A plaintiff’s attorney filed numerous civil lawsuits by women against Houston Texans quarterback Deshaun Watson. The cases state Watson assaulted, sexually assaulted, and harassed women after contacting them with the pretense of seeking a traditional massage.
Watson’s lawyer has acknowledged the seriousness of the allegations, shared his view the allegations are false, an account of a “blackmail scheme” by one plaintiff, derided the tactics of the plaintiff’s lawyer, and wants to get the names of the petitioners to investigate the allegations confidentially.
The plaintiffs’ attorney has objected to that implication and said he would provide additional information about non-disclosure agreement he states Watson wanted signed.
When I get repeated questions about a topic involving sports and law, I sometimes do explainers to share my opinions about a situation.
My background is that I’ve been a lawyer for 30 years for businesses and individuals, have practical legal experience in many areas of the law, including this topic, and have written about the Houston Texans and also NFL discipline issues since 2006.
The Deshaun Watson lawsuits FAQ includes:
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Thoughts on emotional and high-profile legal topics.
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General questions about the lawsuits against Deshaun Watson.
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Civil Lawsuit Topics.
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Potential Criminal Cases.
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Potential NFL Discipline.
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NFL Trade Implications.
My goal is to discuss this in a clinical, practical, accurate way in a way where it can be helpful to both lawyers and non-lawyers who have questions about this case.
There are headers for different sections, and you can skip to the parts that interest you.
How I think of emotional and high-profile legal topics:
Assume nothing.
The shortest version of this FAQ is to assume nothing.
The more emotional and high profile the situation, the more critical it is to wait for fuller information, not assume anything, and not pre-judge based on one’s own life experiences.
High-profile cases often incentivize speculation, gossip, and trying-to-solve-the-case thinking based on limited info. Sometimes people take sides who they root for and then shoehorn known facts into the side they want to believe.
The better approach is to wait to see where the facts lead. That seems evident, but it is human nature to speculate based on your life experiences.
My experience with high-profile situations is that the public discussion is often wildly inaccurate and harmful. In the context of legal issues, for ethical and other reasons, it can be difficult for lawyers and others to fully and publicly correct the record.
Also, sometimes, even if you are one of the lawyers in an investigation or case, with access to the best information, it can be a challenge to know the whole truth. Sometimes clients do not share everything for a variety of reasons, both intentional and unintentional.
Words matter.
Humanity should be at the center of all public discussions—recognizing that your commentary and assumptions about a situation can be hurtful to people. The harm does not just apply to the people who are parties to the case. Those unfairly maligned have to endure the chatter without being in a good position to respond.
It can be harmful to people who have endured or fear experiences of assault or wrongful accusation and see how these issues are publicly discussed.
The stance of “believe women” means when discussing and investigating a situation, the default stance should be to believe accounts on their face and treat them with care and seriousness.
Historically and currently, that is not always the situation. It is good for society to encourage reporting of abuse and starting with a stance of care and belief and following the evidence. Much preferable over cynically picking a side and filtering everything through preconceived views that may be completely wrong.
The stance of keeping an open mind and letting facts play out is also important to society as a whole. It is good for society for everyone to be fully heard and not to have situations where accused people are presumed guilty without a fair process and accounting of events.
Method of Analysis.
The way I analyze anything–law, football, whatever–that I might have overt or unconscious biases is: I try to take the names off the parties, try to see things from every side’s view, see where the evidence goes, share what I know from my experiences, and trying to take care not to make assumptions.
For some of my commentary, I prefer to talk about the law issues generally and not specific to this situation.
We have different experiences and sometimes we will disagree. That is fine.
Consider this an invitation to see things in this way. To make things better and not worse. To increase understanding between people and ground things in our shared humanity and common interests when we can. To be generally cool to each other and encourage the same.
The Role of Lawyers.
A key thing to remember about covering any case: What the lawyers say is not evidence. It is words out of the lawyer’s mouth. It is information to be considered but not necessarily take at face value.
In the adversarial process, the lawyers have an obligation to zealously represent their clients within the law, provide candor to the court–meaning not knowingly lie or mislead a judge in court or a pleading. Ultimately, it is important not to speculate or make assumptions based on advocates’ words, themes, or rumors shared to the public.
