As the NFL’s Deshaun Watson case nears its conclusion, the next step is murky and frustrating

As we approach the final stage of the NFL’s personal conduct ramifications for Cleveland's Deshaun Watson, there are no shortage of questions and a vast supply of frustration and vague answers surrounding the case of the Browns quarterback who was accused of sexual misconduct or sexual assault against multiple women, a violation of the league's personal conduct policy. It's partly due to Watson’s case being the first test to an altered disciplinary system and because the first arbitrator to impact the process, Sue L. Robinson, appeared to both align with and against the NFL.

The result has two issues rippling into this week. First, the league’s appeal of Robinson’s six-game suspension to Peter C. Harvey (who was chosen by NFL commissioner Roger Goodell to deliver a final ruling); and second, the question of what options remain for Watson and the Browns once Harvey delivers a final decision.

Yahoo Sports spoke to three sources who have participated in the Watson case up to this stage of the process, asking where the relationship stands between all parties involved and whether there is clarity in the next phase.

Arbitrator Peter C. Harvey is 'really the most important person in this now'

The vantages of opinion all had some undertones that delivered a similar message: Virtually everyone walked away from the Robinson decision and subsequent league appeal upset about how the initial arbitration unfolded. And now there is little clarity about where this will ultimately go. But everyone involved now agrees on one point: Harvey, who is a former New Jersey attorney general with NFL ties, has significant power to end the Watson case with a judgement that creates a more layered compromise than the one Robinson delivered.

Conversely, Harvey could slide the punitive scale entirely into the league’s direction, putting Watson and the NFL Players Association into a fighting stance that leads to another form of litigation.

As one source involved in the Watson case put it, “[Harvey] has the last word, literally, in what has been bargained [between the NFL and NFLPA]. He gets to say, ‘This is what it is’ with no threat of an appeal. So he’s really the most important person in this now. Everything depends on him, but he still has the challenge of finding something that’s not just equitable, but also makes everyone willing to move on. That’s it at this point, just making everyone willing to take a result. … Or you go the other way and it’s going to be — it’s going to be more bare knuckles and pugilistic than it has been, I’ll tell you that. But I still think there’s a zone of compromise. Probably not happy for anyone, but I don’t think any part of this process was about creating happiness.”

Clearly, happiness wasn’t the end result after Robinson’s decision, which was layered in criticism for essentially everyone involved. Robinson essentially told the NFL her hands were tied and the result was a six-game suspension, but added in her footnotes that while the personal conduct policy “is equally applicable to players and team owners and management,” in the past it did not appear to be applied equally across all those parties.

Once Robinson’s decision had been parsed, two polarized camps developed.

In one corner, the league essentially saw the judgement as largely agreeing with everything the NFL asserted, but disagreed with Robinson leaning on past suspension precedents. Instead, in appealing, the NFL continued to hold the stance that Watson was a special case in which unprecedented behavior required an unprecedented suspension.

In the other corner, while the union had some issues with Robinson summarily adopting the league’s viewpoint on Watson’s behavior, it was satisfied with her use of past precedent as guardrails in her decision. This despite even Robinson noting that her suspension ruling was generally going above a normal standard, applying the kind of justice that had been attached to first-time domestic violence violations.

In hindsight, details of settlement talks foreshadowed the NFL’s appeal. The league’s last “spitball” settlement suggestion to Watson and the union was a 12-game suspension and a significant fine (something approaching the $10.5 million he earned from the Houston Texans in 2021). That’s a wide margin higher than a six-game suspension. And in turn, that chasm was ultimately large enough for the league to undermine Robinson’s suspension rationale.

That’s how we got to this week, with Goodell selecting Harvey for the appeal. Here are the basic questions at hand.

Deshaun Watson's NFL punishment fate now ultimately rests with Peter C. Harvey, who is a former New Jersey attorney general with a number of league ties. (AP Photo/David Dermer)
Deshaun Watson's NFL punishment now ultimately rests with Peter C. Harvey, a former New Jersey attorney general who has league ties. (AP Photo/David Dermer)

What is happening now with NFL's Deshaun Watson suspension appeal?

