Judge Robinson’s dig at the NFL is accurate, but in the Deshaun Watson case it was unavoidable

USA TODAY Sports

The 16-page decision from Judge Sue L. Robinson gives the NFL the factual findings necessary to impose, through the appeal process, a much longer suspension on Browns quarterback Deshaun Watson. But the written ruling does not leave the NFL unscathed.

Judge Robinson determined that Watson did what he’s accused of doing, and that he basically lied when he denied it. But she also declined to suspend Watson for a full year, because she concluded that the league’s policy and precedents did not justify something so stringent for a “non-violent sexual assault.”

In the first paragraph of the conclusion to her ruling, Judge Robinson chides the NFL for trying to do something that anyone who pays attention to the league knows that it does — make the rules up as it goes.

“The NFL may be a ‘forward-facing’ organization, but it is not necessarily a forward-looking one,” Judge Robinson wrote. “Just as the NFL responded to violent conduct [committed by former Ravens running back Ray Rice] after a public outcry, so it seems the NFL is responding to yet another public outcry about Mr. Watson’s conduct. At least in the former situation, the Policy was changed and applied proactively. Here, the NFL is attempting to impose a more dramatic shift in its culture without the benefit of fair notice to — and consistency of consequence for — those in the NFL subject to the Policy.”

While accurate, this passage ignores reality and defies common sense. The entire Personal Conduct Policy apparatus is about managing, and ideally avoiding, public outcries. The league polices the private lives of players because the public expects the league to do it (and the union has agreed to allow it). And the league prefers to have flexibility to deal with unique situations that may arise.

Yes, the NFL tends to be far more reactive than proactive. But it’s one thing to fail to implement a proper procedure for ensuring that officials won’t fail to miss pass interference in a key moment of a playoff game (which is entirely foreseeable) and it’s quite another to not have a rule on the books for imposing proper discipline on a player who used his status as a pretext for setting up private massage that he actively tried to engineer into sexual encounters against the wishes of those providing the massages. As the league said in the hearing before Judge Robinson, the requested punishment is unprecedented because the conduct is unprecedented.

Judge Robinson, a lawyer and a former judge, treated this case too much like a lawyer. She accepted the effective and persuasive arguments of NFLPA counsel Jeffrey Kessler without taking a step back and applying common sense.

Again, she concluded that Watson was guilty. But she allowed herself to get bogged down by the fact that the league hadn’t, in her view, fairly warned Watson that his habit/fetish of hiring massage therapists and making unwelcome sexual advances toward them could get him suspended for a full year.

“The NFL argues that consistency is not possible, because there are no similarly-situated players,” Judge Robinson writes at page 13 of her decision. And the NFL is right. He’s the first person to have done this. What could or should the league have done differently in the crafting and application of its policies to provide fair notice to Watson that he could be suspended for a full season if he did that which Judge Robinsons concluded he had done?

As Chris Simms pointed out on PFT Live, the average player would assume that doing the things Watson did would get them suspended for a year, if not kicked out of the game for good. This issue of whether policies and precedent technically puts players on notice of the potential punishment for such misconduct assumes that they’re not oblivious to these niceties and technicalities. Most employees of any business are.

But employees have common sense. Watson not only committed the acts (as Judge Robinson concluded) but he also lied about doing so via his categorical denial of misconduct — and his broad and not credible claim that he never had an erection during a massage, even though some of the women who vouched for him admitted to NFL investigators that he did. What should someone who engages in that kind of behavior fairly expect by way of punishment?

It’s not clear from the ruling how or why Judge Robinson decided on a six-game suspension for Watson. She points out that the most commonly-imposed discipline for “violence and sexual acts” is six games, and that the most severe punishment for “non-violent sexual assault” was three games. Watson’s suspension was based on four victims. Was he suspended 1.5 games per accuser? And how does Jameis Winston (the player who was suspended three games for “non-violent sexual assault,” we’re told) engaging in one incident of spontaneous “non-violent sexual assault” with an Uber driver relate to Watson’s deliberate and extensive habit of using his name and his fame to arrange private massages that he tried to make into sexual encounters, even if the massage therapists weren’t interested in that?