Relatedly, as a personal preference, I do not enjoy when people discuss trials like sports.
The only certainty right now is that this is ugly and uncertain. Assume nothing.
General questions about the lawsuits against Deshaun Watson.
How fast is this situation likely going to be resolved?
Hard to say. The legal calendar goes slow. It takes time to properly investigate even one event, particularly when it involves confirming evidence from social media sites, gathering other evidence, and interviewing people who know the parties.
This is an extremely complex, challenging, sensitive claim to maintain or defend.
The current lawsuits are civil—for money damages only to individuals. There is the potential for criminal cases—this involves punishment by the government, such as jail.
This situation also has employment, defamation, reputational implications. Fame and money are complicating.
These factors can interact with each other, making it difficult to handle from both a legal and PR perspective. A civil case usually takes time to develop. A criminal investigation usually takes time. The NFL is also doing its own investigation. COVID-19 has clogged legal dockets, which has tended to make cases go slower.
The NFL calendar always goes much faster than investigations and the legal system.
What are the overall stakes for Deshaun Watson?
For the civil suits, the plaintiffs’ lawyer is seeking punitive damages which under some circumstances have no cap. Punitive damages are hard to prove in Texas, but even a somewhat credible risk of unlimited money damages can create unique pressures.
The acts as described in the civil lawsuits are also criminal offenses.
The allegations have significant reputational and employment implications.
Over the years, the NFL has created its own investigative arm to examine criminal-type allegations. The resolution of a civil or criminal case, in the past, may not affect how the NFL decides to handle a situation.
The NFL commissioner, Roger Goodell, has vast powers to do things he believes are for the good of the game. Typically, no matter how he chooses, some people will think he is too harsh or not harsh enough.
What do you think the resolution is going to be?
No idea. Typically, money drives the bus in most civil suits. However, in this, both sides have said it is not about money for them.
There are many ways this could go, partially based on facts and complicating factors like reputation, money, fame, sensitivity of the subject matter, criminal and employment risks, lawyer personalities and judgment calls.
Ultimately, money is the main possible resolution in civil suits. Sometimes in combination with public statements telling the world how to regard the outcome.
On some issues, trials just need to happen. Those are rare, take time to get to that point, but I do not think it is impossible given the lawyers involved.
Deshaun Watson is a good guy. There is no way he could do this, right?
Assume nothing.
Many people who know him think he is an outstanding human being. He has denied mistreatment of women generally.
But there are also people who conduct themselves one way in front of some people and criminally in front of other people. Sometimes people conduct themselves privately in ways that are not illegal but would be embarrassing or get them in personal trouble if made public.
People are complicated, and these issues can be hard to sort out even by the lawyers involved. Wait and see.
Deshaun Watson does not need to do this, so it didn’t happen, right?
Yes, it does seem odd that someone with his fame and money would need to DM strangers to do the things spelled out in the lawsuits. Also, people with or without fame and money sometimes do odd, self and other destructive actions.
Social media has increased the ability for people to interact with each other, and sometimes those things end badly in different ways. Wait and see.
According to the lawsuits, the women were all engaged in massage and bodywork as jobs, and I want to publicly speculate about stuff. Should I?
You can. In my opinion, you shouldn’t. It’s mean and gross and bad for society.
You don’t know these people as individuals. Our understanding of who they are and what happened to them is limited to the lawsuits.
When you publicly denigrate or judge people based on limited information or your perceptions, it is terrible for the people involved in the matter and for the people in your life who see how you talk about such matters and how it may reflect on their own life experiences.
The “court of public opinion” can be vulgar, wrong, and destructive. Wait and see.
Hey, this that or the other thing from the lawsuits is weird. Should I publicly speculate about that?
Well, I suppose you can but sometimes people and the situations are complicated, and truth is weird and awkward. Or sometimes, the lawyers did not articulate what happened correctly. Or you haven’t heard the full facts. Or some facts have not been shared yet for various reasons. Or you heard something someone said that was not accurate and ran with it.
Wait. See. Don’t be Court TV.
Let me adjust my tin foil hat and tell you about a conspiracy theory I heard. You want to hear it?
