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Sunday, August 14, 2022

Judge Robinson could impose not much punishment, if any, on Deshaun Watson

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On one hand, Browns quarterback Deshaun Watson has had 24 different women accuse him in civil court of sexual misconduct during massage therapy sessions. On the other hand, Watson was never charged with a crime.

In the middle resides the NFL. Because the Watson case has become the first one to be processed under the league’s new procedure for determining Personal Conduct Policy violations, no one knows what will happen.

The league wants a minimum suspension of one year. (The ongoing dearth of news regarding the proceedings actually has resulted in reporting that the NFL still wants a minimum suspension of one year, the legal equivalent of Chevy Chase’s periodic updates regarding the health of Generalissimo Francisco Franco.) Watson wants no punishment at all.

Retired federal judge Sue L. Robinson has presided over three days of hearings. She’ll make the decision based on the facts, as sufficient proven (or not) by the league.

What are the facts? It’s known that the NFL focused on five claims against Watson. It’s known that no one is claiming that he committed violence or used physical force, against anyone. It’s believed by some that he had a habit/fetish of seeking massages and hoping they would turn sexual.

Given that the Personal Conduct Policy prohibits “assault and/or battery, including sexual assault or other sex offenses” and creates a six-game baseline suspension for “sexual assault involving physical force or committed against someone incapable of giving consent,” where is the basis for punishing Watson for sexual assault, or any kind? Surely, the NFL Players Association has been making that point, all week.

That said, the policy has two important catch-all provisions: (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 by the league would (or could) be that Watson’s apparent habit/fetish falls under both broad categories. Any maybe it does.

But here’s the problem: Patriots owner Robert Kraft received no punishment at all for a massage that allegedly became something more than a massage. Even though the two cases entail VERY different facts, there’s a common thread of massage-that-became-more. If that behavior wasn’t something that triggered punishment for Kraft, how can it trigger punishment for Watson — especially since the Personal Conduct Policy expressly provides that owners are held to a higher standard?

No one knows how this is going to play out. However, it makes sense to be thinking about the possibility that Judge Robinson will apply the policy as written, that she will apply it strictly, that she will expect the NFL to have credible evidence of one or more violations, and that she won’t be inclined to punish Watson simply for having a habit/fetish of hoping private massages turn sexual when an owner had no league scrutiny after a massage allegedly turned sexual. Put simply, there’s a chance Judge Robinson will impose not much punishment, if any, on Watson.

Of course, if Judge  Robinson imposes any punishment at all on Watson, the league can then appeal the decision to the Commissioner, who can increase the punishment. Judge Robinson’s factual findings, which are binding on the appeal process, could paint the Commissioner into a corner.

In other words, if she imposes little or no punishment, the decision likely will come with specific written findings that will make it very difficult to justify increasing the punishment.

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