Due Process: Why the NFL’s appeal of Deshaun Watson’s 6 game suspension will end up in federal court

The NFL has appealed Deshaun Watson’s 6 game suspension handed down by former federal Judge, Susanne L. Robinson.  Robinson suspended Watson for six (6) games and did not fine him any amount.  The sports media called the suspension too light and believed that the NFL needed to appeal this decision despite little, if any, evidence to suggest that league fans or sponsors threatened to boycott games.  It was inevitable that the league would appeal, however, as many sports analysts, most of whom aren’t lawyers but writers who have spent their careers getting paid to sensationalize sports, began to question NFL’s commitment to its female audience; not Judge Robinson’s analysis. 

The NFL agreed to let former federal Judge Sue L. Robinson hear the case. They aren’t happy with the result, not her analysis or the foundation for her decision

The NFL, prior to this decision, had agreed to Judge Robinson as an independent Arbitrator during its negotiations with the NFL Players Association (NFLPA) through the Collective Bargaining Agreement.  While Robinson was appointed, she served at the pleasure of league and the Commissioner.  They could have removed from her position at any time. 

The NFL and the Commissioner, didn’t even have to use Sue L. Robinson for this case, but agreed, nevertheless, to let her make this decision for the first time in the league history.  Despite this agreement, the league has appealed the decision and Goodell has named former New Jersey Attorney General Peter Harvey as the person who will hear the appeal.    

It is likely that Harvey will institute at least a twelve (12) game or possibly a full game season in addition to a substantial fine.  This is exactly what the league wanted and could have done from the start.  Harvey, unlike Robinson, has never served as a judge and there is nothing to indicate from his professional background that he has ever served as arbitrator or any type hearing officer.  He is a former federal and state prosecutor. 

This is the first case of its kind and so there is no precedent from an appeal from an independent NFL arbitrator.  Watson and the NFLPA will likely argue that the NFL agreed to Robinson as an Arbitrator and while it had the right to appeal, it exercised that right in violation of Watson’s due process rights.

Many have criticized Robinson’s decision, but she made a decision based on former cases, the evidence before her, along with mitigating and aggravating factors.  This is a similar analysis that any judge would go through when deciding a case and fashioning an appropriate sentence.  Robinson made a proper decision because she understood that a decision without a proper finding of facts and reasoning would likely lead to an appeal; this happened anyway.

What is the Due Process Argument? 

Sports analysts are correct that Judge Robinson was not sitting as an actual judge and this was not a court proceeding in a courtroom.  While this is true, Watson still maintains due process rights and Robinson’s decision was based on proper foundation. Watson’s attorneys will likely argue that a substantially increased suspension is arbitrary and capricious and therefore a due process violation. 

One very important right granted by the  5th Amendment is the right not to “be deprived of life, liberty, or property, without due process of law.”  While NFL players are not necessarily protected by constitutional due process, their collective bargaining agreement with the NFL owners may provide them with due process under a contract law theory. 

Watson and his NFLPA lawyers will argue that Robinson’s decision was a fair analysis of the facts and the evidence before her.  If the decision from Mr. Harvey leads to a one (1) year suspension or more for Watson, it is likely that it will make his appellate argument to New York’s Southern District Federal Court even stronger.  Watson’s lawyers will argue that Harvey’s decision wasn’t based on the facts before him, but rather public opinion, media pressure, and other outside forces; that it was basically mob justice.      

Do I agree with Watson’s 6 game suspension?

As the father of daughter, I don’t agree with Robinson’s light suspension but as a lawyer, I understand it.  Once we start letting the media or a mob of fans control what happens to players rather than an appointed and agreed up discipline officer, we give up what justice really means.  People often ask me how judges decide cases and my answer is a variety of factors based on case law, the facts along with mitigating and aggravating; never who screams the loudest or makes the most noise outside the courthouse.  This is exactly what the sports media is doing to the NFL.  Judge Robinson made a proper decision based on proper analysis and it should not be overturned or overruled simply because we don’t like it. 

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