No. All of them are goofy. Yes, that one too. The facts will go where they go.
Deshaun Watson Civil Lawsuit Topics
Since these lawsuits are civil suits and not criminal, does it mean anything about how valid they are?
These types of actions are handled in many ways: privately, criminal only, civil only, criminal and civil together.
Why? Many possible reasons.
Many non-lawyers do not know who to contact if they have been harmed or the difference between civil and criminal actions. Sometimes it is an accident of a conversation with someone.
Some people are afraid to interact with the legal process or police. Some people do not care about imprisoning someone but want money damages and/or just to stop a behavior in order to deal with the trauma of an event.
Some people want more control of an outcome—in a civil case, your lawyer is supposed to work for you. In a criminal case, the prosecutors work for the state and not an individual. With no lawsuit but just a private claim, you have more control.
Privately handled.
Once any matter interacts with the legal system, some level of control is lost. For many disputes, sometimes they are handled privately with no public information released.
Just the notoriety of a lawsuit, without names attached, can be very frustrating and stressful to deal with given just ugly public speculation. Also, most people do not want strangers to scrutinize the most personal parts of their lives.
Sometimes only civil suits are filed.
Civil suits are more likely to occur when the accused has money. Plaintiff attorneys usually only get paid when a defendant settles, so financially, there is less incentive to take a case when a defendant does not have resources.
Sometimes, the first interaction in an assault case is with an outcry witness, if any, and then the police, either when an event happened or some time afterward. The jurisdictional trend is for police officers trained to handle sexual assault claims sensitively, but this is not always the case.
Sometimes after a sexual assault, no one is contacted.
So, the burden of proof in different types of cases is different?
Yes.
Civil cases (for money damages to a person) = the plaintiffs attorney needs to show by a “preponderance of the evidence” the events happened.
Criminal case (government punishing a person) = the government has to show that the events happened “beyond a reasonable doubt.” That standard should be high because taking away someone’s freedom should require extremely high proof.
NFL Punishment (Goodell suspending or fining players) = the standard is “did the NFL find credible evidence,” which, in short historical practice by the NFL is not really a standard but translates to whatever the NFL thinks.
NFL punishment can also be for things that are not criminal or civil offenses but are violations of league concerns, such as not cooperating sufficiently, COVID protocol violations, etc, and conduct detrimental to the game which is a catch-all that allows the Commissioner to pretty much do what he wants to do.
What does it mean that there are many lawsuits?
Any single lawsuit of this nature would be serious. Multiple ones are more serious.
Sometimes when an abusive act becomes public, it encourages others who experienced the same thing to come forward.
That this is a civil suit and not a criminal suit can be complicating because of the money involved. Money can incentivize people to make copycat claims, though even being involved in a civil case can be difficult, stressful thing.
Dealing with multiple suits of a similar nature is a challenge to investigate and at trial. Each of the claims needs to be investigated individually. Generally, cumulative evidence is more persuasive to people.
The lawsuits use similar language. Does that mean it is more or less likely it happened?
Yes and no.
As you may have heard on television, sometimes bad actors have the same M.O., modus operandi, Latin for mode of operation or way of doing things. The filings suggest that Watson tends to assault people in similar ways and cumulative evidence can be very persuasive.
There are factual differences in lawsuits, but some of the similar language would likely reflect the questions plaintiffs’ counsel likely asked his clients, such as: “Has this ever happened to you before?” “What is your background?” “How do you market for clients?” “Describe what happened?”
So similar language could reflect similar acts and the types of questions the lawyer asked his clients and how he drafts his filings but also does not rule out plaintiffs seeing the original claim and making copycat ones.
I like/don’t like the plaintiff lawyer’s tactics. What does this mean for the situation?
The plaintiffs’ lawyer is a public figure who ran and lost his bid as Mayor of Houston. People have different opinions about him, his legal practice, and how he expresses himself.
Law, unlike math, has many different ways to practice within the bounds of the law and ethics. His methods work for him, so he is going to be fully himself.
Whether you like or dislike him, how a lawyer presents a claim should not reflect anything for or against his clients.
He has no obligation to help the criminal process or the NFL investigative. His obligation is to zealously represent his clients under the law.
