Commissioner Roger Goodell has decided not to personally handle the appeal of the Deshaun Watson suspension, even though the Commissioner had the power to do so under the Personal Conduct Policy. He has instead delegated the matter to former New Jersey Attorney General Peter Harvey.
There’s no specific deadline for Harvey to issue a ruling, but the policy requires that it be “expedited.” There’s also no requirement in the policy or the Collective Bargaining Agreement for a hearing on appeal. It’s possible, however, that the NFL Players Association has asked for one.
Whenever Harvey makes his decision, the question is whether it will be anything other than the punishment the NFL has requested. Frankly, there’s no reason to believe he’ll deviate from what the league has requested, unless the plan consists of asking for a full season and as a way to make, say, a 12-game suspension seem less harsh.
Whatever Harvey does, it’s fair to think it will be exactly what Goodell would have done on his own. Although Harvey isn’t a league employee, he has close ties to the NFL. He helped develop the current version of the Personal Conduct Policy, adopted in the aftermath of the Ray Rice debacle. Harvey also advised the Commissioner in connection with the Ezekiel Elliott case.
In that case, Harvey said he believed Elliott’s accuser because of the presence of contemporaneous activities corroborating her claims (i.e., photos taken on the days that injuries were sustained and sent to third parties). Here, the league ultimately settled on four Watson accusers because of contemporaneous evidence corroborating the claims (e.g., text messages sent after the interaction with Watson).
The NFL told PFT that Harvey has had no prior involvement in the Watson case. It’s a claim that can’t be readily debunked, absent full access to the relevant communications between and among everyone who chimed in, directly or indirectly, regarding the question of whether Watson did what he’s accused of doing, and how to go about proving it.
Why wouldn’t someone connected to the league’s handling of the Watson case have asked Harvey, who helped develop the current policy, for his opinion on how best to properly assess Watson’s behavior? Judge Sue L. Robinson’s analysis of the policy focused on the distinction between violent and non-violent sexual assault. The league may believe that there’s no distinction under the policy. Harvey, who helped develop the policy, may believe it.
Basically, having Harvey handle the Watson appeal is no different having a Senator who helped draft a bill that became a law serve as the judge in a later case deciding how to interpret and apply the resulting statute. And that’s separate and apart from the fact that Harvey will be inclined to do whatever he thinks Goodell wants him to do.
A decade ago, Goodell designated former Commissioner Paul Tagliabue to handle the appeals of suspensions imposed on players connected to the Saints bounty scandal. Tagliabue scrapped the punishments and politely dressed down his successor for opting to change a broader culture by making an example out of one team. This time around, Goodell’s designation entails far less risk. He has appointed someone who has a valuable relationship with the league and who surely wants to maintain it.
Indeed, Peter Harvey’s connection to the NFL appears near the top of his online bio. It’s a selling point to be involved with pro football. An imprimatur that helps him land more clients. That’s not even a cynical viewpoint; it’s obvious. For the same reason medical practices clamor to be associated with the NFL and its teams, lawyers whose business interests rely on having high-dollar legal work to perform love to market themselves as being tied to The Shield.
Harvey won’t want to put that relationship at any risk. He’ll minimize the chance of that happening by giving Goodell whatever Harvey thinks Goodell wants. And it surely won’t be a guessing game. At some point, Harvey will know Goodell’s preference. And the factual findings of Judge Robinson, which are binding on the appeal process, give Harvey everything he needs to give Goodell anything he wants.