By Daniel Wallach

After settling 21 civil lawsuits alleging sexual misconduct, the natural inclination is to expect Deshaun Watson to be suspended following his NFL disciplinary hearing because of the low standard of proof used in such proceedings. Unlike criminal cases — which require proof beyond a reasonable doubt to convict an accused — or civil cases (which require a preponderance of the evidence in order for a plaintiff to win the lawsuit) — NFL disciplinary hearings for personal conduct policy violations (which are governed by Article 46 of the CBA) may require only a showing of “credible evidence” that the player violated the policy.

“Credible evidence” is one of the lowest evidentiary standards in the law. It generally means evidence that is “worthy” of belief, not necessarily evidence that makes it “more likely than not” that the accused person committed the alleged offense. Crucially, it imposes no duty on the fact finder to weigh conflicting evidence, no matter how substantial, and allows a charged offense to be substantiated even if only one out of several strands of evidence supports it.

Think about that for a second – even in a case where the overwhelming weight of the evidence may support the player’s version of the facts, he will still lose so long as the league can point to any credible evidence that he committed the offense, even though it may be in conflict with, or perhaps even be outweighed by, other evidence.

The "credible evidence" standard raises constitutional due process concerns

The attempted use of such a low evidentiary threshold in trial-type proceedings has been rejected by courts as a violation of due process. In Valmonte v. Bain, the Second Circuit held that the use of the "credible evidence" standard in a adversarial proceeding was unconstitutional because of "the unacceptably high risk of error." As the court observed, the credible evidence standard "does not require the factfinder to weigh conflicting evidence" and allows the prosecutor "to present the bare minimum of material credible evidence to support the allegations." Unlike the preponderance of the evidence standard, "where both sides share the risk of error,” the credible evidence standard leaves just one side -- the accused -- "bearing the brunt of the risk," the court concluded.

Similarly, the Illinois Court of Appeals, in Cavarretta v. Dep't of Children & Family Servs., found the credible evidence standard to be "deficient" because "it does not require the fact finder to weigh conflicting evidence," which is "especially unfair and unreliable in light of the nature of the testimony and the need to compare and contrast different versions of the same event." Rather than allocate the risk of error equally, the credible evidence standard "facilitates the deprivation of a significant individual interest by a standard of proof which presents a high risk of error" and "deprives a subject of due process," the court concluded.

The "credible evidence" standard is not mentioned anywhere in the CBA

But even apart from the serious due process concerns which are implicated by the use of such a low standard of proof to deprive a professional athlete of his right to work (in an industry where careers are of relatively short duration), a compelling argument can be made by Deshaun Watson's legal team that the jointly selected Disciplinary Officer -- retired Delaware federal judge Sue L. Robinson -- is not even required to use the "credible evidence" standard in determining whether the NFL has met its burden of proof in the disciplinary case against Watson.

Pointing to the league’s own documents and using basic rules of contract interpretation, Watson’s lawyers could attempt to persuade Judge Robinson to apply the higher "preponderance of the evidence" standard of proof, which would require the league to show that it was "more probable than not" that Watson violated the NFL Personal Conduct Policy.

In Watson's case, the difference between these two evidentiary standards is essentially the difference between winning and losing — or the difference between playing and not playing.

Indeed, a closer look at the league's own internal documents -- i.e., the 2020 Collective Bargaining Agreement, the NFL Personal Conduct Policy, and even Roger Goodell's arbitration ruling in Deflategate -- strongly suggest that the Disciplinary Officer has the flexibility and discretion to decline to apply the "credible evidence" standard of proof in any Article 46 disciplinary proceeding arising out of an alleged violation of the NFL's Personal Conduct Policy.

To begin with, the "credible evidence" standard is not mentioned anywhere in the Collective Bargaining Agreement. Article 46 of the new CBA specifies the procedures that are to be followed in disciplinary proceedings regarding alleged violations of the Personal Conduct Policy. Article 46 of the CBA states, for example, that “[t]he NFL will have the burden of establishing that the player violated the Personal Conduct Policy," but does not specify what that burden actually is. This silence is to be contrasted with other CBA provisions which specify a “clear preponderance of the evidence” standard of proof that is to be used in other types of arbitration proceedings between the league and its players, such as those conducted pursuant to Article 12 (section 6), Article 14 (section 3), and Article 17 (section 5) of the CBA.

