Under the old system, the league office would leak the possible discipline, weigh the public response to the possible discipline, then adjust the discipline accordingly.
Under the new system, the league has a retired judge make the ruling, they weigh the response to the ruling, and now they’re going to adjust the discipline based on the public response.
New CBA, functionally the same behaviour. The judge's ruling is entirely 'advisory', and just serves to take heat off of the league while providing a veneer of 'impartiality' that the NFL is free to ignore.
Consider: The NFL spoke to just 10 victims out of the 24, and then only presented the cases of 4 of them to Robinson, their 'independent arbiter'. Does this sound like an organisation that is trying to get the 'right' judgement here?
I can't remember why the NFL didn't interview the other 24, but it could easily be that they didn't want to cooperate.
But, more importantly, what do you think the NFL should have done? They're presenting a case and requesting punishment. They focused on the four women who, in their opinion, were sexually abused. If they determined the other six women were just put into an awkward situation without being abused, does that undercut their case?
I have included the rest of the context because it's important to answering your question.
Like I said, the current CBA dictates that player discipline is determined by an independent disciplinary officer, and then the league and the players’ association are granted three days to appeal the officer’s ruling. The appeal process, as stipulated by the CBA, is heard by either Roger Goodell or someone that he appoints, and that
that person's ruling is totally binding.
If you want the verbatim language it goes like this - “The Commissioner or his designee will issue a written decision that will constitute a full, final, and complete disposition of the dispute and will be binding upon the player(s) Club(s) and the parties to this Agreement.”
So this is NFL problem one (which I've already detailed): why have an independent arbiter in the first place? A: to make people like celticsclay think they're 'the good guys'.
You're asking if it weakens their case when requesting judgement: I'm saying that doesn't matter by design of the CBA, which is a different problem.
NFL problem two: this independent arbiter is a retired federal judge - so we can assume that she is going to do things by whatever rules of evidentiary procedure are hammered out in the CBA. This is, quite literally, her job. If she doesn't do that, she'll never be hired by the NFL again.
Since she can't do anything
except issue suspensions within the remit of the CBA, and she has to do things by the NFL's precedent (or she won't be rehired) she's going to wind up giving a first time offender a suspension of... probably six games. Maybe seven, at a stretch.
Because, as she notes in the decision:
A demonstrative exhibit used during the hearing indicates that since the revisions to the Policy (from 2015 to date), by far the most commonly-imposed discipline for domestic or gendered violence and sexual acts is a 6-game suspension. 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. two players have been suspended for 8 games, one for multiple incidents of domestic violence and the second for the assault of multiple victims. A single player has been suspended for 10 games, for multiple incidents of domestic violence for which the player pled guilty to battery.45 It is undisputed that Mr. Watson’s conduct does not fall into the category of violent conduct that would require the minimum 6-game suspension. It likewise is undisputed that prior cases involving non-violent sexual assault have resulted in discipline far less severe than what the NFL proposes here, with the most severe penalty being a 3-game suspension for a player who had been previously warned about his conduct.
https://www.documentcloud.org/documents/22124233-watson-rulingNow, you can disagree with her assessment that it's non-violent (I do), but the NFL has done a crap job of punishing players accused of violence (there are loads of sources for this) - and yet they are bringing in a judge to make this decision and judges, in general, like to follow precedent. In this case, the decades of pretty light-touch precedent.
So what do I want the NFL do? Well, actually caring about women would be a start, but in terms of actual achievable things:
1 - Stop relying on advisory third parties operating within a very tight remit to whitewash the fact that they (still) want to get away with punishing the players as lightly as possible, they just don't want the PR hit associated with it.
2- Expand the conduct policy to include punishments that are not in the remit of suspensions from games (for example: therapy, community service, or even harsher punishments decoupled from existing NFL precedent). This is going to have to be negotiated with the NFLPA, but it's certainly feasible - though the league wouldn't do it).
Or, as put in the decision:
Although I have found Mr. Watson to have violated the Policy, I have done so using the NFL’s post-hoc definitions of the prohibited conduct at issue. Defining prohibited conduct plays a critical role in the rule of law, enabling people to predict the consequences of their behavior. 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.
As I’ve noted above, the NFL is a private organization and can operate as it deems fit, but the post-hoc determination of what constitutes the prohibited conduct here cannot genuinely satisfy the “fairness” prong of the standard of review or justify the imposition of the unprecedented sanction requested by the NFL.