There’s another problem with Judge Robinson’s decision, as it relates to her assessment of aggravating and mitigating factors. Although the league chose to present evidence of only four accusers, the fact that Watson was sued by 24 people should have at least been relevant when deciding whether to increase or decrease the punishment.

“With respect to what the appropriate discipline should be, I note that there are aggravating factors applicable to Mr. Watson, that is, his lack of expressed remorse and his tardy notice to the NFL of the first-filed lawsuit,” Judge Robinson wrote at page 14. “As to mitigating factors, he is a first-offender and had an excellent reputation in his community prior to these events. He cooperated in the investigation and has paid restitution.”

How is he a “first-offender” when there are 24 alleged offenses? How is he a “first-offender” when the New York Times has reported that he hired at least 66 women for private massages in a 17-month period? And how doe his “excellent reputation” prior to the four accusations that became the focal point of the hearing mesh with the existence of 24 lawsuits — or with the fact that he had managed to engage in this habit/fetish in secret for months if not years? While that evidence may not have been relevant to the question of whether he violated the policy, that evidence should have been considered as to the issue of aggravation and/or mitigation.

Before getting access to Judge Robinson’s ruling, I said that there was no way to know how she arrived at six games without reviewing the decision in full detail. Now that I have, I still don’t know how she arrived at six games. She doesn’t adequately explain it. And her effort to do so is woefully incomplete.

It’s almost as if she knows that the NFL will exercise its prerogative to appeal her decision to the Commissioner, and that he’ll ultimately pick whichever number he wants, and that she therefore decided not to bother with applying the elbow grease necessary to make her reasoning in the selection of six games as clear as it needs to be. Her reasoning doesn’t matter.

Once she found that, factually, he did it, she may as well have pulled the number of games out of a hat. Ultimately, Goodell will do whatever he wants to do. And based on the findings made by Judge Robinson, why wouldn’t Goodell still want the full-season suspension that he instructed his employees to request from Judge Robinson?

43 responses to “Judge Robinson’s dig at the NFL is accurate, but in the Deshaun Watson case it was unavoidable

  1. This works out for everyone involved. The judge did her job. The lawyers got paid. Roger gets to pump his chest and say that to the best of their abilities, they had an independent arbitrator review their by-laws and come to a decisions. The NFLPA counts this as a win because they defended Watson, the owners are happy that there wasn’t too much sniffing around their behavior, and Watson pretty much skates with the equivalent of a slap on the wrist. Sure, there may be some pushback from the sponsors and the special interest groups, but that’s what they pay the commish 50 million bucks a year for. Time to wade in the mud for a while and on to football. $$$$ is king.

  2. So she was supposed to take into account media hearsay is what you’re saying, lol. Oh boy. They presented five out of the 24 because they knew the others didn’t help their case, and even one of those got thrown out too.

  3. This can be parsed all sorts of ways, and Florio did a good job of it here, but we all know that ultimately the ultimate judgment, to be made by Judge Dredd (Goodell) will not be based on logic, due process, fairness, or any other reasonable norm. I’m not advocating a longer or shorter suspension for Watson, just making the point that, while Judge Robinson did a reasonable job and applied a reasonable standard, there are many standards that can be applied, and ultimately Goodell will apply the punishment he (and league counsel Jeff Pash) thinks the owners and the league can survive regarding public backlash.

  4. she concluded that the league’s policy and precedents did not justify something so stringent for a “non-violent sexual assault.”……………………………………..
    This is such BS. Goodell hired her to wipe his hands of this and all she did was blame the NFL for her decision. If she wanted a year she could of got it. This smells on so many levels,

  5. Wow, just WOW!! He’s guilty, she confirms it …. NFL (Goodell), now it’s time to step up and suspend him for at least a year. Your own non-biased judge says he did it, now make him pay. Honestly, I don’t think it’ll happen though, sigh.

