At some point, and inevitably, the NFL will take action on the Deshaun Watson case. If that action involves an unpaid suspension imposed under the Personal Conduct Policy, the NFL Players Association will mobilize an aggressive defense on Watson’s behalf.
The NFLPA is currently preparing for a league recommendation on Watson’s “unprecedented” punishment, according to a source with knowledge of the intended strategy. Regardless of the specific penalty, the union will mobilize to defend Watson, as dictated by the federal duty of fair representation.
The source explains that the NFLPA would defend Watson in part by making an aggressive argument based on the consequences, or lack thereof, imposed on a trio of owners who have been embroiled in recent off-field controversies. The argument will be that Watson’s punishment is disproportionate to the punishment of those owners, particularly given this key line from the Personal Conduct Policy: “Property and club or league management have traditionally been held to a higher standard and will be subject to more severe disciplinary action, when violations of the Personal Conduct Policy occur.”
According to the source, the union’s defense of Deshaun Watson will specifically target the league’s handling of Commanders owner Daniel Snyder, Patriots owner Robert Kraft and Cowboys owner Jerry Jones.
As for Snyder, the union will argue that given the findings and potential recommendations from attorney Beth Wilkinson, his punishment was weak and not fully enforced. Regarding Kraft, the union will argue that despite allegedly turning a massage into a sexual encounter, Kraft received no punishment. (Although Kraft was charged with incitement, the case was dismissed based on the fact that the CCTV used by law enforcement violated the rights of the various individuals who were secretly recorded.) As for Jones, the union will argue that the league did not investigate the voyeurism scandal involving former Cowboys PR chief Rich Dalrymple, including but not limited to the key questions of what Jones knew, when he knew it, and whether he knew Dalrymple secretly taped several cheerleaders while they changed.
The union believes these arguments are more likely to be heard in 2020 than in the past, with the introduction of a new, independent process to assess potential violations of the Personal Conduct Policy. With Commissioner Roger Goodell or his designee no longer leading the effort to evaluate the evidence and make a decision, the Disciplinary Commissioner (retired Federal Judge Sue L. Robinson) may decide to allow the union to review the way the League has handled to fully examine Snyder, Kraft and Jones.
For example, the union could have access to evidence from Wilkinson’s investigation, the League’s handling of the information, and the key question of what Wilkinson would have recommended if the League had bothered to ask her for a recommendation. (As previously reported, it would have recommended forcing Snyder to sell.) The union could also have access to internal communications about whether Kraft should be disciplined and whether Jones and the Cowboys should be investigated.
This approach would be independent of Watson’s defense of any claim of wrongdoing. It would depend on whether, even if he broke the policy with a habit of arranging private massages and attempting to turn those massages into sexual encounters, any punishment of Watson would have to be justified by the punishment Snyder imposes force, the non-punishment of him and the lack of even an investigation of Jones.
Whether and to what extent this defense really holds water – and will collect real evidence – will depend on Judge Robinson, who was hired jointly by the league and the union. But if the league means what it says, when it says owners are held to a higher standard and face greater discipline for violations of the personal conduct policy, the way the league treats Snyder, Kraft and Jones also becomes directly relevant to the way Watson is being dealt with.