NFLPA floats notion of Deshaun Watson playing Week One, but it remains highly unlikely

USA TODAY Sports

As the NFL’s appeal, to the NFL, of the six-game suspension imposed on Browns quarterback Deshaun Watson heads toward an “expedited” (by rule) resolution, the NFL Players Association seems to be trying to create any leverage that it can for a settlement. This effort includes floating the notion to some in the media that Watson could actually play in Week One against the Panthers, if/when a federal lawsuit is filed — and if/when a federal judge finds that Watson should be permitted to play while the litigation proceeds.

It’s a weak and flimsy argument, and it most likely will not prevail in court. It also won’t do much if anything to persuade the NFL that it should cut a deal with the union now, because the NFL surely realizes the flaws in this approach.

The basic argument seems to go like this — because the NFL appealed Judge Sue L. Robinson’s six-game suspension of Watson, that punishment disappears. It will be replaced (as the argument continues) by whatever Peter Harvey, the Commissioner’s designee, decides to impose. Thus, when the time comes to take the NFL to court (and in turn to try to delay the commencement of the suspension), a preliminary injunction entered by the court would commence as of Week One, not Week Seven.

There are several serious problems with this contention. First, the NFL did not challenge the six-game suspension. The NFL argued only that six games aren’t enough. The NFL’s appeal focuses on whether the suspension should extend beyond the first six weeks.

Second, the NFLPA didn’t appeal the decision. That would have been the best and safest way to put Week One through Week Six in play for a court order that would allow Watson to play. The union apparently balanced P.R. concerns (it declared on Sunday night that it wouldn’t challenge Judge Robinson’s ruling) and legal strategies in deciding not to place the first six weeks in issue by filing its own appeal. And so the union will instead make the argument (weak as it may be) that an appeal by the league operates as a clearing of the decks regarding the unchallenged six-week ban.

Third, nothing in the Personal Conduct Policy indicates that an appeal automatically wipes the prior punishment from the books. Indeed, the policy expressly states that the appeal “may overturn, reduce, modify or increase the discipline previously issued.” This means that the prior punishment survives the mechanical act of appealing the decision, with the question in this specific case being only whether the punishment will “increase” beyond six games.

The argument that the prior discipline disappears on appeal could lead to very strange results. Let’s say the union had appealed and the league hadn’t. Does anyone think that, on appeal, the final ruling could have been an increase in the punishment beyond six games? In this case, does anyone think that the NFL’s appeal could result in something less than six games — especially when the NFL specifically appealed for an increase?

Fourth, Judge Robinson’s factual findings are binding on the appeal process. She found that Watson did what he was accused of doing, that he committed “non-violent sexual assault” as to four massage therapists, resulting in three different violations of the Personal Conduct Policy. In past cases involving a suspension that was delayed by the presiding judge pending the outcome of litigation (e.g., Tom Brady, Ezekiel Elliott), the NFLPA challenged the conclusion that the player had done anything wrong. Here, the CBA makes the findings of fact from Judge Robinson fully binding on the appeal process. The union at this point can’t deny that Watson violated the policy. The only question is whether the punishment will remain at six games or become more than six games.

The NFLPA seems to believe the overall circumstances have changed, now that the process includes an independent disciplinary officer who holds the hearing, makes factual determinations, and issues punishment. But the union agreed to allow the Commissioner or his designee to continue to control the appeal. The past fights had played out in court before the union agreed to a procedure that says the decision of the Commissioner or his designee “will be final and binding on all parties.” The union’s negotiators agreed to this language, and the rank and file voted to accept a new labor deal that included it. It will be much harder to challenge all outcomes of this process in court, moving forward.

That leads to the fifth point. A preliminary injunction, which keeps (for example) the NFL from implementing a suspension until the lawsuit has been resolved, is an extraordinary remedy. It’s a high bar. The analysis considers multiple factors, including the likelihood of success on the merits of the case. The new CBA makes it far less likely that the NFLPA will prevail on Watson’s behalf.

Another factor to consider in issuing a preliminary injunction is whether the harm suffered by the player is “irreparable.” With Watson’s six-game suspension a foregone conclusion, he suffers no harm by not playing in the first six games of the season.

