A Letter Sheds Light on Why the NFL Backed Off a One-Year Suspension and Settled With Deshaun Watson

Past misdeeds by owners, Ben Roethlisberger and an allegation that the commissioner told an owner the outcome was predetermined. What union lawyers told the NFL before the Watson settlement.

On Sunday afternoon, Deshaun Watson will play in a regular-season game for the first time since more than two dozen massage therapists publicly shared accounts of sexual harassment and assault by the Browns quarterback. The return will take place at the home stadium of the Texans, a team that over the summer reached settlements with 30 women who had either filed lawsuits or were close to doing so, saying Watson’s former employer had enabled predatory behavior. To date, Watson has denied all allegations and, most recently, insisted on answering “only football questions” at his obligatory media availability.

The NFL was once resolute, both publicly and privately, that it intended to suspend Watson indefinitely, for a minimum of at least one year. Even after independent arbitrator Sue Robinson levied a six-game suspension—a number based on precedent—in early August, the disciplinary process outlined in the 2020 collective bargaining agreement left the league with significant power. Because Robinson determined that Watson had violated the personal conduct policy, the NFL was free to appeal the suspension and hand-pick its own arbitrator, or even commissioner Roger Goodell himself. And yet, the league ultimately reached a settlement with the NFLPA requiring Watson to miss only 11 games in 2022, pay a $5 million fine (he signed a fully guaranteed $230 million contract in March), and submit to mandatory—albeit nondescript—“evaluation and treatment.”

The NFL’s personal conduct policy—especially in the aftermath of the botched Ray Rice suspension in 2014—largely functions as a public relations mechanism, and public outcry over the staggering expanse of Watson’s alleged misconduct, along with the league’s well-known desired outcome, suggested the one-year ban was coming. So how did we get here? What led to the league to back off its hard-line stance and negotiate a lesser punishment?

Several clues can be found in a 13-page letter sent by sports labor lawyer Jeffrey Kessler, on behalf of the NFL Players Association, to Peter Harvey, the former attorney general of New Jersey who was appointed by Goodell to oversee the league’s appeal of Robinson’s initial decision. It is dated Aug. 5, four days after Robinson’s initial decision was announced, two days after the NFL publicly announced its appeal and 13 days before a settlement between the NFL and Watson was announced.

(In response to a series of questions about the letter’s contents, an NFL spokesperson says, “Kessler’s request to obtain records into these matters was denied early in the process by the jointly appointed disciplinary officer [Robinson] who also rejected his argument. Subsequently, Kessler’s argument had no bearing on the league’s decision-making process during discussions with the union that led to the finalization of Watson’s discipline.” The spokesperson, on behalf of the league, declined to comment on specific allegations outlined below.)

The arguments laid out in this letter, reviewed by Sports Illustrated and the contents of which were not previously reported, give new insight into the tactics the union was prepared to deploy in a potential lawsuit, its last recourse if the punishment was increased on appeal. Along with fulfilling its obligation to defend Watson as a dues-paying member, the NFLPA saw the case as particularly important for broader, contractual reasons. It was the first exercise of the new CBA’s personal conduct policy process, one that they hoped would rein in Goodell’s previously held power as, essentially, judge, jury and executioner in all personal conduct matters. (Kessler declined to comment. An NFLPA official declined to comment on behalf of the union.)

The union would have faced steep odds to overturn a Watson suspension in federal court. However, considering the publicity-focused nature of the personal conduct policy, the letter seems to raise the specter of an inevitable drip of poor PR for the league and its owners throughout the 2022 season (and perhaps beyond) as the case worked its way through the legal system. And that specter, in turn, raises questions about the motives behind the league’s decision to settle with Watson’s camp.

The union pressed on the pasts of specific owners

In both the opening and closing sections of the letter, the NFLPA excoriated Goodell for what it describes at one point as a hypocritical “whitewashing” of sexual misconduct by NFL owners, specifically naming Daniel Snyder, Jerry Jones, Robert Kraft and former Panthers owner Jerry Richardson for past transgressions.

According to the union, Goodell’s “track record” over his 16 years as commissioner is one of “leniency and indifference” toward owners, as Snyder, Kraft and Jones have not been disciplined for their alleged actions, and Richardson received only a fine. This, the union continued, stands in stark contrast to the language of the league’s personal conduct policy, which asserts, “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 [PCP] occur.”

Specifically, the letter cited a lawsuit filed in September 2020 in which a woman—using the pseudonym “Jane Doe”—shared an account of Jones “‘intentionally, knowingly, and forcibly’ kissing and ‘grabb[ing] and grop[ing]’” her without consent. According to the letter, when asked by union lawyers during a three-day, in-person hearing for the Watson case, NFL special counsel for investigations Lisa Friel claimed to not know whether the league “even investigated” Jones “for this alleged conduct, let alone disciplined” him. (Jones’s attorneys have denied the account and successfully argued in court that they couldn’t defend him against an anonymous complainant. The case was dismissed but is currently under appeal.)

