settle, they can agree on confidentiality and make it very difficult for others to learn about what has been discussed.

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