You would think if it’s important enough for the NFL to specify the burden of proof in other types of arbitration proceedings where the disagreement between the league and players is over money, then it should be equally if not more important to specify the burden of proof in those sections of the CBA (such as Article 46) that can be deployed by the NFL to suspend or terminate a player's employment relationship with his team, which is a far more serious matter.

Further, the "credible evidence" standard appears only in the non-collectively-bargained Personal Conduct Policy, which was unilaterally imposed by the league on the players without the NFLPA's consent or input. That document was never expressly “incorporated by reference" into the CBA. By contrast, nearly every other external document mentioned in the CBA, such as the NFL Player Second Career Savings Plan (Article 54), the NFL Player Annuity Program (Article 55), the NFL Player Tuition Assistance Plan (Article 56), and the NFL Player Insurance Plan (Article 58), is expressly "incorporated by reference and made a part of [CBA]."

The failure to expressly incorporate the Personal Conduct Policy into the CBA is a legally significant omission. The CBA is, above all else, a contract. Under the contract-law doctrine of "incorporation by reference," which is recognized by courts in every state, when a contract (such as the CBA) expressly incorporates an external writing by reference, that writing becomes part of the contract. Conversely, the failure to expressly incorporate an external document by reference into a contract means that it should not to be treated as a part of that contract.

By failing to expressly incorporate the Personal Conduct Policy into the CBA (as it did with scores of other external documents that don't adversely impact a player’s employment status nearly as much as the Personal Conduct Policy), the NFL may have provided Watson's legal team with a colorable legal argument that the "credible evidence" standard (which appears only in the Personal Conduct Policy) is not to be used in an Article 46 proceeding governed by the CBA. Such an argument is amply supported by the numerous examples of the NFL and NFLPA expressly incorporating many other external documents into the CBA and specifying the applicable burdens of proof in several other CBA-authorized arbitration proceedings. The failure to do the same here speaks volumes.

Roger Goodell's prior acknowledgement in his Deflategate arbitration decision

Contrary to the position that the league is currently believed to be asserting in the Watson case, NFL Commissioner Roger Goodell has previously recognized that the higher "preponderance of the evidence" standard applies in Article 46 disciplinary proceedings. In his July 28, 2015 arbitration decision upholding Tom Brady's 4-game suspension in Deflategate, Commissioner Goodell (acting in his familiar capacity as appellate judge ) stated that "[t]he underlying standard of proof for factual findings in Article 46 proceedings is 'preponderance of the evidence,' or stated differently, 'more probable than not.'" (Presumably, this sentence was reviewed by the league's in-house attorneys and outside counsel Paul Weiss before being publicly released, as Goodell is not an attorney).

Notably, Goodell stated that this higher evidentiary standard applies "in Article 46 proceedings," without limiting it to disciplinary proceedings for "conduct detrimental to the integrity of, or public confidence in, the game of professional football" (which is the specific clause that Tom Brady was accused of violating).

At the time that Goodell made that statement, the NFL had already issued its Personal Conduct Policy (with its “credible evidence” standard of proof) in the aftermath of the Ray Rice saga. It is therefore notable (and, more importantly, legally significant) that Goodell stated that the higher preponderance of the evidence standard applies "in Article 46 proceedings," which at the time encompassed both "'conduct detrimental' to the game of professional football" (Subsection 1(a)) and violations of the Personal Conduct Policy (Subsection 1(e)). Goodell could have just as easily have said "in Article 46 proceedings arising out of Section 1(a)" instead of the much broader "in Article 46 proceedings" without any limiting or confining language. I would not be surprised if Deshaun Watson's legal team seizes upon this sweeping statement in urging Judge Robinson to apply the higher preponderance of the evidence standard of proof in Watson's case.

The use of the permissive "may" means that the credible evidence standard is optional, not mandatory

More importantly, the "credible evidence" language from the Personal Conduct Policy is expressed in permissive, rather than mandatory, language. In the section titled "Discipline" (on page 5), the Personal Conduct Policy states that “[i]n cases where a player is not charged with a crime, or is charged but not convicted, he may still be found to have violated the Policy if the credible evidence establishes that he engaged in conduct prohibited by this Personal Conduct Policy." (This is the only mention of “credible evidence" in the Personal Conduct Policy.)

