As the NFL’s appeal, to the NFL, of the six-game suspension imposed on Browns quarterback Deshaun Watson is heading for a “fast-track” resolution (by rule), the NFL Players Association seems to be trying to create everything possible leverage for a settlement. This effort includes spreading the idea to some in the media that Watson could actually play in week one against the Panthers, if/when a federal lawsuit is filed – and if/when a federal judge finds Watson should be allowed to. play while the dispute proceeds.
It’s a weak and flimsy argument, and it’s unlikely to prevail in court. It also won’t do much to persuade the NFL to strike a deal with the union now, as the NFL surely realizes the flaws in that approach.
The basic argument seems to go like this — because the NFL appealed Watson’s six-game suspension by Judge Sue L. Robinson, that punishment goes away. It will be replaced (as the argument goes) by whatever Peter Harvey, the commissioner’s appointee, decides to impose. So when it comes time to sue the NFL (and in turn try to delay the start of the suspension), a court-ordered preliminary injunction would start from week one, not week seven. .
There are several serious problems with this claim. First, the NFL did not contest the six-game suspension. The NFL argued that six games was not enough. The NFL’s appeal concerns whether the suspension should extend beyond the first six weeks.
Second, the NFLPA has not appealed the decision. It would have been the best and safest way to put week one through week six on the line for a court order that would allow Watson to play. The union apparently balanced public relations concerns (it said Sunday night that it would not challenge Judge Robinson’s ruling) and legal strategies in deciding not to challenge the first six weeks by filing its own appeal. And so the union will instead make the argument (weak as it is) that a league appeal works as a bridge-cleaning regarding the uncontested six-week ban.
Third, nothing in the personal conduct policy indicates that an appeal automatically erases the previous sanction from the books. Indeed, the policy expressly states that the appeal “may cancel, reduce, modify or increase the disciplinary sanction previously imposed”. This means that the prior sanction survives the mechanical act of appealing the decision, the question in this specific case being only whether the sanction will “increase” beyond six games.
The argument that prior discipline vanishes on appeal could lead to very strange results. Let’s say the union appealed and the league didn’t. Does anyone think that on appeal, the final decision could have been an increase in the sentence beyond six games? In that case, does anyone think the NFL’s appeal could result in less than six games — especially when the NFL specifically appealed for a raise?
Fourth, Judge Robinson’s findings of fact are binding on the appeal process. She found that Watson did what he was accused of doing, that he committed a “non-violent sexual assault” against four massage therapists, resulting in three different violations of the Personal Conduct Policy. In previous cases involving a stay that was delayed by the presiding judge pending the outcome of litigation (for example, Tom Brady, Ezekiel Elliott), the NFLPA disputed the finding that the player did anything wrong. Here, the CBA makes Judge Robinson’s findings of fact fully binding on the appeal process. The union at this point cannot deny that Watson violated the policy. The only question is whether the penalty will remain at six games or become more than six games.
The NFLPA appears to believe that the general circumstances have changed, now that the process includes an independent disciplinary officer who holds the hearing, makes factual determinations and imposes penalties. But the union agreed to allow the commissioner or his delegate to continue to monitor the appeal. Past fights had taken place in court before the union agreed to a procedure under which the decision of the commissioner or his delegate “shall be final and binding on all parties”. Union negotiators accepted this language, and the rank and file voted to accept a new labor agreement that included it. It will be much more difficult to challenge all of the results of this process in court in the future.
This brings us to the fifth point. A preliminary injunction, which prevents (for example) the NFL from implementing a suspension until the lawsuit has been resolved, is an extraordinary remedy. It’s a high bar. The analysis takes into account several factors, including the likelihood of success on the merits of the case. The ABC news makes it far less likely that the NFLPA will win on Watson’s behalf.
Another factor to consider when issuing a preliminary injunction is whether the harm suffered by the player is ‘irreparable’. With Watson’s six-game suspension inescapable, he suffered no prejudice by not playing the first six games of the season.
Finally, it is important to remember that the league succeeded in obtaining (via the Tom Brady case) a very favorable legal precedent before the United States Court of Appeals for the Second Circuit, which encompasses the federal courts of New York. . The league, knowing full well that litigation is coming, should be prepared to file a declaratory judgment action in federal court in New York, seeking confirmation that the handling of the internal process was correct. In what would be a potential courthouse race, the NFL will know when to file its case because the NFL will know when Peter Harvey makes his decision. All the league has to do is send the text to whoever is ready to drop the case, and away you go.
Will the NFLPA do everything possible to fight the league. if/when Watson receives a much longer suspension? The fact that the union is floating the idea that Watson could play in the first week suggests that there will be multiple aggressive efforts undertaken. However, aggressive and successful are two very different things. In the Brady and Elliott cases, the NFLPA was ultimately unsuccessful. ABC 2020 makes Deshaun Watson’s fight harder, not easier, for the union and the player.
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