Finally, it’s important to remember that the league has managed to secure (via the Tom Brady case) very favorable legal precedent in the U.S. Court of Appeals for the Second Circuit, which encompasses the federal courts in New York. The league, knowing full well that litigation is coming, needs to be ready to file a declaratory judgment action in a New York federal court, seeking confirmation that the handling of the internal procedure was proper. In what would be a potential race to the courthouse, the NFL will know when to file its case, because the NFL will know when Peter Harvey issues his ruling. All the league needs to do is send the text to whoever is ready to file the case, and off it goes.

Will the NFLPA pull out any and all stops to fight the league. if/when Watson receives a much longer suspension? The fact that the union is floating the idea that Watson could play in Week One suggests that there will be multiple aggressive efforts undertaken. However, aggressive and successful are two very different things. In the Brady and Elliott cases, the NFLPA ultimately was not successful. The 2020 CBA makes the Deshaun Watson fight harder, not easier, for the union and the player.

29 responses to “NFLPA floats notion of Deshaun Watson playing Week One, but it remains highly unlikely

  1. Even the NFLPA isn’t dumb enough to get Watson on the field week 1. The Browns need to tread lightly here because the first time that man steps on the field, whenever that may be; it’s going to be a circus.

  2. It gets tiresome watching the nonstop effort to somehow influence what the NFL does on this site and every other pontificating media outlet. Browns fans want Watson to play and pay a fine. Fans of their rivals won’t be satisfied with any outcome that allows Watson to play enough to help the Browns beat their teams or make the playoffs. Spare us the moralizing. Everyone chimes in according to their rooting interests, just as you noted in a previous article. We all want to see Watson make better choices. Browns fans shouldn’t be punished by a season long suspension after watching Big Ben get four games for something much more serious. Hit Watson in the wallet in a big way and make a statement that resounds louder than losing a million dollars and still making that huge contract.

  3. When the Browns eventually do put him on the field in an NFL game I truly hope he is a spectacular failure. He and the Browns organization deserve nothing but the worst possible outcome.

  4. I wonder if Kevin Stefanski would leave his wife alone with Watson for a couple of hours.

  5. The truth of the matter is that through his own actions, Watson should loose the privilege to make millions and play in the NFL. At the very least until he admits, takes ownership of and accountability for his actions, seeks help and tries to make amends in any way he can for his actions. Of course this is the moral thing to do, and despite highly financed marketing, there is nothing moral about the NFL.

  6. Perhaps it’s time the players look into finding new leadership for the NFLPA. The current leadership is taking the NFLPA down a PR dead end.

  7. Sheesh…The NFL has aggressively courted the female fanbase lately.

    But with these revelations, the NFLPA appears to be okay with an *even more* aggressive approach to women like the one Watson has taken.

  8. I don’t think it is the worst argument that has been made in this debacle. NFLPA and Watson are interested in getting him on the field in 2022 so it makes sense to try.

    I am surprised that the NFLPA didn’t appeal at least the condition that Robinson put on the ruling of him having to go to certain therapists. She also used the word “reinstatement” which I thought wasn’t applicable to a defined suspension. I understand that word mattering with an indefinite suspension in which he has to apply for reinstatement, but not to a defined period.

    I would have expected the NFLPA to appeal that saying it wasn’t an appropriate condition for discipline. Imagine what conditions could be assessed in the future.

    Bottom line folks, don’t take a position (like – we aren’t going to appeal) before seeing what you might be fighting about.

  9. Personally I would love for Watson to play as many games as possible this season before receiving a long suspension. The way they structured his contract to pay out peanuts in the 1st season was a farce.

  10. One year suspension at minimum and a substantial financial fine needs to happen, no matter how that contract was structured in order to protect Watson’s money during the first year. Absolutely ludicrous that this is still ongoing.

  11. If I was a reporter I would ask someone with the Browns if they think Watson deserves to play this year based on the facts the judge found in her ruling? I would like to see the Browns step in and give him their own suspension and only see the NFL step in if they view it too light. The Browns are acting like a bunch of cowards hiding behind the NFLPA hoping they could get him on the field for game 1 if possible.

