Like the NFL’s appeal to the NFL over the six-game suspension imposed on quarterback Brown Deshawn Watson moving towards a “fast track” (by the rules) resolution, the NFL Players Association appears to be trying to create any leverage it can use to reach a settlement. These efforts include spreading the idea to some of the media that Watson could indeed play Week 1 against the Panthers if/when a federal lawsuit is filed — and if/when a federal judge decides that Watson should be allowed to play during the trial. proceedings. income.
This is a weak and far-fetched argument, and it will most likely not stand up in court. It also won’t help convince the NFL to make a deal with the union now, because the NFL is certainly aware of the shortcomings of this approach.
The main argument goes like this: since the NFL has appealed Watson’s suspension from referee Sue L. Robinson for six games, that penalty is out. It will be replaced (as the dispute continues) with whatever Peter Harvey, the commissioner’s spokesman, decides to impose. So when the time comes to sue the NFL (and in turn try to delay the start of the suspension), the court-imposed preliminary injunction will take effect from the first, not the seventh week.
There are several serious problems with this statement. First, the NFL did not contest the six-game suspension. The NFL argued only that six games weren’t enough. The NFL’s appeal is focused on whether the suspension should last beyond the first six weeks.
Second, the NFLPA did not appeal the decision. It would be the best and safest way to spend weeks one through six to get a court order allowing Watson to play. The union appears to have balanced public relations concerns (it said Sunday night it would not challenge Judge Robinson’s decision) and legal strategies by deciding not to consider the first six weeks by filing its own appeal. And so the union will instead put forward the argument (weak as it may be) that the league’s appeal is acting as clearing the deck for an undeniable six-week ban.
Third, nothing in the Personal Conduct Policy indicates that an appeal automatically erases a previous punishment from the books. Indeed, the policy explicitly states that an appeal “may set aside, reduce, modify, or increase a previously issued disciplinary action.” This means that the previous penalty remains in place after the mechanical act of appealing the decision, and the question in this particular case is only whether the penalty will “increase” after six games.
The argument that the old disciplinary sanction disappears on appeal can lead to very strange results. Let’s say the union filed an appeal, but the league didn’t. Does anyone think that on appeal the final decision could be to increase the sentence beyond six games? In this case, does anyone think that an NFL appeal could result in anything less than six games, especially when the NFL specifically asked for an increase?
Fourth, Judge Robinson’s factual findings are binding on the appeal process. She found that Watson had done what he was accused of, that he committed “non-violent sexual abuse” against four massage therapists, which resulted in three different violations of the Personal Conduct Policy. In past cases involving a suspension that was deferred by the presiding judge pending the outcome of a trial (for example, Tom Brady, Ezekiel Elliott), the NFLPA disputed the conclusion that the player did something wrong. Here the CBA makes Judge Robinson’s findings of fact fully binding on the appeal process. At this point, the union cannot deny that Watson broke the rules. The only question is whether the punishment will remain at six games or will it become more than six games.
The NFLPA seems to believe that the general circumstances have changed, now that an independent disciplinary inspector is included in the process, who conducts hearings, makes factual determinations, and imposes penalties. But the union agreed to let the commissioner, or his designee, continue to oversee the appeal. Past disputes were played out in court before the union agreed to a procedure whereby the decision of the commissioner or his appointee “shall be final and binding on all parties”. The union negotiators agreed with this wording, and the rank and file voted in favor of a new labor deal that included it. In the future, it will be much more difficult to challenge all the results of this process in court.
This leads to the fifth point. A preliminary injunction that prevents (for example) the NFL from suspending play until the lawsuit is resolved is an extraordinary remedy. This is a high bar. The analysis takes into account many factors, including the likelihood of success on the merits. The new CBA greatly reduces the likelihood of the NFLPA gaining the upper hand in Watson’s favor.
Another factor to consider when granting a preliminary injunction is whether the harm done to the player is “irreparable”. Because Watson’s six-game suspension was a foregone conclusion, he was unharmed by not playing in the first six games of the season.
Finally, it is important to remember that the league was able to secure (through the case of Tom Brady) a very favorable case in the US Court of Appeals for the Second Circuit, which includes the federal courts in New York. The League, knowing full well that litigation is coming, should be prepared to file a declarative lawsuit in federal court in New York, demanding confirmation that the internal procedure was properly conducted. In a potential race to court, the NFL will know when to file a lawsuit because the NFL will know when Peter Harvey makes his decision. All the league has to do is send a text to whoever is ready to file a case, and you’re done.
Will the NFLPA do whatever it takes to fight the league? if/when Watson will be suspended for a longer period? The fact that the union is pushing the idea that Watson might play in the first week suggests that there will be numerous aggressive efforts. However, aggressive and successful are two very different things. In the Brady and Elliot cases, the NFLPA was ultimately unsuccessful. The 2020 CBA is making Deshawn Watson fight for union and player harder, not easier.