Representing multiple clients can be complicated.
For example, some may not want police or NFL involvement, and some might, and one plaintiff’s choice may adversely affect the others. Or some may have better lawsuits than others, but their association with the others may reflect poorly on their claims. The plaintiffs’ counsel needs to think through and communicate any conflicts his clients may have, if any.
Sometimes collectively, the claims can help each other.
Some people believe that a negative inference should be taken that all the lawsuits so far have been brought by one lawyer. I do not think that is fair as consumers of legal services often go to the lawyers they know who are interested in handling claims.
I like/don’t like Watson’s lawyer’s tactics. He represents lots of athletes. What does this mean for the situation?
Watson’s lawyer is a public figure who represents lots of athletes and other individuals. People have different opinions about him, his legal practice and how he expresses himself.
Because Watson’s lawyer has ample experience handling high profile, complex cases against athletes, he is a good lawyer to hire if you can afford his services.
For serious and quickly-evolving claims such as those against Watson, it is important to get full information before detailed commenting and responding to the lawsuits.
His lawyer has both criminal and civil experience and has worked on matters that have NFL discipline exposure. These intersecting issues complicate how he can respond to the civil case without exposing Watson to unnecessary civil, criminal, employment risk.
That is not easy to do effectively no matter where the facts lead.
That Watson can afford experienced, quality counsel should not be held against him because everyone who needs a lawyer should have one who is very competent at their job.
Does his hiring mean trial will happen?
Some people have speculated that Watson’s choice of counsel means this case will go to trial. I think the better way to think about it is that Watson’s lawyer has all the tools in the lawyer toolbox, and everyone knows he will go to trial in the most difficult, high-stakes contexts if that is the only or best option for the client.
From what it sounds like from the outside, Watson’s lawyer was not hired until after the lawsuits were filed. Hard to know if there had been previous consultation. The plaintiffs’ lawyer has suggested that the early settlement contacts with previous Watson counsel were mismanaged.
Generally, the best approach is to consult with an experienced attorney if something has the possibility of becoming a legal matter. Sometimes people avoid doing this because they believe they did nothing wrong or the situation is not serious, so they do not need a lawyer or a specialized lawyer.
Often people are not good judges of legal peril they may be in, even if they did nothing wrong.
(An aside for those who might wonder. I do not know these lawyers personally. Our firm has done co-defendant work with Watson’s lawyer and with many lawyers in Houston).
How can fame be a complicating factor for this type of suit?
Fame brings more attention to a case and invites public gossip and speculation that more traditional matters usually do not have.
People, including potential jurors, have their own views of famous people. When famous people interact with others, it is more likely that the non-famous people remember the interaction because most people do not interact with famous people.
Along with other jurisdictions, Texas has ethics rules intended to limit outside the courtroom publicity to reduce “materially prejudicing” the jury. Lawyers should not do this nor encourage others to do so.
There are plenty of good and proper exceptions to this rule, so in high profile matters, it can be challenging to ethically negotiate the different ways to address leaks, rumors and speculation. This requires repeated judgment calls, and different lawyers handle PR-related issues differently.
How does defamation law affect the public relations and information shared about these cases?
Anything within the four corners of the lawsuit and what is said in court is shielded against defamation claims. Defamation law is complex, but to simplify, in certain circumstances, you can sue people for damaging your reputation with false statements shared as facts.
If the things said in court or inside a lawsuit could cause a defamation suit, then many words could turn into defamation suits.
That said, people talking about a lawsuit outside of court can possibly be subject to defamation claims. Lawyers and parties can be subject to these suits.
So, when denials occur, they tend to be made by stating the opinion of the facts. Or that the lawyers keep referencing what is in the lawsuits. Or talking about topics generally and without specifics to a person.
Opinions are shielded from defamation law. Reputation damaging statements shared as facts typically are not. For claims similar to these, lawyers and parties need to take great care that they are not exposing themselves to defamation claim risk.
I am discussing this as a topic because some observers would want to see more forceful, less hedging statements made on behalf of the parties, and sometimes that is hard to do without defamation risk.
How do civil cases potentially complicate possible criminal cases?
