By Dr. Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
Cleveland Browns and former Houston Texans Quarterback Deshaun Watson is currently not playing offense this off-season, but is defending himself against 24 civil lawsuits and counting wherein the various plaintiffs allege that he engaged in ‘coercive and lewd sexual behavior’[1] when contracted to provide him with therapeutic massages.
Specifically, it is alleged that over a 17-month period spanning from the fall of 2019 through March 2021, Watson received massages from approximately sixty-six different female therapists, twenty-two of whom claim that during their session he engaged in sexual misconduct by exposing himself, coercing them to touch him in a sexual manner, touching them with his penis, or by shifting his body in a way that would force the therapist to touch his private areas. In the two other matters, the women claim that Watson’s conduct rose to the level of a sexual assault, with one plaintiff alleging that Watson pressured her to perform oral sex, while the other claimed that he grabbed both her buttocks and vagina.[2]
Now, in an interesting development, the NFL’s Houston Texans are about to become a co-defendant in the Watson civil litigation matter. Tony Buzbee, a Houston based personal injury attorney representing the women involved in the cases against Watson, announced that he will now include the franchise as a defendant after learning from both the Houston Police Department and a New York Times report that the team’s management played an integral role in contributing to Watson’s alleged loathsome and lewd behavior.
“What has become clear is that the Houston Texans organization and their contracting ‘massage therapy company’ facilitated Deshaun Watson’s conduct. In many of these cases, the Texans provided the opportunity for this conduct to occur,” Buzbee stated. “We believe the Texans organization was well aware of Watson’s issues, but failed to act. They knew or certainly should have known.”[3]
As reported by the Times, Watson’s conduct was enabled, knowingly or not, by the Texans when members of the organization scheduled massage appointments on his behalf, provided him with hotel rooms at the Houstonian for the message sessions to take place, and, most interestingly from a legal perspective, by drafting a nondisclosure agreement (NDA) for him after one of the alleged victims threatened to expose his behavior.[4]
It is assumed that counsel for the 24 plaintiffs is relying on the legal concept of ‘Respondeat Superior’ as a way to include the Texans as a defendant in the lawsuit. Respondeat superior, when translated means ‘let the superior make answer’, is a legal doctrine holding an employer liable for an employee’s wrongful acts committed within the scope of employment.[5] Therefore, an employer, in this case the Houston Texans, could possibly be liable for the acts or omissions of its employee, Watson, if his actions were within the course and scope of employment.[6]
In order to prevail on a respondeat superior claim, the injured plaintiffs must prove that at the time of the conduct, the employer’s worker (1) falls within the legal definition of “employee” and (2) the employee was acting in the course and scope of his or her employment.[7] A worker is legally considered an employee in the state of Texas when his or her employer has “the overall right to control the progress, details, and methods of operations of the work.”[8] In addition, an employee acts within the course and scope of his or her employment when performing tasks generally assigned to him or her in furtherance of the employer’s business (a) with the employer’s authority and (b) for the employer’s benefit.[9]
The question of whether or not Watson was an employee of the Houston Texans is easily answered by the fact that the young quarterback signed a four-year, $177.5 million contract extension before the 2020 season with the Texans organization to keep him with the Houston team at least through the 2025 season.[10]
The second question – whether Watson’s, as described, ‘coercive and lewd sexual behavior’ can be considered acts or omissions within the course and scope of his employment with the Texans may be somewhat more difficult, but not impossible to prove. Were the ‘tasks’ in furtherance of the employer’s business? Arguably yes – a hale and hearty, physically healthy quarterback is indeed beneficial to the Texans’ business of winning football games. Were his acts under the authority of the Texans and for its benefit? The fact that, according to the New York Times, those associated with the organization helped in providing Watson with access to the messages and that the Texans, specifically its director of security, Brent Naccara, provided him with the NDA which he began taking to appointments for the therapists to sign, may be enough to prove to a trier of fact that such acts were within the ‘employer’s authority and for its benefit’. In fact, Watson testified at a deposition that he began taking the NDAs to massages that same week that Naccara provided it to him, giving one to a ‘woman in Manvel, who signed it, and another to a woman who said in her lawsuit that she ended the session after he suggested a sexual act. Watson told her she had to sign in order for him to pay, so she did.’[11]
As fans it will be interesting to watch as this civil case plays out over the next several months, if not years. But in the interim, although two state of Texas grand juries declined to pursue criminal charges against Watson for his conduct associated with the twenty-four plaintiffs, and the Cleveland Browns thought it was prudent to trade for Watson and sign him to a guaranteed $230 million dollar contract, isn’t it time for the NFL and Commissioner Roger Goodell to step up their investigate and decide whether or not Watson’s ‘coercive and lewd sexual behavior’ is in violation of the League’s Personal Conduct Policy?
[1] https://www.nytimes.com/article/deshaun-watson-sexual-assault-lawsuit.html
[2] Id.
[3] https://abc13.com/deshaun-watson-houston-texans-sued-massage-therapists-nondisclosure-agreement/11939517/
[4] https://www.nytimes.com/article/deshaun-watson-sexual-assault-lawsuit.html
[5] Black’s Law Dictionary (10th ed.).
[6] Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 128-29, 139 (Tex. 2018).
[7] Painter, 561 S.W.3d at 128-29, 131.
[8] Painter, 561 S.W.3d at 128-29, 138.
[9] Painter, 561 S.W.3d at 128-29, 138-139.
[10] https://www.sportingnews.com/us/nfl/news/deshaun-watson-contract-cleveland-browns-void/tmetgsmn2pzulvhl9hfk518s#:~:text=Watson%20had%20signed%20a%20four,set%20to%20begin%20in%202022.
[11] https://www.nytimes.com/2022/06/07/sports/football/deshaun-watson.html
