The NFL Players Association has publicly vowed to accept the decision of former federal judge Sue Robinson in the Deshaun Watson case for three reasons, in my opinion.
One, the NFLPA has real confidence that Judge Robinson will be issuing a decision that falls well short of the league’s preferred indefinite banishment of one year, at a minimum. Two, the NFLPA realizes that, generally speaking, Judge Robinson will be more likely to not give the NFL what it wants in most cases, because she’s hired by both the league and the union. Three, the process to which the NFLPA agreed gives the NFL, through the man who runs the NFL or his hand-picked “designee,” final say via the appeal process.
Under the old Personal Conduct Policy, Commissioner Roger Goodell served as judge, jury, executioner, and appeals court. Under the policy as revised in 2020, the NFL operates as the prosecutor, the jointly-hired disciplinary officer (for now, Judge Robinson) acts as judge and jury, and Goodell plays the role of the appeals court. Although Goodell is bound by the facts as developed and determined by Judge Robinson, he can disagree with her assessment as to the discipline imposed (as long as she imposes any discipline at all) and then impose more.
The policy, as written, contains no standard of review; there’s no requirement that he defer to her decision unless he finds it was arbitrary and capricious, for example. There’s nothing about “abuse of discretion,” another way for lower courts to have deference baked into their rulings. Here, the league has the absolute right to appeal the decision (unless no discipline is imposed) and Goodell has the ability (as the policy is written) to say, basically, “Four games? Sorry, Judge Robinson. I think it should be 17.”
And so the NFLPA has made a case to the court of public opinion, in the hopes of getting the NFL to accept Judge Robinson’s final number. Indirectly, the union may be trying to curry one last little bit of favor with her, in the event she slept one more night on whether to impose, say, six games or eight. Also, the union may be trying to get the league to think that, if Goodell overturns her decision, she’ll angrily resign her post.
That’s unlikely. Judges have their decisions overturned all the time. It’s one of the only risks of the job. You make a decision, and someone higher in the pecking order may disagree with it. When she took the position, she surely realized that.
For the NFL, nothing the union says will matter. The key will be whether and to what extent media and fans react negatively to Judge Robinson’s ruling. For months, stories have been written about the 24 civil lawsuits pending against Watson. Most people don’t realize that, in the end, only four cases were presented to Judge Robinson. And no one outside the process knows (at least not for now) the evidence that was presented to her, the arguments that were made (for example, comparing Watson’s alleged misconduct to owners and to other players), or her reasons for making the coming decision. Even if, as we hope, the full written ruling is made available for scrutiny and interpretation, many will refuse to do anything more than absorb the bottom line and react to it.
If the reaction is overwhelmingly negative, as it was when the league gave former Ravens running back Ray Rice a two-game suspension in 2014, an appeal becomes far more likely. And if there’s an appeal by the league to the league, well, it doesn’t take a lot of guesses to figure out what happens next.
So that’s really the key. How will people react to her ruling? Because even though the league now can say “don’t blame us” if Judge Robinson’s decision is perceived to be too lenient, that nuance will be lost on most observers. Besides, the truth is that, as the process has been crafted, the NFL can still be blamed — because it still has the power to rig the game in its favor by activating Goodell’s prerogative to disagree with Judge Robinson’s assessment, and to increase the punishment to a suspension that he believes is more appropriate.
And remember this. It was the league as run by Goodell that wanted an indefinite suspension of at least one year. Unless that was just a ruse aimed at getting Judge Robinson’s decision into a more acceptable range (and it possibly was), Goodell has the ability to give the league that which the league as run by Goodell wants.