It remains to be seen whether Texans quarterback Deshaun Watson fights all of the pending sexual assault lawsuits against him or resolves them. Even if all of the claims are settled today, there’s already enough evidence to support a suspension under the Personal Conduct Policy, if the league chooses to take action.
It’s important to remember that the league has significant discretion when it comes to activating and applying the policy that regulates employee conduct away from work. The vast majority of American employers do not discipline employees for things they do when not working; as long as they are able to continue to show up, they continue to be employed.
But the NFL and the NFL Players Association agreed years ago to allow for discipline to be imposed for off-duty misconduct, primarily as a tool for enhancing the overall image of the league and its players. Over time, the Personal Conduct Policy has become broader — and the league has acquired the ability to essentially decide on a case-by-case basis whether and to what extent action will be taken against any player.
The P.R. concerns that created the policy necessarily drive its application. If Watson were to reach a settlement now of all pending and threatened claims, the P.R. costs and benefits of taking action against Watson would be weighed by the league office, as they always are. The league would have to decide whether disciplining Watson would make things better in the eyes of the public, or make things worse.
Regardless of whether precedent matters (sometimes it does, sometimes it doesn’t), the league would be able to suspend Watson based simply on the volume of claims and the admission in his lawyer’s recent statement that one of the paid massage sessions became a sexual encounter. Even without receiving any specific information from the 16 plaintiffs and potentially eight more (a settlement would possibly prevent them from cooperating with the investigation), the league office could find that Watson’s behavior requires intervention and corrective action.
That’s exactly what Commissioner Roger Goodell did in 2010, four years before beefing up the Personal Conduct Policy in the aftermath of the Ray Rice debacle. Steelers quarterback Ben Roethlisberger received a six-game suspension (reduced to four) after being civilly sued for rape in 2009 and then accused of misconduct in early 2010. The second incident, which happened in Milledgeville, Georgia, resulted in no arrest or civil lawsuit. (The circumstances suggested that a confidential settlement was reached between Roethlisberger and the alleged victim.) The NFL nevertheless took significant action.
“I recognize that the allegations in Georgia were disputed and that they did not result in criminal charges being filed against you,” Goodell said in his letter to Roethlisberger. “My decision today is not based on a finding that you violated Georgia law, or on a conclusion that differs from that of the local prosecutor. That said, you are held to a higher standard as an NFL player, and there is nothing about your conduct in Milledgeville that can remotely be described as admirable, responsible, or consistent with either the values of the league or the expectations of our fans. . . . Your conduct raises sufficient concerns that I believe effective intervention now is the best step for your personal and professional welfare.”
Goodell also pointed out at the time “that I may impose discipline ‘even where the conduct does not result in conviction of a crime’ as, for example, where the conduct ‘imposes inherent danger to the safety and well being of another person.'” In Roethlisberger’s case, the Commissioner cited “irresponsible consumption of alcohol” along with purchasing alcoholic beverages for underage college students.
“The personal conduct policy also states that discipline is appropriate for conduct that ‘undermines or puts at risk the integrity and reputation of the NFL, NFL clubs, or NFL players,'” Goodell wrote. “By any measure, your conduct satisfies that standard.”
As to Watson, his apparently extensive pattern of hiring massage therapists through social media with the possibility of sexual activity somewhere on the radar screen (given attorney Rustin Hardin’s rebuttal based on blackmail allegations arising from consensual sex) would be enough to justify the Commissioner taking action. While the specific facts are different from Roethlisberger’s case, the decision to impose discipline in order to rectify irresponsible behavior that reflects poorly on Watson and in turn his team and the league would likely justify a suspension, based on the currently-available information.
Again, whether the league takes action is largely up to the league. Watson would have appeal rights, but those appeal rights continue to fall within the exclusive purview of the Commissioner. Even though the new CBA uses a hearing officer to conduct determine the first level of discipline, either the player or the league can appeal to the Commissioner for less or more, respectively. In other words, if the league wants something more than what the hearing officer has done, the league can ask the Commissioner via the appeal process to increase the penalties.
Thus, at the end of the day, the Commissioner will decide how to handle Watson’s situation. Given the way Roethlisberger’s situation was handled, there’s already enough to give the Commissioner the power to conclude that Watson needs some sort of discipline and assistance in order to avoid a recurrence of the behaviors that resulted in so many claims of wrongdoing made against him.