The letter also raised “allegations of sexual misconduct” against Snyder and reports of a toxic work culture, the combination which led to congressional hearings held by the U.S. House Committee on Oversight and Reform in June. (The findings of an NFL investigation have not been made public—the team was fined $10 million and Snyder agreed to step away from the franchise’s day-to-day operations for four months. Snyder has since announced that he had hired Bank of America Securities to “consider potential transactions” with regard to his majority ownership stake, including a full sale of the team. He has denied a former employee’s account of sexual harassment and assault.) A footnote in the letter adds that Friel testified she was “not aware of any formal disciplinary order” imposed on Snyder “by the commissioner or anyone else.”

The union also argued that Richardson was fined for only a pattern of workplace sexual and racial harassment, specifying an account of “‘Jeans Days’ where [Richardson] would walk through the Panthers’ offices asking women to turn around so he could comment on their backsides.” (On the same day in December 2017 when Sports Illustrated published a report about the scandal, Richardson announced his intention to sell the team, which he did the following spring.)

Unlike the accounts of Watson’s conduct with massage therapists, Kraft’s two alleged instances of solicitation in Jupiter, Fla., occurred with consenting sex workers. (Early reports of human trafficking were later proved to be exaggerated; misdemeanor prostitution charges against Kraft, who had pleaded not guilty, were dropped after video and audio surveillance evidence was ruled inadmissible.) As the NFLPA framed matters, though, when Friel was pressed on the league’s response to Kraft’s alleged behavior during the Robinson hearings, “her only explanation … was the glib assertion that ‘[p]rostitution isn’t one of the enumerated offenses in our personal conduct policy.’”

All told, the union concluded, the NFL has “giv[en] a free pass to (white) owners accused of sexual misconduct.”

The issue of Roethlisberger—and race—was raised

In the letter, the NFLPA twice quoted from a portion of the league’s appeal brief to Harvey, which asserted that Watson deserved an unprecedentedly long suspension because “​in none of the prior sexual assault cases did the players expose their genitals and touch the victims.” (SI has not reviewed the NFL’s appeal brief, and it is unclear which specific players’ sexual assault cases are being referenced.) Here the union’s letter contrasted Watson’s case with that of Ben Roethlisberger, though similar to its invocation of Kraft, this argument is a bit of a stretch in light of the details.

At the time the letter was sent, 28 women had publicly shared accounts of sexual assault and harassment by Watson. Ten of those women, all clients of plaintiff’s attorney Tony Buzbee, had agreed to be interviewed by the NFL as part of its investigation. But the league wound up bringing just four accounts to Robinson during the three-day disciplinary hearing in Delaware, where Robinson had worked as a U.S. District Court judge for nearly three decades. (It also submitted the account of a woman, going by the pseudonym “Mary,” that was published by SI in March 2021, but Robinson declined to consider any media reports.)

Regarding two accounts of forcible rape by Roethlisberger in 2010, by comparison, the letter cited only a URL to a Vice article from ’15. (Neither Watson nor Roethlisberger were charged criminally. In Roethlisberger’s case, neither woman cooperated with the NFL investigation; the Steelers quarterback’s initial six-game suspension was later reduced to four on appeal. Roethlisberger denied the allegations but settled in civil court with one of the women; the other woman asked the presiding district attorney not to prosecute Roethlisberger because she feared that a trial would be “a very intrusive personal experience.”)

Here the union’s letter veered into the uncomfortable calculus of weighing which is worse—two accounts of forcible rape or more than two dozen accounts of sexual assault and harassment—by emphasizing that Robinson’s decision “repeatedly refer[red] to Watson’s conduct as ‘non-violent’” while Roethlisberger was “accused of multiple incidents of alleged violent sexual misconduct.” (Emphasis theirs.)

The NFLPA also left little doubt that race would play a role in its argument should the case be drawn out, juxtaposing the league’s comparative treatment of “a white star quarterback and a Black star quarterback” while declaring that the union would “not hesitate to challenge racially-charged, discriminatory discipline by the league.”

Goodell is accused of telling an owner the outcome was determined before Robinson’s ruling

Finally, in the letter, the union alleged that the NFL had determined its ultimate course of action even before Robinson’s ruling. Notably, the union declared (and later repeated) that it “has learned” that Goodell “told an NFL owner that he would feel compelled to increase Watson’s discipline on appeal if Judge Robinson suspended him for 8 or fewer games.” (No additional details were provided regarding how the NFLPA learned this, or from which NFL owner.)

To that end, the union expressed its concern that Harvey—who the NFL had selected to serve as a designated independent arbitrator in past matters—was selected by Goodell to “carry-out [the commissioner’s] preordained conclusions” about the case. In the letter, the union requested that Harvey answer a series of questions regarding his impartiality, adding that it “reserve[d] the right to seek your recusal on evident partiality grounds.”

More Coverage of Deshaun Watson:

• After the Watson Trade, a Blast Radius of ‘Emotions and Anger’
• The Dangers of Pitting Cleveland Against Sexual Violence Survivors
• What You Haven’t Heard—But Need to Know—About the Deshaun Watson Cases
• A Massage Therapist on Her Session With Deshaun Watson
• The Problems With the NFL’s Deshaun Watson Investigation
• The Watson Case and the “Due Diligence” Myth