The NFL filed an appeal Wednesday of the six-game suspension that a disciplinary officer imposed on Cleveland Browns quarterback Deshaun Watson for violating the personal conduct policy based on allegations of sexual misconduct.
The league argued to Sue L. Robinson, the disciplinary officer appointed by the NFL and the NFL Players Association, for a similar indefinite suspension requiring Watson to apply for reinstatement after the 2022 season. Robinson, a former U.S. district judge, issued her ruling Monday under the disciplinary system established in the 2020 collective bargaining agreement. Either side had the right to appeal the ruling.
The NFL said through a spokesman that it notified the NFLPA of its intent to appeal and filed its brief Wednesday afternoon. The league did not specify whether Goodell will resolve the appeal personally, saying in a statement by the spokesman that Goodell “will determine who will hear the appeal.” The appeal is set to be processed on an expedited basis, under the terms of the personal conduct policy, without the introduction of evidence or testimony beyond what was presented to Robinson.
The NFLPA did not immediately respond to a request for comment. The union has until Friday to file a written response to the appeal. If Goodell or his designee increases the suspension, the union and Watson could file a lawsuit that would renew courtroom sparring between the league and NFLPA over player discipline.
The CBA says an appeal “shall be limited to arguments why, based on the evidentiary record … the amount of discipline, if any, should be modified.”
In that way, Robinson may have provided the league with a factual basis to argue the suspension should be increased. She ruled the NFL proved its case that Watson violated the personal conduct policy by committing sexual assault (defined by the league as unwanted sexual contact with another person), by posing a danger to the safety and well-being of another person and by undermining or putting at risk the integrity of the NFL.
Robinson called Watson’s behavior “predatory” and “egregious.” But she also wrote that Watson committed “non-violent sexual assault” and said she was bound by the precedent of previous punishment the league imposed.
“The commissioner or his designee does not have the authority under the CBA to re-litigate the facts or to question the factual determinations,” Gabriel Feldman, the director of the sports law program at Tulane University, said in a phone interview Tuesday. “The only question is whether the punishment is appropriate, given the facts. And I think the opportunity is certainly there for the commissioner to question whether the punishment was sufficient given the severity of the conduct that was alleged and also proven. I think there is a clear path for the commissioner, as articulated in the CBA, to increase the suspension.”
The NFLPA and Watson issued a joint statement Sunday night, ahead of the initial ruling, saying they would abide by Robinson’s decision. They urged the league to do the same.
“The NFL can very easily point to the collective bargaining agreement and say this was always intended to be an intermediate step and that both parties have a very fair right to appeal,” Feldman said. “So it’s not so much that the NFL would be calling into question the credibility of the arbitrator. … Instead, I think the greater risk is in dragging this case out even longer and then potentially ending up back in court, trying to explain why the decision of a hearing officer was insufficient.”
Some had wondered whether the NFL would be reluctant to appeal because such a move might be viewed as a repudiation of Robinson.
“There is a benefit to finality and in not dragging this on, not only through an appeal potentially with the commissioner but then we know that the prospect of a lawsuit by the NFLPA is significant,” Feldman said before the league’s announcement of the appeal. “Based on precedent, we have certainly seen the NFLPA be aggressively willing to challenge commissioner discipline decisions in court. And so the NFL has to balance their desire to strictly enforce the conduct policy with their desire to be deferential to a new neutral arbitrator … and finality.”
The National Organization for Women called Watson’s six-game suspension “unacceptable, insulting, and dangerous.”
The organization added in a statement earlier this week: “Deshaun Watson must not be allowed to profit from his horrific behavior, and the NFL must change its business model that allows, enables, and hides sexual misconduct into one that respects women and holds abusers accountable. Shame on the Cleveland Browns for rewarding Deshaun Watson and shame on the NFL for perpetuating a system where money talks, and women aren’t heard.”
Watson has denied the allegations made in 25 civil lawsuits filed by women. He has agreed to settlements in 23 of those cases, according to the attorney for the women. One lawsuit was withdrawn, and one remains pending. Watson has not been charged with a crime. The NFL’s personal conduct policy allows for discipline to be imposed without criminal charges.
The NFLPA has had mixed success challenging the NFL in court over player discipline. In cases involving quarterback Tom Brady, then with the New England Patriots, under integrity-of-the-game rules and Dallas Cowboys running back Ezekiel Elliott under the personal conduct policy, the NFLPA scored initial wins that postponed the onset of each player’s suspension. But the NFL ultimately prevailed and forced Brady and Elliott to serve their full suspensions, reinforcing Goodell’s authority in player discipline.
Before the 2020 CBA, Goodell was empowered to make initial disciplinary rulings and resolve any appeals under the personal conduct policy. The NFLPA sought to change that arrangement and ideally would prefer a system in which the commissioner makes the initial ruling, then an independent arbitrator resolves any appeal. But Goodell was not willing to surrender the final say in the disciplinary process, and the current system was a compromise struck as part of the give-and-take of collective bargaining. It is being put to a test in a polarizing, high-profile first case.