As the NFL’s appeal, to the NFL, for the six-game suspension imposed on Browns quarterback Deshaun Watson heads toward an “urgent” decision (according to the rule), the NFL Players Association appears to be trying to create whatever leverage it can to achieve colony. This effort includes floating the idea to some in the media that Watson could actually play in the first week against the Panthers, if/when a federal lawsuit is filed—and if/when a federal judge finds that Watson should be allowed to play during the litigation proceeds.
It is a weak and flimsy argument, and most likely will not prevail in court. It also wouldn’t do much to convince the NFL that it should strike a deal with the association now, because the NFL certainly understands the flaws in that approach.
The basic argument seems to go like this – because the NFL has appealed Judge Sue L. Robinson’s six-game ban for Watson, and that penalty disappears. And it will be replaced (as the argument goes on) with what Peter Harvey, appointed by the commissioner, decides to impose. Thus, when the time comes to bring the NFL to court (and thus attempt to delay the start of the suspension), a preliminary injunction entered by the court will begin as of week one, not week seven.
There are many serious problems in this dispute. First, the NFL did not challenge the six-game suspension. The NFL just argued that six games isn’t enough. The NFL’s appeal focuses on whether the suspension should extend beyond the first six weeks.
Second, the NFLPA did not appeal the decision. This would have been the best and safest way to play from week one through week six of a court order allowing Watson to play. The union appears to have balanced PR concerns (announcing Sunday night that it will not appeal Judge Robinson’s ruling) and legal strategies in deciding not to put the first six weeks into the case by filing its own appeal. And so the federation would instead make the argument (however weak) that the appeal by the league serves as a clearing of the storied in relation to the six-week ban without objection.
Third, there is nothing in the Personal Conduct Policy to indicate that an appeal automatically clears prior sanction from the books. In fact, the policy expressly states that the appeal “may rescind, reduce, modify or increase the discipline previously issued.” This means that the former penalty escapes the mechanical act of appealing the decision, and the question in this specific case is only whether the penalty will be “increased” beyond six games.
The argument that prior discipline disappears on appeal can lead to very strange results. Suppose the union has resumed and the league has not. Does anyone think, on appeal, that the final verdict could have increased the penalty beyond six matches? In this case, does anyone think that the allure of the NFL could lead to fewer than six games – especially when the NFL specifically called for an increase?
Fourth, Judge Robinson’s factual findings are binding on the appeals process. It found that Watson did what he was accused of doing, and that he committed “non-violent sexual assault” on four massage therapists, resulting in three different violations of the personal behavior policy. In previous cases involving the suspension of work delayed by the president of the court pending the outcome of the litigation (for example, Tom Brady, Ezekiel Elliott), the NFLPA challenged the finding that the player made no mistake. Here, the CBA renders Judge Robinson’s findings of fact fully binding on the appeals process. The union at this point cannot deny that Watson has violated the policy. The only question is whether the penalty will stay in six matches or become more than six matches.
The NFLPA appears to believe that general circumstances have changed, and now that the process has involved an independent disciplinary officer holding the hearing, making factual decisions, and issuing punishment. But the union agreed to allow the commissioner or his representative to continue to control the appeal. Previous fights took place in court before the union agreed to a procedure stating that the decision of the commissioner or his designee “will be final and binding on all parties”. Union negotiators agreed to this language, and rank and file voted to accept a new business deal that included it. It will be much more difficult to challenge all the results of this process in court, and move forward.
This leads to the fifth point. The initial protective order, which (for example) prevents the NFL from implementing the suspension until the lawsuit is resolved, is an unusual remedy. It’s a high bar. The analysis takes into account multiple factors, including the probability of success based on the facts of the case. The new CBA makes it unlikely that the NFLPA will prevail on Watson’s behalf.
Another factor to consider when issuing an initial injunction is whether the damage done to the player is “irreparable”. With Watson’s six-game suspension for granted, he does no harm by not playing in the first six games of the season.
Finally, it is important to remember that the league was able (via the Tom Brady case) to secure a very favorable legal precedent in the US Court of Appeals for the Second Circuit, which includes the federal courts in New York. The university, well aware that litigation was coming, should be prepared to file a declaratory judgment suit in federal court in New York, to obtain assurance that the handling of the internal procedure was appropriate. In what could be a potential race to court, the NFL will know when to file its case, because the NFL will know when Peter Harvey makes its verdict. All the league needs to do is text anyone willing to make the case, and then it’s over.
Will the NFLPA pull out any and all stations to fight the league? If/when Watson receives a much longer comment? The fact that the association is putting forward the idea that Watson could play in the first week suggests that there will be many more aggressive efforts being undertaken. However, being aggressive and being successful are two completely different things. In the Brady and Elliott cases, the NFLPA ultimately didn’t work out. CBA 2020 makes Deshaun Watson’s fight more difficult, not easier, for the Federation and the player.