  6. I agree that it would have been especially helpful had she stated how she got to the number of games. When I read the opinion, it seemed like she was lumping all is conduct together as one incident for which he was being punished at 6 games (plus the extra condition of using team therapists only).

    I think it left the door open for the NFL if it wants to, to say they are treating it as four separate events and giving him punishment of X for each event. Maybe that number will be 2 or 3 per event, but I would fully expect an NFL appeal here.

  7. This is not about justice and 100% about PR for the NFL, and in order to make this “go away” as quickly as possible, the NFL should merely wash its hands of this and say they abided by the independent arbitrator’s decision, which they agreed to do in the latest CBA. Nothing good (PR-wise) comes of Goodell wading in here and suspending Watson for eight games or a year or more. If the NFL appeals they’re violating spirit of the CBA and risk being sued by the NFLPA (ie this story stays in the public sphere longer).

  8. An assault is a physical attack, thus a non-violent sexual assault makes no sense.

  9. How is he a “first-offender” when there are 24 alleged offenses?

    ===============

    Because we learned that at least one of the women filed a lawsuit based on media reporting. How many others were there? One? 10? 33?

    And of the 24, the NFL only focused on four after their interviews with eight other women did not prove their case.

    So out of 66 known instances, there were only four that they could apply their “definition of sexual assault” since their policy didn’t have a definition before this case. And they only focused on these four because they didn’t allow him to book another session. The other ones allowed a subsequent booking.

    Did you know based on the NFL’s definition of sexual assault, if a man were to make pelvic contact with a woman on a crowded subway or elevator, they would meet the criteria? Or if you brushed up against a woman’s chest while in close proximity then you meet the definition as well?

    “As noted above, the conduct of “sexual assault” is not defined in the CBA, the Policy, or
    the Report. On behalf of the NFL, one of its investigators defined the term at the evidentiary
    hearing as the “unwanted sexual contact with another person.”

  10. It gets tiring when NFL people (including owners, coaches and players) do awful things, get a slap on the wrist then go forward with the apology tour and wait for the bad PR to clear before proceeding in their normal routines which in the NFL is making millions and billions.

    It’s ugly. It’s sickening. It’s America

  11. This is quite unfair to Judge Robinson. What standard was she supposed to apply to calculate a suspension? The CBA does not set forth any standard.

    The only logical method Judge Robinson had was to look to past suspensions handed down by the league. It was either that or create a standard out of whole cloth.

  12. wallcrasher3 says:
    August 2, 2022 at 11:11 am
    An assault is a physical attack, thus a non-violent sexual assault makes no sense.
    _________

    Incorrect. An assault does not require a physical touching. A battery is an attack that requires a physical touching.

  13. So many issues: (1) the NFL should have tried to bring in evidence on the other claims (however Watson paid them off in advance for their confidentiality); (2) An impartial third party found Watson to be both responsible for the claimed acts and a liar — so much for those arguing no factual finding of guilt; (3) the NFL’s lack of uniformity in imposing discipline has come back to haunt; and (4) despite inconsistent discipline and a past history of lower game suspensions, this is a judge that should be very knowledgeable about the standard of departing from traditional discipline guidelines due to aggravating circumstances and behavior, and it is doubtful the NFL will ever see more aggravating “non-violent” sexual deviancy than Watsons.

  14. 243 pages for Deflategate. 16 pages for multiple instances of sexual assault.

    Stay classy, NFL!

  15. realfootballfan says:
    August 2, 2022 at 10:54 am
    So she was supposed to take into account media hearsay is what you’re saying, lol. Oh boy. They presented five out of the 24 because they knew the others didn’t help their case, and even one of those got thrown out too.
    ______________

    You have no way of knowing why the league presented only five of the cases. Perhaps the league did not want to extend the hearing with duplicative evidence.