The use of the permissive "may" in that sentence (as opposed to the mandatory "shall") means that it is within Judge Robinson's discretion whether to use the “credible evidence” standard in deciding Watson’s disciplinary case. The NFL very easily could have worded that sentence to read that the player "shall" be found to have violated the Personal Conduct Policy if the credible evidence establishes it." Instead, they used the permissive word "may," which connotes discretion rather than a mandatory obligation.

This is supported by basic principles of contract interpretation. The mandatory/permissive canon of construction provides that mandatory words, such as “shall,” impose a duty while permissible words, such as “may,” grant discretion. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 112 (2012) ("Per the ‘Mandatory/Permissive Canon,’ the word ‘may’ is commonly treated as a permissive word granting discretion.”); Janssen v. Denver Career Serv. Bd., 998 P.2d 9, 16 (Colo. App. 1999) (“[W]here the term ‘may’ is used as opposed to ‘must,’ the term refers to authority which is permissive and not mandatory.”).

Further, any ambiguities in a contract are to be construed against the party which drafted the contract. Here, NFL drafted the Personal Conduct Policy without any input from the NFLPA. As such, any uncertainty as to whether the use of the credible evidence standard is optional or mandatory must be resolved in Watson's favor and deemed to be optional.

The “credible evidence” language from the Personal Conduct Policy is outdated

The inclusion of the "credible evidence" standard in the Personal Conduct Policy appears to be a remnant of an outdated disciplinary process. The 2018 Personal Conduct Policy (the most recent one that is accessible online) employs the "credible evidence" standard in a non-analogous context: as part of an initial “disciplinary recommendation" to the Commissioner. The relevant passage on page 5 provides that "[a] disciplinary officer . . . will present a disciplinary recommendation for the Commissioner's consideration. The Commissioner will review the report (and recommendation if presented) and determine the appropriate discipline, if any, to be imposed on the player."

That process has since been changed to an adversarial proceeding under the new CBA, enacted two years after the 2018 Personal Conduct Policy. In Article 46 of the new CBA, the role of the disciplinary officer is fundamentally different. Instead of merely "recommending" discipline following an investigation, the disciplinary officer now functions as the equivalent of a trial court judge, making factual findings and imposing the actual discipline.

When the disciplinary officer's role was merely an investigative and advisory one, as opposed to adjudicative, the "credible evidence" standard made much more sense -- and would likely pass legal muster. See, e.g., Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 620 (7th Cir. 2002) (observing that the Illinois appeals court in Cavarretta "did not address in any definitive manner whether the use of the credible evidence standard during the initial phases of the investigation violated principles of due process.").

But the credible evidence standard makes less sense — and would violate due process rights — when it is used as the governing standard of proof in a contested adversarial proceeding where a trial judge must make factual findings and determine punishment that could result in the deprivation of a significant individual interest such as the loss of one’s employment.

“Credible evidence” is traditionally used as an appellate standard of judicial review

"Credible evidence" is not an evidentiary standard that is normally associated with a adversarial trial-type proceeding where findings of fact are made by a judge. It is used more typically as an appellate standard of review, such as when an appeals court must determine whether a trial judge erred in setting aside a jury's verdict. It is not a proper evidentiary threshold for an initial finding of fault in a contested adversarial proceeding where a deprivation of one's professional livelihood is at stake, particularly when such a standard was neither the subject of collective bargaining nor incorporated by reference into the CBA.

As a longtime federal district court judge who has presided over hundreds of trials in her judicial career, Judge Robinson might view this non-collectively-bargained low evidence bar as violative of procedural due process, just as the appellate courts in Valmonte and Cavarretta did.

But she doesn't even need to engage in a weighty constitutional analysis in order to justify any decision to decline to apply the “credible evidence” standard of proof in the Watson case. The NFL's own documents reveal that Judge Robinson has the flexibility to ditch the “credible evidence” burden of proof in favor of the higher preponderance of the evidence standard.

Daniel Wallach is the co-founder of Conduct Detrimental. He is a nationally-recognized gaming and sports betting attorney. You can follow him on Twitter at @WALLACHLEGAL.