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

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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 allowed to play during 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 begin 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 did not 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 PR 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” 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 (eg, 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 cannot 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 that 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 is important to remember that the league has managed to secure (via the Tom Brady case) very favorable legal precedent in the US 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 was ultimately unsuccessful. The 2020 CBA makes the Deshaun Watson fight harder, not easier, for the union and the player.

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