    There is no “media hearsay” with respect to the number of cases against Watson. The 24 cases are a matter of public record.

  16. It seems as if her decision was written with purpose. To purposely challenge the NFL to appeal and enhance, and to urge the NFLPA to sue the NFL. It’s clear she believes the entire NFL policy to be a sham.

  17. Great piece on Robinson’s decision. The league is now between a rock and a hard place because six games is way too little, but it also looks bad in the court of public opinion to basically say “nice try, but not so fast” to the new disciplinary process–which is especially unfortunate because Robinson’s decision is such poor work product. Everyone agreed before yesterday that the NFL owes Robinson some deference in her first ruling, but she failed to uphold her end of that bargain. Frankly, I don’t understand why it took her a month to issue this ruling, which reads like it was thrown together in a few hours. The reasoning is sloppy and cursory, and the judge’s discomfort with ad hoc industrial discipline rather than federal law is all too clear. Makes you wonder what she expected when she took the job?

  18. The whole decision is a joke. The NFL has to add more games! Even if they say 12 (3 games for the 4 proven violations) but hopefully they say a full year. The NFLPA can threaten to take it to court if they want and talk about how Watson could play week 1 while it`s tied up in court but Watson won`t do that because of the way they did his contract. If he plays this season and then he makes another million in salary but when the NFL wins in court and they always do because the CBA was collectively bargained he would be suspended next season and lose 46 million in salary so he will cave because it`s all about the money or he wouldn`t have changed his mind and signed with Cleveland in the first place.

  19. I’m actually surprised she didn’t call out the fact that the punishment Watson got was more than any owner that has gotten in trouble for similar things. If she wanted to really get a dig in at the NFL she could have noted that even though owners are held to a “higher standard” owners like Kraft, Snyder, Jones, etc have never been punished to the extent that Watson has.

    Does it make 6 games right? NO, but it does point out the fact that owners do not get punished the same as players.

  20. Florio – I’m generally not a fan of it, but please, beat this dead horse relentlessly.

  21. Most or you forget he served 1 year already but don’t worry he will do it again. Unless he gets help mentally it’s going to happen again!

  22. The NFL is now sleeping in the bed they made, not only in terms of how they have (and have not) disciplined previous transgressors, but also in turning over the process to an outside arbitrator.

    That is the circumstance Judge Robinson was operating from. Clearly, Watson was not punished for all he was accused of, but rather (and rightfully so), for what could be factually determined he actually did.

    The accusers have all been compensated for an amount they agreed to settle for.

    Looking at it objectively, before it got to Judge Robinson, the allegations had been investigated not only by the league, but also law enforcement and prosecutors in Texas.

  23. Is it more probable than not that Watson was generally aware that forced touching and sexual assault of massage therapists wasnt acceptable?

  24. patsman12 says:
    August 2, 2022 at 12:16 pm

    Most or you forget he served 1 year already but don’t worry he will do it again. Unless he gets help mentally it’s going to happen again!
    —————————————————————————————————-Wrong! He did not serve a suspension last season. He refused to play! Big difference!

  25. kathmandu says:
    August 2, 2022 at 11:41 am
    Great piece on Robinson’s decision. The league is now between a rock and a hard place
    ==================================================================
    I disagree. After the Ray Rice fiasco, this is exactly what the NFL wanted. That was the whole point. Now they have cover. If Goodell goes beyond the punishment he gets to take a victory lap as being the enforcer again. If he decides to stick with the punishment he can point back to the punishment that the Judge dished out and he avoids criticism for his kangaroo court.

  26. Her scorn for league management shines through brightly in various places and is wholly justified. Goodell crowned himself judge jury and executioner, yet has all the foresight and leadership skills of an amoeba. So instead he just spins his Thunderdome wheel of arbitrary punishments and rational people — like her and us — are left looking for patterns in a process that is intentionally patternless. The Personal Conduct Policy itself is an exercise in marketing and brand managment. Neither football nor justice have anything to do with it, by design.