In criminal cases, defendants do not need to prove their case. They have the right to remain silent under the 5th Amendment of the U.S. Constitution and not have that silence used against them in their criminal trial. (This right has been eroded over time, but that is beyond the scope of this overly-long FAQ).
The prosecution has to prove their case beyond a reasonable doubt often without any statement from the defendant. The government cannot force you to speak to take away your freedom or tell jurors your silence means you are guilty.
In civil and family law cases, however, staying silent can be used against you. The decider can make an “adverse inference” from someone staying silent for 5th Amendment reasons.
It can be a difficult judgment call to determine how and when to speak to defend your reputation and money when facing possible risk to your freedom.
Sometimes when you tell the truth as you know it, a hostile audience or an expert cross-examiner may not be likely to believe you and can twist what you say. Nothing you could say would be satisfactory to them. Words are filtered through advocacy and the prism of pre-judgment.
The cases were filed in different civil courts. Will they be tried in different courts?
Likely not. I would expect them to be consolidated into one court upon motion.
If the cases go to trial, will they be tried at the same time?
No. The cases all have individual facts. I could see a situation where some of the discovery (the legal process of learning more about the opponents case) is combined.
The cases were filed as “Jane Doe” cases. Is this allowed? What are the implications of this?
Sort of. Sometimes in civil sexual assault cases, the plaintiffs file with hidden because of the sensitive nature of the claims. “Jane Doe” usually is used for unknown people but sometimes as a pseudonym, and sometimes initials are used instead. Perhaps due to the high-profile nature of this, initials would have still invited unwanted attention and scrutiny.
I have heard of situations where the parties have come to an agreement to keep the name publicly confidential.
But generally, as a matter of Texas civil practice, if you are making a serious claim against another person, the default position is that petitions need to contain the names of the parties and their residences.
Under the Texas Civil Code, the only provision for keeping a plaintiffs name confidential involves sexual abuse of a minor cases. Under the Texas Criminal Code, there is a list of offenses where pseudonyms can be used.
In order to defend himself, Watson’s counsel will end up knowing all the names and do discovery to learn more about them. After more information, his lawyer may argue that keeping the names hidden to the public is wrong because it is not specifically allowed under Texas rules, and implies to the world that the events happened.
Some might wonder “how does Watson not know who these people are,” but as I said, assume nothing, see where the facts lead. You can believe the accounts of the women and not reflexively judge or act dismissively but also want to wait to see where the facts lead. It is possible that he never encountered any of the plaintiffs or some of them.
In the short term, it makes it more difficult to respond to the allegations.
The lawsuits seek “minimal compensatory damages” to prevent Watson from like conduct but also seek “punitive damages.” What does this mean?
To get jurisdiction in a Texas District Court, you have to plead at least the statutory minimum. The suits also ask for punitive damages. Punitive damages can be hard to obtain due to statutory limitations but can be unlimited for sexual assaults.
Is it likely that these civil cases get dismissed quickly in a motion for summary judgment?
Quickly, not likely. Cases like this involving real factual disputes between the parties are not good candidates for motions for summary judgments. Elements of the case may be dismissed over time.
Is it possible that Deshaun Watson countersues?
Sure in civil litigation, if someone sues you, you can sue them back if you have reasons to do so. That is a fact based decision so it is hard to guess if that will happen.
Criminal Case Topics
Are there criminal cases against Deshaun Watson?
Currently, plaintiffs’ counsel said that some clients might want to bring criminal charges against Watson. The Harris County District Attorney’s office has declined to comment one way or another on an investigation.
Though the civil cases list possible criminal offenses, it is the prosecutor that makes charging decisions. A person’s account of something, with no other witnesses, can be sufficient evidence to file a criminal case.
Who, if anyone, will investigate the women’s claims from a criminal perspective?
Police investigations happen in the jurisdiction where an event occurred after a report is filed.
If events occurred in Houston city limits, then the Houston Police Department would investigate after a report is filed.
If events occurred in Harris County but not in Houston city limits, then the Harris County Sheriff’s Department would investigate after a report is filed.
If events occurred in other counties or states, those individual departments would investigate after a report is filed.
The Houston Police Department has a Sex Victims Division that handles sexual assaults, child sexual abuse, physical abuse of a child and elder abuse. Harris County Sheriff’s Department has a similar unit.
