By Daniel Wallach

Talk about burying the lede.

The path to federal court for Deshaun Watson lies in the last 5 pages of Sue L. Robinson's August 1st decision. Despite concluding that Watson committed sexual assault against four women and engaged in a "pattern of conduct" which she characterized as both "predatory" and "egregious" -- Judge Robinson suspended Watson for only 6 regular season games.

In declining to suspend Watson for the entirety of the 2022 NFL regular season and post-season, Judge Robinson explained that principles of "fair notice" and "consistency of treatment among players similarly situated" required her to reject the NFL's proposal, which she characterized as both a "dramatic" and "extraordinary change" in position when compared to past disciplinary cases.

For cases involving "non-violent" sexual conduct[1] -- the longest suspension previously imposed by the NFL under the Personal Conduct Policy was only 3 games. And in that case, the player -- believed to be Jameis Winston, who allegedly touched an Uber driver "in an inappropriate and sexual manner without her consent" -- had been previously warned about his conduct. Judge Robinson observed that the discipline imposed in that case -- involving similar allegations -- was "far less severe" than what the NFL seeks in the Watson case.

In cases involving "domestic or gendered violence" -- for which a minimum 6-game suspension would attach -- Judge Robinson noted that no player had ever been suspended for a full season. The "most commonly-imposed discipline" in such cases was 6 games. While there were three prior cases where players accused of domestic or gendered violence were suspended for 8 games (two players) or 10 games (one player), those cases involved "multiple incidents of domestic violence," the "assault of multiple victims," or "multiple incidents of domestic violence" for which the player pled guilty to a battery.

When compared with those prior cases -- none of which came anywhere close to a full-season suspension (even when multiple incidents of domestic violence and/or multiple victims were involved) -- Judge Robinson characterized the NFL's pursuit of a full-season suspension for non-violent conduct as "a dramatic shift in its culture without the benefit of fair notice to -- and consistency of consequence for" -- those in the NFL subject to the Personal Conduct Policy (which encompasses both players and owners).

While conceding that it may be "entirely appropriate" to more severely discipline players for "non-violent" sexual conduct -- perhaps even more so than "violent" conduct in certain situations -- Judge Robinson cautioned that such an "extraordinary change" in the league's approach would require "fair notice" to the players similar to the notice they received in 2014 when the NFL revised its Personal Conduct Policy to include a presumptive 6-game suspension without pay for certain first-time violent offenders. By revising its policy, "the NFL gave fair notice to its players and to the public of the probable consequences of such violent conduct" -- namely, that players would face a minimum 6-game suspension.

By contrast, there was no notice given to the players that non-violent sexual conduct could be punished more "more severely" than violent sexual conduct, Judge Robinson emphasized. In setting Watson's suspension at only 6 games -- which she called "the most significant punishment ever imposed on an NFL player for allegations of non-violent sexual conduct -- Judge Robinson explained that she was "bound 'by standards of fairness and consistency of treatment among players similarly situated.'"

Advance Notice of Discipline Severity is the 'Law of the Shop' in the NFL

The words "fairness" and "consistency" have been given short shrift by those who are quick to criticize Judge Robinson's discipline as being too lenient. That might be a valid criticism if her decision were made in a vacuum. But it was not. Rather, as the NFL has acknowledged time and again, player discipline must be "fair and consistent." See In the Matter of Ray Rice, Decision of Hon. Barbara Jones (ret.) Hearing Officer, at p. 16 (Nov. 28, 2014) (quoting NFL Commissioner Roger Goodell). During the Ray Rice arbitration, for example, then NFL Senior Vice President of Labor Policy Adolpho Birch testified that, in determining player discipline, the league is “bound in large part by precedent in prior cases, decisions that have been heard on appeal in the past, and notions of fairness and appropriateness.” Birch further acknowledged that "the reality is that we have to make decisions that are fair and consistent with both the prior case law and the prior precedent . . ."

Judge Robinson's analysis of the "fair notice" issue adheres to a long line of NFL arbitral precedent recognizing that players are entitled to advance notice of prohibited conduct and potential discipline. The NFL has even gone so far as to characterize this as the "law of the shop." See Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n, 820 F.3d 527, 539 (2d Cir. 2016) (“[T]he parties agree that the ‘law of the shop’ requires the League to provide players with advance notice of prohibited conduct and potential discipline.”).

Such notice is also required in order to comport with industrial due process. See, e.g., William E. Hartsfield, Investigating Employee Misconduct, Vol. 3, Ch. 15, Arbitration, Sec. 15.7 (July 2022 update) (stating that the concept of industrial due process "includes fair notice of the rule and the consequences for violating it. "); Elkouri & Elkouri, How Arbitration Works, Ch. 15-71, Knowledge of the Rules (8th ed. 2017) ("An employee must receive clear notice of both what the employer expects as well as the range of penalties that may be imposed.").

The NFL has acknowledged the continued vitality of the "fair notice" requirement in matters of player discipline. During the 2014 arbitration arising out of the 6-game suspension of Ray Rice, Commissioner Goodell described the change to the Personal Conduct Policy -- which added a minimum 6-game suspension for certain types of violent conduct -- as "forward looking because the League is 'required to provide proper notification'" to players.

The BountyGate and Hardy Decisions

Judge Robinson's "fair notice" analysis will likely be one of the linchpins of the NFLPA's motion to vacate arbitrator Peter C. Harvey's modified discipline. In its motion papers, the NFLPA may wish to highlight two arbitral decisions in particular as exemplifying the broad reach of the "fair notice" doctrine: the BountyGate and Greg Hardy appeals heard by NFL-selected arbitrators.

In BountyGate, former Commissioner Paul Tagliabue (serving as the arbitrator) vacated discipline based on the lack of notice, holding that "[a] sharp change in sanctions or discipline can often be seen as arbitrary and as an impediment rather than an instrument of change."

In Hardy, despite "multiple separate assaults" and a finding that the conduct at issue was "egregious," Arbitrator Harold Henderson reduced Hardy's suspension from 10 games to 4 games because it violated the CBA requirement of advance notice that increased penalties would be applied. According to Arbitrator Henderson, "ten games is simply too much, in my view, of an increase over prior cases without notice [to the players of the potential for increased discipline]."

If a suspension of 10 games were "simply too much" in a case involving "multiple incidents" of domestic violence where the NFL-appointed arbitrator found the conduct to be "egregious," then how might a federal judge view a suspension of 17+ games where the underlying conduct was non-violent and the longest suspension in that category was only 3 games?

It suggests that the NFL may not necessarily have an easy time of it in federal court, particularly if the NFLPA succeeds in having the case heard in Delaware federal court, where Sue Robinson served as a judge (including as chief judge) for more than 25 years.

[1] The NFL's case included no allegation or evidence that Watson engaged in violence, made threats, applied coercion, or used force. See Judge Robinson's August 1st Decision, at pp. 5 & 13 ("There is no allegation that Mr. Watson exerted any force against any of the therapists. . . . It is undisputed that Mr. Watson's conduct does not fall into the category of violent conduct that would require the minimum 6-game suspension.").