  27. jacktatumroamingthemiddle says:
    August 2, 2022 at 12:10 pm

    I’m actually surprised she didn’t call out the fact that the punishment Watson got was more than any owner that has gotten in trouble for similar things. If she wanted to really get a dig in at the NFL she could have noted that even though owners are held to a “higher standard” owners like Kraft, Snyder, Jones, etc have never been punished to the extent that Watson has.

    Does it make 6 games right? NO, but it does point out the fact that owners do not get punished the same as players.
    ———————————————————————————————
    What owner or other player had 24 civil cases against them? There is no precedent here because nobody in NFL history has had this happen before. The people that don`t understand the difference between what Watson did and Kraft did can`t be helped.

  28. “This issue of whether policies and precedent technically puts players on notice of the potential punishment for such misconduct assumes that they’re not oblivious to these niceties and technicalities…”

    It’s a reach to assume they are not oblivious…sure, there’s the vast majority of the population that knows, somehow, deep down that these activities are wrong and add in the basic emotions of shame and guilt (which we all feel at times to some degree) and yes, you could say normal people generally know these things are immoral.

    But we’re talking about coddled, entitled self-centered I’ve-gotten-whatever-I-wanted-since-I-was-8 years old, NFL players and now it’s a horse of a different color.
    These guys don’t live in the same universe as normal people, so no, they won’t be hip to “niceties and technicalities”. And we can only blame fan-boys, wall-St, politicians, corp-america and the media for our creations, Yes…OUR creations

  29. 1000% disagree with Mike on this. As long as the NFL insists on being reactive there is absolutely a need to provide notice. Fans have seen this time and time again with the NFL moving the goal posts when it comes to player discipline. There is absolutely no consistency. While I can appreciate the notion that facts and circumstances play an important role in each situation there needs to be a foundational baseline to draw from.

    IMO, the assessment from Judge Robinson re: the NFL is absolutely spot on. The severity of the Watson (or lack thereof) punishment lays at the feet of the NFL for not being proactive enough to define the punishment before hand. Meting out punishment using the finger in the wind approach is not the right long term decision and any fan who has been watching the NFL since Goodell took over should realize that is true.

  30. gibson45 says:
    August 2, 2022 at 11:20 am
    This is quite unfair to Judge Robinson. What standard was she supposed to apply to calculate a suspension? The CBA does not set forth any standard.

    The only logical method Judge Robinson had was to look to past suspensions handed down by the league. It was either that or create a standard out of whole cloth.
    ==============
    Exactly. And when Goodell overrules her decision the NFL will be returning to that. First it will wipe out any attempt to establishing a standard (that the NFL directly refuses to define themselves) and than it will undermine the credibility of the arbitrator. Proving yet again that player discipline in the NFL is a total and utter abomination.

  31. She criticizes the NFL for making it up as they go, but that’s what she did. It’s like Watson benefited from having all the cases at once. If she did only look at 4 cases, and determined he was guilty, and she said the comp is 3 games, shouldn’t 12 games be the starting point?

  32. So we assume the league will appeal by August 4 and Roger Goodell will increase the suspension (after sitting on it for 2 more days). Per the relevant language in the current CBA, “The Commissioner or his designee will issue a written decision that will constitute full, final and complete disposition of the dispute and will be binding upon the player(s), Club(s) and the parties to this Agreement.” Will Watson’s legal camp try to sue the league after the final decision? That seems to be a losing argument (unless the league engaged in any process not outlined in the CBA).

  33. patsman12 says:
    August 2, 2022 at 12:16 pm
    Most or you forget he served 1 year already but don’t worry he will do it again. Unless he gets help mentally it’s going to happen again!
    ______________________________________________________________________________________________
    No, Pat, he did not serve a year. He refused to play for Houston, and they were dumb enough to pay him rather than suspend him. They could have forced his hand and told him to play, but if he got hurt, they’d still be on the hook for his salary. They had hopes of trading him, but he wouldn’t settle his lawsuits, so nobody would take him.