  12. Why would Watson (and the Browns) even want to play, unless the strategy is to try annulling the discipline altogether (which isn’t happening)? He loses literally nothing except a few bucks per game he is held out this season, and missed games would be more disruptive coming after playing for a few weeks (and even more disruptive if an injunction lets him play to start the season before a season-long ban is reinstated–and impacts 2023 instead of resulting just in a lost 2022). In other words, yet more dumb tough talk from the NFLPA.

  13. Typical union ploy. He they will file suit and take it to the Minneapolic court that is very union friendly and yes that judge will let him play while his case is waiting to be heard like in march or April.
    I just see no way the Union can stop what the NFL is doing as to discipline. Its like you cannot discipline someone who wasnt caught committing a crimal act, not a civil act.

  14. marketgarden says:
    August 6, 2022 at 12:27 pm
    It gets tiresome watching the nonstop effort to somehow influence what the NFL does on this site and every other pontificating media outlet. Browns fans want Watson to play and pay a fine. Fans of their rivals won’t be satisfied with any outcome that allows Watson to play enough to help the Browns beat their teams or make the playoffs. Spare us the moralizing. Everyone chimes in according to their rooting interests, just as you noted in a previous article. We all want to see Watson make better choices. Browns fans shouldn’t be punished by a season long suspension after watching Big Ben get four games for something much more serious. Hit Watson in the wallet in a big way and make a statement that resounds louder than losing a million dollars and still making that huge contract.

    Back in biblical days, I sense many of the anti Watson people would be throwing the first stone. And how is it these same fans aren’t angry at the Houston Texans organization? They facilitated Watson’s behavior and subsequently paid off the women involved. Where is the anger at the NFL for NOT investigating the Texans? If the Texans facilitated, they should face punishment as well… like stripping them of draft picks

  15. The NFLPA is bluffing and the NFL knows it. If he plays this year under an injunction he makes $1 million. The NFL will win in court, and If he is suspended next season he loses $40+ million. Surely the NFLPA isn’t that stupid.

  16. Union is forever tainted. They shoulda told him he’s on his own, they don’t represent perverts

  17. NFLPA will fight tooth and nail for deshaun because of his contract and what it represents for future players. Just as the owners hate it and have exercised the right to punish him and the browns for it.

  18. And anyone thinking the browns won’t restructure with watson around what they deem as an unjust suspension that goes into next year isn’t paying attention.

  19. This is a lot of haranguing for a guy with a worse win percentage that Mitchell Trubisky… and Watson had one of the best WR in the league during that time while Trubisky had … who???

  20. How is De Smith still in charge of the Players’ Union?? They moan and groan over policies THEY agreed to….case after case over many years now. Yet this dude somehow skates. Also, who is the highest ranking female member of Union leadership, and how does she feel about this look??? (steadfast defense of DW and ultimately seemingly inevitable legal challenge after NFL extends the punishment).

  21. Meanwhile Bills, chargers, KC and bengals fans are much happier with their qbs….

    What will the NFLPa say when Watson does this again. Sexual predators generally don’t ever change

  22. Yet Robert Kraft received 0 game suspension for doing the exact same thing. And save your lame he only did it 1x nonsense. If you seriously believe that, you must believe in the Tooth Fairy and Santa Claus too. But But But, according to the NFL the owners will be held to a higher standard. Thats where Kessler will nail the NFL to the wall in Court

  23. Smart move, play this year at 58k a game and push the suspension into next year at 3+ million a game.

  24. Sounds awesome. Next the NFLPA will announce they’re getting Britney Griner released and that they’ve settle things with China and Taiwan.

  25. The only thing saving the NFLPA here is that most of the public isnt paying attention to their shenanigans because its August.

  26. Whatever you may think of Watson’s specific case, everyone equating soliciting a prostitute with sexual assault needs to take a long, hard look at their ethical compass.

  27. While it IS their job to get the best deal for the player, the NFLPA better be careful. The public outcry after the announcement of 6 games is proof that the fans of the NFL and the general public at large didn’t think it was enough and using the ongoing bad PR and threatening to increase said PR as a negotiating tactic is going to backfire if they don’t watch it. Imo this is already a really bad look for the NFLPA. Watson and his camp have made the wrong decision at every critical junctunture and now the NFLPA has jumped in to assist.

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