Sooner or later, and probably sooner, Judge Sue L. Robinson will issue a decision regarding the discipline, if any, to be imposed on Browns quarterback Deshaun Watson. And if/when any discipline is imposed, either Watson or the league can file an appeal.
So let’s take a look at what would happen if there’s an appeal.
Here’s the relevant language from the Personal Conduct Policy as to the appeal process: “Following communication of the disciplinary decision, either the league (through the Management Council) or player (through the NFL Players Association) may appeal the decision to the Commissioner or his designee. Such appeals will be: (i) processed on an expedited basis; (ii) limited to consideration of the terms of discipline imposed; and (iii) based upon a review of the existing record without reference to evidence or testimony not previously considered. No additional evidence or testimony shall be presented to or accepted by the Commissioner or his designee. Any factual findings and evidentiary determinations of the Disciplinary Officer will be binding to the parties on appeal, and the decision of the Commissioner or his designee, which may overturn, reduce, modify or increase the discipline previously issued, will be final and binding on all parties.”
Here’s what it means. The NFL, despite the changes to the process made in 2020, still has final say over the discipline. The Commissioner or his designee (who wouldn’t be his designee if he wasn’t prepared to do what the Commissioner wants) will make a “final and binding” decision.
It must happen quickly, by rule. It cannot entail any new evidence, by rule. It must be based on the facts as Judge Robinson determines them to be, which makes her findings of fact a critical aspect of her decision.
But the Commissioner can do whatever he wants, especially since the policy contains no standard of review or other restrictions on his ability to throw out Judge Robinson’s conclusion and replace it with something else.
Would it be awkward to say to Judge Robinson, “Sorry, we think it should be 17 games, not four”? Yes. But not nearly as awkward as the public reaction to the perception that the league was too lenient with Watson. That’s the overriding problem for the league. Eight years ago, the mishandling of Ray Rice nearly brought the whole house down. The league can’t afford to have the same thing happen here.
That’s why it will be critical for the league to properly gauge public reaction to Judge Robinson’s ruling, and then to decide first whether to appeal it at all (there was a report several weeks back that, if Judge Robinson issues a 6-8 game suspension, maybe there won’t be) and second what to do with the appeal. Yes, public reaction matters. The entire process is a P.R. tool, aimed at giving the league a way to investigate and punish players who get in trouble when not at work. The union has agreed to it. Players are never fully off duty; the Shield never sleeps.
And so, since the league has created the Personal Conduct Policy as a vehicle for meeting public expectations, the league needs to consider those expectations when reaching a decision on Watson.
Unless Judge Robinson issues no discipline at all. That’s the only way to keep Goodell or his designee from designating her decision as insufficient, and to replace it with something that the league believes will better mesh with what the fans and media expect the final decision to be.