Browns owner Jimmy Haslam spoke to Mark Maske of The Washington Post at the league’s owners meetings Tuesday, saying the team would “respect and honor the process” of the appeal. It’s fair to wonder what that means. You can respect and honor a process while it’s in motion and later fight it when the process concludes. Ultimately, Watson and the NFLPA are the ones who would be obliged to take up the fight, potentially with or without the Browns.

So what is happening now? Harvey is weighing the briefs from the NFL and NFLPA and then deciding if he can make an expedited suspension determination without another hearing. Legal opinions are that he can. But he also is in charge of steering this part of the process — not the league or union or the litany of outsiders who are sharing their analysis.

As of Monday, there was no suggestion from sources that settlement talks were taking place between the NFL and Watson’s camp or the union. If anything, the relationship was described in more strained terms than ever before in the process. That doesn’t bode well for a breakthrough, particularly when it couldn’t be achieved weeks ago, when the two sides were on better terms.

It’s worth noting that Harvey has the same element of control that Robinson did when she operated along her own timeline. While Harvey has been designated for this task by Goodell, there has been no suggestion that he was ordered to make a decision on a finite timeline. That means he will get to the decision when he deems fit, and the NFL and Watson’s camp will be made aware of it when there is a conclusion. This is the essence of each side “respecting and honoring the process.”

What could Harvey do here with his decision?

This is an interesting question, and it's had varying answers. One source involved in the process suggested that Harvey “in theory” could reduce Watson’s suspension to three games, operating along past precedents that Robinson noted in her decision. That same source said such a scenario was “not realistic.” A second source in the process noted that because Watson didn’t appeal Robinson's six-game suspension, that becomes a baseline and Harvey’s options would be limited to standing on Robinson’s six games rather than having the ability to reduce it.

“I do not practically think there will be a reduction of the six [game suspension],” the second source said.

From all standpoints, the larger question is how much further Harvey will choose to go beyond the suspension that's already in place. It’s possible he could embrace eight- or 10-game suspensions that were mentioned in Robinson’s decision, although she framed those as domestic violence suspensions and noted that applying them to Watson’s case would be setting a new standard in what was deemed by the league to be non-violent sexual assault. Harvey could also operate on the knowledge that the NFL had at one point appeared agreeable to a 12-game suspension with a significant fine, establishing that as a middle ground (although Watson and the union were not previously open to those settlement parameters).

Of course, there’s also the possibility that Harvey could review the transcripts, briefs, Robinson’s decision, and the NFL’s 215-page investigative report and ultimately side with the league’s interpretation of special circumstance. In other words, a one-year ban that fits the league’s narrative of unprecedented punishment for an unprecedented situation.

Is there another avenue of litigation, and what would it mean for Watson’s season?

This is by far the most debated and speculated point since the NFL filed its appeal of Robinson’s decision, while Watson and the union chose not to cross-appeal the outcome. Rather than get into the back-and-forth of the granular arguments, it’s simplest to boil it down to this: Nobody is 100 percent certain about what kind of arguments can be mustered following Harvey’s decision. And part of that is because Harvey hasn’t actually made a decision, so there’s nothing to drill down on in an argument.

That said, there seems to be some agreement that it’s going to be hard for Watson and the union to go back and argue over the six-game suspension and notch any kind of victory. However, that doesn’t mean such an avenue is closed, either. Just because it sounds like a losing path doesn’t mean it’s a closed path. Especially when the current process features new elements and is still in motion.

Generally, everyone involved appears settled on the six-game suspension being locked in by Robinson and Harvey’s role being one of “modifying” that decision. That’s the language written into the process. But nobody wants to make any definitive statements before the process has finished about whether a future injunction is impossible.

One source familiar with the language governing the process, as well as the arguments being made within it, summed it up with a frustrated retort: “Nothing is automatic. There’s nothing for certain here. There’s no guarantee of anything.”

From a legal sense, that’s a fair statement. The previous system had its day in court with the Ezekiel Elliott and Tom Brady cases. This modified system hasn’t. And there’s no telling whether some kind of misstep in the process (which we can’t yet see) suddenly occurs in this final stage with Harvey.

That alone is enough to make the outcome less than certain. It’s still a process in motion, without a final rendered judgement and plenty of unanswerable questions, all with the underlying reality that Harvey could reach some kind of conclusion that everyone can live with. At which point all of these other questions become nothing more than wasted breath and conjecture.