How do the investigations get conducted?
The plaintiff’s attorney suggested he would be “sending affidavits and evidence from several women, to the Houston Police Department and Houston District Attorney….We will request that grand jury be empaneled to consider the evidence we provide.”
If he chooses to do so, this is what typically happens next:
The appropriate police department would investigate the claims depending on the jurisdiction.
Investigations are not just limited to just the evidence provided by the plaintiffs’ lawyer.
The investigation will go where it goes. Officers interview complainants, other witnesses, examine evidence like physical evidence, documents, electronic interactions, electronic devices.
Typically, officers do not want lawyers to be a part of the interviews. Suppose a civil lawyer is involved in the interview. In that instance, a criminal defense counsel could claim that the investigation was conducted in a biased and directed way to help a claim for money damages.
Officers typically invite the potential defendant to give a statement as well, though sometimes they do not. If they do not offer the defendant the opportunity to give a statement before filing charges, defense counsel can point out at trial the unfairness of not considering all sides.
Some people have the blanket perception that lawyers should never let defendants speak to the police. In practice, it is a judgment call whether to engage with the police directly. For many people, the mere filing of a criminal case would be extremely damaging, and certainly there are times when well-placed and well-presented facts can result in cases not being filed.
How does the grand jury work in Harris County?
After an investigation, a District Attorney will consider the information and will decided whether to take charges or not.
Charges could be for misdemeanors or felonies. If the case is a misdemeanor, there will be no grand jury involvement. Every felony case in Texas must be presented to a grand jury to determine whether the felony charge is strong enough to continue to trial.
Most of the Watson lawsuits contain descriptions that could be charged as misdemeanors. A few of the lawsuits contain descriptions that could be charged as felonies.
Often it can take months after charges for a grand jury to consider a case. Alternatively, and often in high-profile cases with outside scrutiny, a District Attorney can present the evidence to a grand jury and let them determine whether to return an indictment.
A Harris County grand jury isn’t specially empaneled for just one case; they hear hundreds of cases.
Though the civil cases list possible criminal offenses, it is the prosecutor that makes charging decisions. Just a person’s account of something can be sufficient evidence to find probable cause to file a case.
Grand jury proceedings are secret to the public.
The plaintiffs would likely be witnesses in the grand jury. Defendants may offer to testify, and it is a difficult judgment call to determine if they should. The only lawyers allowed in the grand jury are prosecutors, and a grand jury is not limited in hearing just the evidence that would be admissible at trial.
The prosecutor gives the grand jury the information to indict for specific charges or “no bill,” meaning choosing not to prosecute.
The perception is that a “grand jury will indict a ham sandwich” meaning that they are just a rubber stamp. Sometimes this is the case.
Sometimes the defense is allowed to offer some written information to help the grand jury make its decision. The defense counsel cannot present it but can offer a “grand jury packet” of relevant materials to give them fuller information to help make their decision.
Will anyone investigate potential blackmail claims from a criminal perspective?
Though private settlements are not uncommon, care needs to be taken that they are not extortive in nature. Generally, police can investigate blackmail claims involving consensual but embarrassing acts. When this happens, the public may not know unless charges are filed.
Would it make sense to get police involvement in these cases?
As noted above, once something becomes a criminal matter, the parties have less control over the investigation’s shape and outcomes. Even if someone wants to withdraw charges, sometimes the police will continue investigating and the district attorney can file charges.
Ethically, both parties need to be cautious not to threaten or bring criminal or disciplinary charges solely to gain an advantage in a civil matter. That would be in violation of a legal rule of ethics but the wording of “solely” makes it easier to come to the edge of this rule.
Police may find issues in investigations that harm the parties’ civil law positions or employment situation and may expose them to potential related or unrelated criminal activities.
Sometimes both parties want all the issues resolved between each other, and an on-going police investigation or criminal charges can be an impediment to that outcome.
Though sometimes, civil parties also want criminal charges as well as a real deterrent to future offense.
NFL Discipline Topics
How does the NFL handle investigations of this nature?
