By: Joseph Halow
On August 1, 2022, former District Judge Sue Robinson issued her decision on an unprecedented issue: Deshaun Watson’s punishment. Watson, the Cleveland Browns quarterback, had just settled twenty-three different sexual assault suits. While two Texas grand juries failed to indict Watson criminally, Robinson found evidence gathered in the NFL’s investigation compelling enough to find Watson committed non-violent sexual assault by a preponderance of the evidence.
To prove Watson committed the NFL’s self-defined version of sexual assault, the NFL had to show: (1) Watson intended to cause contact; (2) the contact was intended to be sexual; and (3) Watson knew the contact was unwanted. All were easily proven. The information on record showed that Watson had rubbed his genitalia on the masseuses as they massaged his groin. Watson also knew or should have known that the contact was unwanted, causing the masseuses express discomfort. Finally, Watson’s intent was clear. He downplayed the importance of professional qualifications, insisted on bringing his own small towel to sessions, and requested that the masseuses target generally sexualized “focus areas.” This was sufficient to incriminate Watson of sexual assault.
Watson, moreover, conducted himself in a manner which posed a danger to the victims’ safety and well-being, and his conduct undermined or put at risk the integrity of the NFL. Although none of Watson’s approaches were violent, one of the victims sought therapy after the encounter, and another questioned whether to continue her profession. Similarly, Watson used his station as a quarterback and his football team’s resources to arrange the sessions. In leveraging his position on the Houston Texans, Watson necessarily implicated the NFL enough to put the NFL’s integrity at risk.
To decide the length of Watson’s punishment, Robinson looked to precedent. Sexual or domestical violent acts committed by players traditionally warrant 6-game suspensions. Only two players have been suspended for eight games, both having committed multiple offenses. Only one player has been suspended for ten games, having pled guilty to domestic battery. By comparison, the MLB suspended pitcher Trevor Bauer for two seasons following a single incident of sexual violence.
There has been no greater than a three-game suspension imposed upon players that engaged in non-violent sexual assault. That the NFL’s conception of severe, prohibited sexual conduct has increased in scope bore no consequence to Robinson who stated, “it is inherently unfair to identify conduct as prohibited only after the conduct has been committed, just as it is inherently unjust to change the penalties for such conduct after the fact.”
Other factors did, however, aggravate Watson’s punishment. Watson has expressed no remorse and gave late notice to the NFL after the first lawsuit was filed. Furthermore, the sheer number of allegations led Robinson to call Watson’s behavior “the most egregious pattern of conduct in NFL history.” As mitigators, Robinson cites Watson’s glowing reputation before the allegations, and notes that this was his first offense. After the evidence was established and the aggravators and mitigators weighed, Robinson imposed on Watson a six-game suspension, the most significant punishment ever imposed on a player for non-violent sexual misconduct.
The NFL appealed the punishment, seeking a full season suspension. Goodell assigned Peter Harvey to issue a ruling after appeal, though any ruling would still have been reviewable in federal court. On August 18, the NFL and the NFL Players Association (“NFLPA”) settled on an 11-game suspension, a $5 million fine, and additional conditions to resolve the matter before the season began.
The decision (and subsequent settlement) illuminates many flaws. Robinson focuses on the injustice of identifying conduct as prohibited after it happens, seemingly using this as a mitigating factor that contributes to Deshaun Watson’s initial six game punishment. Robinson thereby gives the NFLPA opportunity to advocate for this—or 11games—as the maximum punishment for anything not mentioned in the rules but characterized as less egregious than Deshaun Watson’s offense. Robinson also treats Watson’s transgressions in the aggregate, setting a precedent for reducing multiple offenses into a “pattern of conduct” that effectively constitutes a single offense. Thus, the NFL provides the NFLPA with ammunition to leverage smaller, potentially unjust punishments.
These implications further highlight the inconsistency that already pervades the NFL’s disciplinary system. Calvin Ridley, for example, received an indefinite suspension after betting on his own team, the Falcons, to win one regular-season game. DeAndre Hopkins received a six-game punishment for using PEDs, while Willie Gay received four for a domestic incident involving a broken vacuum cleaner. Thus, it is increasingly clear that the NFL needs to alter its punishments to render more consistency. Robinson’s decision indicates the NFL must take that leap.
 Amy Dash, The Full Sue Robinson Decision & Summary of Her Reasoning on Deshaun Watson Suspension, League of Justice (Aug. 1, 2022), https://leagueofjustice.com/the-full-sue-robinson-decision-summary-of-her-reasoning-on-deshaun-watson-suspension/.
 Mike McDaniel, Deshaun Watson Settles Three of Four Remaining Lawsuits, Per Report, Sports Illustrated, (Aug. 1st, 2022), https://www.si.com/nfl/2022/08/01/deshaun-watson-settles-three-of-four-remaining-lawsuits-per-report.
 Dash, supra note 1.
 Decision in re: Matter of Deshaun Watson, N.Y. Times 1, 6 (2022). (https://www.nytimes.com/interactive/2022/08/01/sports/football/deshaun-watson-suspension-decision.html#:~:text=Sue%20L.,N.F.L.’s%20personal%20conduct%20policy [hereinafter Watson Decision].
 See id. at 6-9.
 See id. at 7-8.
 See id. at 8.
 Id. at 7.
 Id. at 9.
 Id. at 10-11.
 Id. at 9.
 See id. at 11.
 See id.
 Id. at 11-14.
 Id. at 13.
 Id. at 14.
 Id. at 13.
 Aldon Gonzalez, Trevor Bauer Suspended for Two Seasons by MLB; Los Angeles Dodger Pitcher to Appeal Ban, ESPN (Apr. 29, 2022), https://www.espn.com/mlb/story/_/id/33827168/los-angeles-dodgers-trevor-bauer-suspended-two-seasons.
 Watson decision, supra note 4, at 13.
 Id. at 13-14.
 Id. at 11-15.
 Id. at 14.
 See id. at 15.
 Id. at 14.
 Id. at 15.
 Mark Maske, Deshaun Watson Suspended 11 Games, Fined $5 Million Under Settlement, Wash. Post (Aug. 18, 2022), https://www.washingtonpost.com/sports/2022/08/18/deshaun-watson-suspended-appeal/.
 Watson, supra note 24, at 13-14.
 Id. at 4-9.
 Kevin Patra, Falcons WR Calvin Ridley Suspended Indefinitely Through at Least 2022 Season for Betting on NFL Games, NFL (Mar. 7, 2022), https://www.nfl.com/news/falcons-wr-calvin-ridley-suspended-indefinitely-through-2022-season-for-betting-.
 Aaron Schatz, DeAndre Hopkins Gets 6-Game PED Suspension, Football Outsiders (May 2, 2022), https://www.footballoutsiders.com/extra-points/2022/deandre-hopkins-gets-6-game-ped-suspension.
 Joshua Brisco, Chiefs LB Willie Gay Suspended Four Games for Personal Conduct Policy Violation, Sports Illustrated (Sept. 19, 2022), https://www.si.com/nfl/chiefs/news/kc-chiefs-lb-willie-gay-jr-suspended-four-games-for-personal-conduct-policy-violation.