According to journalist Josiana Anderson, the NFL and the NFL, along with representatives of Watson, are trying to negotiate A settlement before retired federal judge Sue Robinson, who serves as a neutral disciplinary officer under the NFL’s new procedures, suspends the suspension. Anderson explains that the talks have been brought up due to a disagreement over how many matches Watson will miss.
The NFL’s reported desire to settle with Watson is an illustration of how NFL Commissioner Roger Goodell’s powers have changed in the new NFL. He had previously issued penalties and heard, at his discretion, appeals. However, the new system did include a disciplinary officer who was jointly appointed by the association and union. If Robinson issues a ruling, Watson (through the NFLPA) or the league can appeal it. Goodell or his designee of his choice will hear the appeal.
While this system ensures that Goodell has the final say, the optics of a commissioner who is not a lawyer effectively eliminates the retired judge—also a former federal prosecutor and recipient of Excellence in the Legal Profession Awards—worthy of consideration. Goodell would be hesitant to conclude that someone of Robinson’s stature had gotten it wrong. This may be a trigger for the university to engage in settlement talks.
The conversations are also an important reminder that whether, and for how long, Watson is suspended is a question about the enforcement of a negotiated workplace policy prohibiting harmful behavior in the league. This is not a “legal” question. To this point, Robinson has not decided whether Watson has broken the law. It applies workplace policy.
The NFL and NFLPA can also enjoy the field of employment law. Generally, the union and management can agree to implement the workplace policy as they see fit. If they reach a deal in which Watson, who has not played in 2021, is suspended for eight games, and that Watson agrees not to appeal or file a lawsuit, that is within their discretion.
Both sides also have an incentive to avoid going to court. After the appeal to Goodell is decided, Watson can petition a federal court to have it set aside. The odds of success will be low. Federal law requires that judges give broad respect to arbitrators. Goodell or his designee will act as an arbitrator in hearing the appeal. Watson would need to prove that there was a glaring or meaningful flaw in the process used to judge it—a longer task with Robinson being part of that process.
But the NFL didn’t expect Tom Brady to win on the district court level in 2015, which imposed a four-game suspension. While the NFL won the next round in the U.S. Court of Appeals for the Second Circuit, the league may be wary of another high-profile court battle with a star player.