The high and mighty NFL has more than a few original sins: CTE, flimsy contracts, tyrannical coaches, and quack doctors, to name a few. But there’s another one that looms large over the sport, rising with regularity to remind us that all this spectacle and grandeur on Sundays comes with a price: the personal conduct policy. It’s boring, because it’s a policy. The pleasure and beauty of sports is not in these types of details, but policy becomes inevitable when billions of dollars are on the table, and the NFL is worth many, many billions of dollars.
You do not need to have a PhD in workplace procedures to gather that a policy crafted in response to a public relations crisis will not work. In this case, the NFL created its anti-violence policy in the late 1990s after future Hall of Fame quarterback Warren Moon was arrested for intimate-partner violence, for which he was found not guilty, followed by exposé after exposé from sports reporters about violence by players toward women, all amid the 1990s wave of tough-on-crime legislation. Like many of the pro-police, pro-prison policies of that era, the NFL’s plan to threaten its players into compliance with vague threats of “suspension” failed, has continued to fail, and probably will always fail because bad policy begets bad policy, no matter how many times you rework it, reframe it, or even renegotiate it. The personal conduct policy has been a failure from the moment it was created, (though this has not stopped other major North American sports leagues from copying it for the sake of public relations). Left to its own devices, the NFL will never get this right.
All the NFL can do is try to find a different person to blame, a new figure onto which it can foist this odious burden of reminding us all that a good enough player will always find a way back onto the field, with just their bank account a little lighter. On Monday, that person was retired judge Sue L. Robinson, who issued her decision to suspend Cleveland Browns quarterback Deshaun Watson for six games after two dozen women sued Watson in civil court, all describing various levels of sexual misconduct by him during massage therapy appointments that included finding ways to touch them with his penis and ejaculating on them. Depending on who delivers your sports news, this was seen as either a humiliation for the NFL or great news for Watson’s new team, the Cleveland Browns. But what those quick takes never quite address is why the NFL and pro sports, time and time again, seem utterly clueless about what to do when a player is accused of violence.
Carceral systems produce carceral solutions, which do not work. It’s why the original sin of the personal conduct policy rolls downhill, getting larger, wordier, and more complicated as it goes on but never actually getting better or even beginning to make sense. The latest iteration, agreed to in the new CBA by the players and the league, says that initial punishments will be handed down by a disciplinary officer agreed to by both sides, who will review everything presented by the league as well as everything presented by the player and the union. That decision then can be appealed—to commissioner Roger Goodell. Past that, the next likely step would be taking the league to court. Like a lot of elements of our criminal justice system, it sounds good on paper, but it has significant flaws when put into practice.
The flaws are all right there, in Robinson’s decision. She does not hide them. Watson worked with more than 60 massage therapists beginning in the fall of 2019, she wrote; the NFL only investigated the cases of the 24 therapists who sued Watson in civil court. Of those 24, the NFL could only interview 12 of the women and, of those 12, the NFL chose to rely on the narratives of four massage therapists for its case against Watson. This means that what the public knows and what Robinson considered are, in some ways, two separate pots of knowledge. The public knows, and you and I know, that 24 women sued Watson in court saying he sexually harassed them during massage appointments. Robinson, however, was making her decision based on just four cases. Why the NFL felt it could only present four cases isn’t explained.
And yet, with just four cases, Robinson still found almost exclusively for the women. She determined that “it is more probable than not” Watson had erections and would touch the therapists with his erect penis. She said that Watson “was aware that contact probably would occur, and that Mr. Watson had a sexual purpose” for making the appointments. She wrote that Watson “knew such sexualized contact was unwanted.” Over and over again, Robinson said that the evidence backed up the women. If you were to read the decision and stop at halfway through at, say, page 11, you might think this was a big win for the NFL and its insistence that it does care about women.
The problem arises from the fact that punishment is the only tool that Robinson had in her toolbox; she couldn’t assign community service, like she could in a courtroom, nor could she suggest therapy or any program designed toward behavior modification, because none of that has been negotiated into the CBA. All she had was the hammer of a suspension, and all she could do with it was pick a number that, according to logic of precedent, seemed fair.
To anyone who has sat through a trial, the cruel calculus that follows will carry the familiar callousness of boiling down a life down to a number. How much is a life worth? How much is rape worth? How much is pain and suffering and loss worth? That moral math feels no less tortured and unbalanced when tacked onto sports. I think often about a quote from the lawyer John Clune, who represented an Uber driver who said she was groped by New Orleans Saints quarterback Jameis Winston. He told me: “It became an odd exercise to try to think of how many games equates to sexual misconduct like this. It underscored the sense that her focus should be on seeing a positive outcome, instead of any particular discipline.”
