Judge Robinson’s ruling struck a brilliant balance between placating NFL, NFLPA

NFL Commissioner Roger Goodell Press Conference
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As the NFL moves toward an inevitable ruling on the appeal of Judge Sue L. Robinson’s decision to suspend Browns quarterback Deshaun Watson for the first six games of the season — a suspension that definitely will be served because Watson didn’t appeal it — many continue to argue that her decision should be binding, given her independence.

There’s a simple answer to that. The NFL and NFL Players Association agreed in early 2020 that she wouldn’t have the last word on the matter. Instead, they agreed that either side could appeal the decision of the disciplinary officer under the Personal Conduct Policy to Commissioner Roger Goodell, who would handle the appeal personally or hand it off to someone else.

The league and the union also agreed that the disciplinary officer’s factual findings would be binding on the appeal, and that no new evidence could be considered when the time came to review her decision as to whether discipline should be imposed.

She also has one specific way to end the process without an appeal. If she finds that no discipline should be imposed on the player, the case ends.

That’s not what she did here, obviously. Judge Robinson found that Watson committed four instances of “non-violent sexual assault.” She used strong words like “egregious” and “predatory” to refer to his behavior. She found that Watson wasn’t truthful in his categorical denial of misconduct. Her factual findings are final and binding, and they can’t be changed or modified or revised or supplemented on appeal.

The league, of course, has no desire to do so. She gave the NFL everything it needs in order to make whatever decision it sees fit at the next level. Yes, she chose six games. Sure, she opted to distinguish between violent and non-violent sexual assault. Peter Harvey, the designee who both is beholden to the league and was directly involved in crafting the current policy, likely will call it a distinction without a difference. Harvey will impose a much longer suspension. Harvey will have every right to do so, under the relevant terms of the Personal Conduct Policy and the Collective Bargaining Agreement.

So the league is happy with Judge Robinson. The union is, too, because she bought the effort to craft chicken salad via legal arguments that held the appeal to six games. Given that the CBA gives either party the right to unilaterally terminate the disciplinary officer, she found a way to emerge from this minefield with neither NFL nor the NFLPA motivated to make a change. In that regard, her decision was brilliant.

Could the union become upset with her once it realized (if it hasn’t already) that she cobbled together a 16-page ruling that gives Watson a short-term win but an inevitable loss? Probably not, because the union knew it was dealt a losing hand. It had to represent Watson. Federal law requires it. They took bad facts and got a not-so-bad outcome. That doesn’t change the fact that those facts are indeed bad.

Maybe her ruling contains no specific explanation as to how four different instances of non-violent sexual assault became a six-game game suspension because she understood full well that the number she chose didn’t really matter, given the ability of both sides to appeal that aspect of the decision. Instead of developing a real formula and explaining it carefully and persuasively, she just picked a number, for no apparent reason. Whether she meant to do it or not, she picked a number that the union loves but can’t keep and that the league hates but can easily change — thanks to the rest of her decision.

Someone in a position of authority and influence with the union raised with me last week the question of whether Judge Robinson would resign her post if the NFL overturns her ruling. If that were the case, judges would be stepping down every single day. Decisions made in court cases routinely are modified or overturned all the time through the normal appeal process. Judges not like it, but they never quit over it.

No, she’s not walking away. She gets paid handsomely for this work, she can use the relationship to bolster her broader practice, and she’s gotten more free publicity in the past six weeks than she did in 25 years on the federal bench combined. She’s going nowhere, and she came up with a decision that ensures the league or the union won’t choose to activate the power to ask her to.

8 responses to “Judge Robinson’s ruling struck a brilliant balance between placating NFL, NFLPA

  1. How about we take an unbiased look at how the NFL got to the 6 game Roethlisberger suspension for similar misconduct? While people (justifiably) want to use the 6 game suspension as the baseline for each incident by Watson they should probably realize the arbitrary origin of that 6 game suspension to begin with. In short, there was no precedence for sexual misconduct prior to the Roethlisberger suspension. Also, to clarify, Roethlisberger had two accusations of sexual assault and the suspension was reduced to 4 games (effectively 2 games per accusation). This isn’t a rant to justify the misconduct of either player. It’s simply to highlight the ridiculousness and arbitrary nature of the NFL misconduct policy and the blind acceptance of a LOT of fans who absolutely refuse to question what the NFL is doing to not only their work environment but the loyalty of their fan base.

  2. Justice took quite a beating, but it’s good to know the various powerful special interest groups got taken care of. That’s what really counts.

  3. She’s not really an independent party if her rulings can just be overruled by the NFL. This all begs the question of why this process couldn’t have been completed in the spring before he was even traded to begin with. It’s almost like the league was waiting for the Texans to trade him away before they decided to act.

  4. “non-violent assault”

    This is defined by the company, NFL in this case. It can be as small as staring at someone for “too long”

  5. seems like 6 games was unemotionally and rationally determined, but it did not satisfy Goodell’s need to respond to the public outcry.

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