The plaintiff’s attorney shared information that the NFL is investigating the acts at the center of these lawsuits, and he says the plaintiffs will cooperate. After the NFL mishandled situations involving various crimes against women, the NFL hired former prosecutor Lisa Friel as their Senior Vice President/Special Counsel for Investigations.
Both the NFL and the Texans acknowledged that this investigation is on-going. The NFL wants cooperation from players and teams and has disciplined players and teams in the past for not cooperating sufficiently.
They look to get witnesses to interview but do not have subpoena power to compel testimony or obtain evidence. Civil lawyers may want to limit the scope of cooperation to make it less intrusive or possibly damaging to their cases. The NFL seeks information from law enforcement, but often law enforcement in its role does not provide that information to non-parties.
How long does the NFL process take?
Even with one witness, these investigations can take months to over a year. I do not think the NFL can fully investigate this case quickly.
How does potential criminal liability complicate the NFL investigation?
Typically, the NFL wants to interview a player about violations of the personal conduct policy and may want to look at his personal devices and communications. Showing and telling these things to a third party, like the NFL, would likely make them subject to sharing with police authorities.
In the Tom Brady discipline, part of his punishment was his lawyers not cooperating to the degree satisfactory to the NFL. In that matter, the only issues at stake were NFL equipment issues, and then making sure his statements under oath were true.
Attorneys can work to limit the scope of information provided but cooperating with the NFL while protecting players from the risk of criminal exposure can be difficult.
How does potential civil liability complicate the NFL investigation?
Possibly losing your income and profession based on the content of civil lawsuits makes the uncertain NFL discipline system itself a civil lawsuit monetary pressure point.
It creates an inherent risk for possible blackmail. In 2014, I wrote a widely-shared piece entitled “What is Sensible Discipline for NFL Player Misconduct.” In this, I noted some of the unique pressures an employment punishment system can cause:
In addition, any time you are dealing with high-income, high profile individuals and high stakes, there are always concerns about extortion and individuals looking to profit. That is what Dallas Cowboys owner Jerry Jones is claiming in his sexual assault civil matter.
What I know is this. Rarely do public reports of high-profile legal matters have a complete reporting of the facts. Part of that is the nature of legal matters, which often have confidentiality complications.
Ethically, there are limits on what lawyers are supposed to say publicly in criminal matters. In high profile cases, there are sometimes people who are incentivized, for whatever reasons, to release one side of a situation.
I am not saying that this is happening in the current case. The lawsuits contain disturbing information.
That the NFL has uncertain and possibly punitive outcomes, untethered from the desires of the parties and criminal and civil law outcomes, makes the weight of the NFL’s involvement difficult to navigate.
Should the plaintiffs cooperate with the NFL investigation?
Though the plaintiffs’ counsel has said we “of course, will cooperate with the NFL’s investigation and with any other investigative authorities,” this may not be in each of his clients’ individual best interests to do so.
My personal belief is I would not want abused clients cooperating with the NFL investigations based on the limited information we know from previous situations. The plaintiffs don’t work for the NFL, they do not benefit, and the process in practice has made things worse for those who have shared their stories for an investigation.
Based on the Ezekiel Elliot investigation that was made public, my view was the process was not respectful to the survivors of abusive situations. In “The Ezekiel Elliott Case Shows How Ruinous NFL Policy Is,” I noted the process involved putting a witness through hostile and not sensitive questioning by a NFL investigator, invasions of privacy, publicly-shared assessments of credibility, and not respecting the agency and desires of the cooperating witness.
Also, during a disciplinary process, if the issue is considered a personal conduct violation, all the investigative materials and interviews are turned over to the player. Depending on the timing of the civil claim, this could be disadvantageous to the plaintiff.
What is the potential NFL discipline for Deshaun Watson?
The short answer? Much of that is up to the wide and uncertain discretion of the NFL Commissioner, Roger Goodell. The facts are not fully known, and information is evolving, but he has various tools he has used in previous discipline events.
In 2020, the NFL and the NFL Players Association (NFLPA) entered into a new NFL Collective Bargaining Agreement (CBA) [pdf link]. The process and terms for discipline are contained in this document. The main sections that guide discipline are Articles 43 and 46.