For decades, the NFL did very little to punish players accused of violence. ESPN found this in 2014. So did FiveThirtyEight. Researchers recently confirmed this. You knew this, too, if you followed the league with any regularity. This has left the NFL with decades of precedent that is, well, flimsy and pathetic. This matters when you bring a judge in to decide because judges, in theory, like to follow precedent. (You do not have this problem if you are the U.S. Supreme Court, which can thus take away rights to health care, the separation of church and state, and reasonable gun regulations in a matter of weeks.)
The back half of Robinson’s opinion wrestles with this precedent. To get around its decades of nonchalance, the NFL had to argue that what Watson did is unprecedented. Is it? It has, in the most morbid ways, plenty of precedent. Massage therapists who spoke to my colleague Kalyn Kahler said sexual misconduct like Watson’s does happen during appointments, even though it should not. The history of sports, both within and well beyond the NFL, is littered with stories of athletes who have thrown a person through a window, bullied and yelled racial slurs at their own teammate, hired someone to kill the mother of their child, murdered their teammate, and killed the mother of their child themselves before dying by suicide. As far as behavior for an athlete goes, what the massage therapists say happened has plenty of precedent, which is horrifying, but nonetheless a fact.
Robinson wasn’t looking within that broad of a frame, but the frame she had is equally bleak. Robinson called Watson’s conduct non-violent and, while I disagree with her on that point, even if she had considered it violent, Robinson made clear that the suspension would not have gone much higher. As she noted in her decision, “only two players have been suspended for 8 games, one for multiple incidents of domestic violence and the second for the assault of multiple victims.” One player was suspended for 10 games, after the player pleaded guilty to battery following cases of domestic violence. In other words, the season-long suspension that the NFL floated was always a smoke screen, leaked to the press to either try and influence Robinson, which it did not, or to convince the public this was not the league’s fault because they asked for a lot of games.
Robinson ended her decision with the equivalent of a legal tongue-lashing for the NFL, essentially telling them that significant changes to how it handles player discipline must be collectively bargained. (“It is inherently unfair to identify conduct as prohibited only after the conduct has been committed, just as it is inherently unjust to change the penalties for such conduct after the fact.”) You could say the NFL has a precedent problem. It’s a problem with a solution—negotiate better rules with players during the next round of collective bargaining. The players would, in return, request significant concessions from the league, and that would be fair because that’s how unions protect the rights of workers. The NFL could completely revamp its conduct policy to include community service, therapy, more preventative measures like education, or one of the many tools shown to actually work. It could even ask for harsher punishments, though it’s always worth remembering that that zero-tolerance policies don’t work and harsh punishment does not deter crime. In return, the league could give players truly guaranteed contracts, better healthcare, or agree to stop extending the regular season. All of this would be fair and likely would withstand the scrutiny of a retired judge, like Robinson, if the league chose to go this route.
The NFL will never do it.
Within hours of the news coming out, Watson appeared at Browns training camp, where fans cheered him on. In one video, you can hear the exact moment when fans realize that Watson is taking the field. The very first scream is, “Fuck yeah! Let’s go!” followed by a chorus of claps and cheers.
If change won’t come from the leagues, and it won’t, then it must come from either the sponsors or the fans. Putting the values and morals of our culture in the hands of Pepsi or Nike strikes me as a less than ideal solution, to be mild about it. So we are left with the fans. On my good days, I think that change is happening, perhaps more slowly than I would like, but happening nonetheless. The accounts of the massage therapists becoming public, becoming national news, and threatening Watson’s career are difficult things to imagine happening a decade or two ago. And yet, there are the fans at camp, cheering. They cheer because, as University of Maryland law professor Leigh Goodmark explained in an episode of the Spinsters podcast, “We don’t have a strong community consensus that says, ‘this is wrong.’”
That lack of community consensus that violence toward women and children is bad bleeds into all of our sports. It’s in the fans cheering for Watson. It’s in the eerie near silence from NBA talking heads around free agent Miles Bridges, currently charged with one felony count of injuring a child’s parent and two felony counts of child abuse under circumstances or conditions likely to cause great bodily injury or death in Los Angeles County Superior Court. It’s in the waiting to see if Trevor Bauer does win his appeal of a two-season suspension from MLB, levied after a woman requested a restraining order against him saying that Bauer sexually assaulted her, and knowing that, if Bauer never plays in MLB again, it’ll likely have little to do with concerns about women. It will have much more to do with owners feeling like his pitching just isn’t good enough anymore to justify the headache of people asking questions.
But Watson? The Browns owners and leadership decided he was worth the questions the minute they plunked down a five-year, $230 million contract for him. Jimmy and Dee Haslam wanted Watson, and the owners have a nasty habit of getting what they want because they cut the checks. When the news of the suspension broke, I talked to some friends about it and one texted me that she was disappointed but not surprised because Watson is, as she put it, good at sports. Growing up in Florida, where Friday is for high school football, Saturday is for college football, and Sunday is for the pros, we’ve both known this our entire lives. That people are talking about what Watson is accused of, that people are upset about it, is a start. But we have so much further to go.