  34. If she used past punishments for sexual offenses, she would have looked at Big Ben’s and Ezekial Elliott’s 6 games suspension for one complaint, and done the same for Watson. Based on the 4 counts the NFL presented, 4×6=24 games. Sounds good to me!

  35. “I still don’t know how she arrived at six games.” That’s a bizarre statement. She quite thoroughly explains it: “Looking at the record when compared to the relevant precedent, and looking forward to how this disciplinary determination might be used in the future, I find the most appropriate landing place to be…”

    You actually have to deny what someone has very clearly stated in order to “don’t know.”

    Precedent is everything. It’s how modern societies determine the conduct of their citizens. In this case, everyone is interested in the precedent. So, what preceded it? Several instances of men behaving in a way that women find sexually intimidating, apparently. That’s nothing new. Throughout the extent of our species’ history, men have behaved in sexually intimidating ways towards women. It’s hardwired. Watch the Discorvery channel.

    I think the real problem here is that some guy had some fantasies and some women didn’t know how to respond. Can’t really blame them for it. He’s a star football player and they aren’t. It would have been difficult to turn down prodiving him services. It’s unfortunate they didn’t. Imagine the ones who had no issues with it, which, in a way, proves that some folks just react differently in different situations. There’s probably plenty that had no issue with it.. maybe even enjoyed it. Everyone has their take on life.

    6 games was the prcedent. It remains to be until the NFL decides to make a new one.

    Popcorn ready.

  36. Notice how from the league office it is all about Miami today pushing Watson under the rug.

  37. lajitastx13 says:
    August 2, 2022 at 1:22 pm
    No, Pat, he did not serve a year. He refused to play for Houston, and they were dumb enough to pay him rather than suspend him. They could have forced his hand and told him to play, but if he got hurt, they’d still be on the hook for his salary. They had hopes of trading him, but he wouldn’t settle his lawsuits, so nobody would take him.
    ______________________________________________________________________________________________

    Wrong. Watson was a healthy scratch all of 2021 and it was dictated by the team not Watson himself. He was eligible to play all of 2021 the Texans opted not to start him due to the allegations. Watson tried to force a trade prior to the allegations coming out. But there was never any indication at all that Watson wasn’t willing to play. That’s just pure fiction to suggest otherwise.

  38. lajitastx13 says:
    August 2, 2022 at 1:27 pm
    If she used past punishments for sexual offenses, she would have looked at Big Ben’s and Ezekial Elliott’s 6 games suspension for one complaint, and done the same for Watson. Based on the 4 counts the NFL presented, 4×6=24 games. Sounds good to me!
    ______________________________________________________________________________________________
    Elliot was domestic violence and seems more appropriate to compare to Peterson\Rice than Watson\Roethlisberger.

    Roethlisberger seems like the most appropriate comparison and exactly where Robinson landed.

  39. Judge Sue Robinson comes from the Justice system where she followed statutes and rules for sentencing or in this case punishment (suspension). Detrimental to the personal conduct policy is vague and without punishment guidelines. Therefore Judge Robinson did a great job in a very unfair process governed by the NFL owners and their ring master Roger Goodell.

  40. No one states the most obvious thing. Judge Robinson’s self interest. She gives Goodell all the reason to increase the suspension if he wants, while not giving the NFLPA a reason to exercise their right to dismiss her.

  41. In an article written on 8/1 here, there’s text that states the NFL have 3 days from her findings to appeal. So, we should by some time Thursday what NFL plans to do, correct?

  42. It is 4 days for the league or Watson camp to appeal. Watson’s side has said they won’t appeal the 6 game suspension. So it’s up to the league. Once an appeal is made, there’s two days to decide. Final ruling will probably land next week.

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