Eventually and inevitably, the NFL will take action in the Deshaun Watson case. If that action includes an unpaid suspension imposed under the Personal Conduct Policy, the NFL Players Association will mobilize with an aggressive defense on Watson’s behalf.
Per a source with knowledge of the intended strategy, the NFLPA currently is bracing for a recommendation by the league of “unprecedented” punishment of Watson. Whatever the specific penalty, the union will mobilize to defend Watson, as it is required to do by the federal duty of fair representation.
The source explains that the NFLPA would defend Watson in part by making an aggressive argument premised on the consequences, or lack thereof, imposed on a trio of owners who recently have found themselves embroiled in off-field controversy. The argument will be that the punishment of Watson is not proportional to the punishment of those owners, especially in light of this key line from the Personal Conduct Policy: “Ownership and club or league management have traditionally been held to a higher standard and will be subject to more significant discipline when violations of the Personal Conduct Policy occur.”
According to the source, the union’s defense of Deshaun Watson will take specific aim at the league’s handling of Commanders owner Daniel Snyder, Patriots owner Robert Kraft, and Cowboys owner Jerry Jones.
As to Snyder, the union will argue that his punishment in light of the findings and potential recommendations of attorney Beth Wilkinson was weak and not fully enforced. As to Kraft, the union will argue that Kraft received no punishment despite allegedly receiving a massage became a sexual encounter. (Although Kraft was charged with solicitation, the case was dismissed based on the fact that the video surveillance utilized by law enforcement violated the rights of the various persons who were secretly recorded.) As to Jones, the union will argue that the league failed to 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 that Dalrymple was secretly recording multiple cheerleaders while they changed their clothes.
The union believes that these arguments will be more likely to find traction than in the past, given the adoption in 2020 of a new, independent process for assessing potential Personal Conduct Policy violations committed by players. With Commissioner Roger Goodell or his designee no longer presiding over the effort to evaluate the evidence and reach a decision, the Disciplinary Officer (retired federal judge Sue L. Robinson) could decide to allow the union to fully explore the manner in which the league handled Snyder, Kraft, and Jones.
The union, for example, could get 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, she would have recommended that Snyder be forced to sell.) The union also could get access to internal communications regarding whether Kraft should be disciplined, and whether Jones and the Cowboys should be investigated.
This approach would be separate from defending Watson against any claim of wrongdoing. It would be based on whether, even if he violated the policy with a habit of arranging private massages and trying to make those massages become sexual encounters, any punishment of Watson must be justified by the punishment imposed on Snyder, the non-punishment imposed on Kraft, and the lack of even an investigation of Jones.
Whether and to what extent this defense will hold any real water—and will gather any real evidence—will depend on Judge Robinson, who was jointly hired by the league and the union. But if the league means what it says when it says that owners are held to a higher standard and will be subject to more significant discipline for violations of the Personal Conduct Policy, the manner in which Snyder, Kraft, and Jones were handled by the league becomes directly relevant to the manner in which Watson is handled, too.