The main difference highlighted by most media discussing the CBA was an attempt to get more neutral decision maker to hand out discipline. In looking at CBA language, however, all power still flows to the Commissioner with no true fairness tweaks to the process.
There are two tracks that the Commissioner can use to discipline players: Under his broad good of the game “conduct detrimental” powers used for both on and off-field issues and also under violations of the Personal Conduct Policy.
For personal conduct, the key CBA provision to look at is Article 46. Under Article 46, Section 1 (e), a Disciplinary Officer mutually chosen by the parties would conduct hearings, consider evidence, and make a final and binding decision.
Except that it isn’t. Either party can appeal to the Commissioner, and he or his designee would come to a final decision.
The standard for determining what acts can result in punishment is low, “credible evidence,” no right to cross-examine witnesses, and very limited appeal rights. Basically, the NFL discipline system is a PR exercise with pretend process protections.
In the Elliott case, the person doing the questioning for the NFL did not believe the witness was credible, the witness did not want Elliott punished, and much of this information was not a part of the final report.
Even if the investigation is not completed, Goodell has vast powers under the “Commissioners Exempt List” to suspend a player with pay until an investigation and discipline are finished. I do not think this would happen with an ongoing NFL investigation, but it is hard to say for certain.
Determining employee discipline is hard in any organization. I do not think it is to anyone’s benefit that the NFL feels to be more punitive than America’s civil and criminal laws. I know people disagree with my premise, but I believe how the NFL discipline functions currently causes intentional and unintentional harm to most everyone.
Recently, Roger Goodell has shown some efforts to listen to a wider variety of voices, and to continue to change the discipline process over time, and I hope this finds his way to him.
Really, how long will he be suspended, if any?
Anyone who tells you they know right now is full of it. Goodell has extremely wide discretion. We are still learning basic information.
How do these serious legal issues affect a trade of Deshaun Watson?
Everyone has opinions on this subject. The following is my speculation about football decisions based various factors:
The Texans Decision Makers.
The Houston Texans have made it known that they are not interested in trading him. Their public words about him were before these lawsuits becoming public. There are mixed rumors about whether the Texans would be amenable to trade, but I would be surprised if they would not listen at all.
Texans leadership repeatedly states their care about how the players conduct themselves on and off the field, more than most teams, so this situation likely makes things more untenable even if they are publicly wait and see.
Unsure if his present issues change Deshaun Watson’s point of view about forcing a trade right now. Missing practice and games intentionally costs money. Defending complex suits costs money. Reputational damage costs endorsement money. His financial situation has changed since he privately asked for a trade. The lawsuits and his lawyers are based in Harris County.
None of those things likely would affect his reported lack of trust in Texans leadership but may make it more difficult to take the financial penalties associated with not participating in camp and games.
Possible Outcomes.
With the known information, there are many possible facts and outcomes. The known and unknown unknowns are vast.
The timing of any possible suspension could be when the season starts if Goodell decided to use the Commissioners Exempt List. Or it could be in the far future if he waits for the legal and investigative process to play out more. For example, Antonio Brown was not put on the Exempt List after the 2019 civil lawsuit from his trainer alleging rape, and the NFL investigation has remained open.
Draft Compensation.
Difficult to determine the appropriate draft compensation with someone objectively great at football facing serious, multiple allegations that are morally repugnant, have potential criminal risk, the distraction of civil suits, and the Commissioner sensitive to both violence against women issues and how league actions appear.
Blowback.
Deshaun Watson is the quarterback of the Houston Texans. If he stays that while things are uncertain, it does not change the current situation much. A team trading assets for him would have to prepare for the serious blowback they receive, when in my opinion, they cannot fully do an investigation of this from their standpoint. Different people’s comfort level with team choices is different.
As I have been saying since January: everything will stay ugly until it isn’t.
Have any additional questions, comments? Put them below.
It’s sometimes hard to talk about legal issues to a broad audience without simplifying to the point of complete inaccuracy. So, if you have any legal questions of a more or less detailed nature than above, please let me know. My comment community is usually a good one.
(Please note: I approve all comments individually and sometimes that takes time because I am living my life. My general moderation rule is be generally cool to each other: nothing abusive, personal, spam, off-topic. Makes for better reading for all of us.)
