Episode 26: Legendary Lawyer Rusty Hardin on all things Deshaun Watson

Between The Lines- EP 26- RUSTY HARDIN Interview Transcript:

Gabe Feldman: [00:00:00] Welcome to Between The Lines, a podcast about sports in the law with your host, me Gabe Feldman, Sher Garner professor of sports law at Tulane law school and the co-director of the Tulane Center For Sport. On this episode, I'm joined by Rusty Hardin, the lawyer representing embattled Cleveland Browns quarterback to Deshaun Watson about the possible discipline he is facing from the NFL, the 22 sexual misconduct lawsuits filed against him, and the legal and PR strategy to defend Watson and other high profile athletes. Here we go. 

Welcome to the show Rusty Hardin. Thank you so much for coming on. I want to start by talking about your representation up to Deshaun Watson, and I also want to say to my audience, given that there is active representation going on there might be plenty of things that you're not able to say.

Let's start with Deshaun Watson. And if you could just sort of give us the lay of the land of where we are [00:01:00] now, post grand jury activity or inactivity with the civil cases moving forward and now discussion of a potential meeting with the NFL.

Rusty Hardin: Well, actually the meeting with the NFL has now been concluded. We have not said this publicly, but now that they're over, we have talked to the NFL for a total of three days so far. I think by the time this is over, these will be the longest interviews in the history of the NFL of anybody that they're investigating.

They've indicated they want to continue to do some more questioning. And so that portion is still ongoing because as of yesterday, they felt like they hadn't gone through everyone. So that's pending. I don't have a deadline. I'd suspect that the NFL wants to conclude their investigation sometime this summer. But whether that is June or whether that's August or July, I have no idea, that's their schedule. 

What happens mechanically is, is that the investigators will make a recommendation to Goodell. They will issue their findings. We will have an opportunity to respond to their findings. And then Mr. Goodell [00:02:00] will decide what punishment, if any, they are going to recommend or what they're going to offer, we will decide whether we accept that or whether we want a hearing before the independent arbitrator who now is truly independent.

She's a retired federal judge, and it's a much fairer process, ultimately, I think, than was previously the case. These are changes that were in the collective bargaining agreement. So it's been in existence for two years, but she hasn't had to have a hearing as yet in the two years because each of the cases that have arisen since the new collective bargaining agreement, two years ago set up this procedure have settled between the NFL and the player and his representatives. So she hasn't had to conduct a hearing as yet.. But ultimately what's going to happen is, is that I've always assumed, all the publicity and everything, it's going to be very hard for the NFL to have the courage to do what I think should be done, which is no finding. That all remains to be seen sometime this summer.

Gabe Feldman: And after the now new independent arbitrator makes [00:03:00] her decision, can you explain what might happen next? Assuming that she finds him responsible for something and issues some discipline.

Rusty Hardin: Well, there's no appeal from either side, if she finds no offense. And I have always believed very strongly that the conduct that he's accused of that applies to the code of conduct, that the only conduct he's accused of that would create a violation of the code of conduct are the first two, which I don't have in front of me, but essentially, they involve some allegations of forcible sexual activity.

And as I think everybody knows, I've said what little sexual activity did occur was consensual. And there are only three occasions in our case that any type of, any type of sexual activity occurred and that's three out of 22 of the massages, and that sexual activity was consensual. And so in the grand jury, it's important for everybody to remember the grand jury actions should put that to rest [00:04:00] because two of the three women that made plaintiff allegations, cases were presented to the grand jury.

And the grand jury returned no bills. You know, one of the things, Gabe, that's been frustrating about this, people that haven't realized what these no bills mean. A no bill means they cannot find probable cause that there is any evidence of a criminal conduct and every type of allegation that the plaintiffs have made that would be potentially criminal conduct was rejected.

One grand jury rejected nine. And another grand jury rejected number 10. And so our view is to whether there's any violation of code of conduct is actually already decided by the grand jury. 

Gabe Feldman: You said, if there is no finding of responsibility, no discipline, there's no right to appeal. So the NFL doesn't get to appeal the arbitrator's decision if they're unhappy with it. But if there is discipline handed down, then can you walk through what might be the next step? 

Rusty Hardin: Yeah. well if she, the judge, finds that there is some type of offense there, and then [00:05:00] she decides what that punishment should be, The NFL can, Mr. Goodell, as I understand it, remember that we haven't done this, and the union and the NFL have different views, but as I understand it, the NFL thinks that Mr. Goodell could still change the punishment. He can't change the finding, but that he could change the punishment. All of that remains to be worked out by people different than us. We don't have anything to do with that. 

Gabe Feldman: When you were representing Adrian Peterson, the system was different, it was under a different collective bargaining agreement. And there, it was clear that the commissioner either got to hear the case and make the final decision or delegate it to somebody else to make the final decision, which, in Adrian Peterson, was Harold Henderson, which then led to a lawsuit that the arbitrator's decision was wrong.

Rusty Hardin: Remember now that's an arbitrator that used to work for Goodell and now is appointed as the arbitrator for Goodell, that's the challenged system that was changed. 

Gabe Feldman: Right. So now under this new system, there's an independent arbitrator that was chosen by both the PA and the league, as you said, [00:06:00] that may be the case that that arbitrator's decision is not final because the commissioner gets to have the final say in terms of discipline, which is a very odd way of having the system, I'm not aware of any system of arbitration where the, where the employer would have the final say, after the independent arbitrator came in, it's not really what I think many people expected to happen when the CBA was changed. Because as we just talked about, the NFL was the only league in the country where the, the commissioner had final say over off-field misconduct issues.

So that's just an issue that's still lurking out there about how things might play out. And on the, on the, the point you made that you don't think there's anything left necessarily for the arbitrator to decide in terms of whether there's been a violation of the personal conduct policy.

Rusty Hardin: I'm not quite saying that. Obviously they can decide it, but one way or the other, they can decide whether I'm right, first of all, about it. But what I'm saying, there are three allegations of some type of [00:07:00] forcible conduct. Two of those three allegations were by people whose complaints were made to the police or the DA's.

So those two are separate. The remaining one was not part of the cases the DA's office considered in terms of a complaint. But my belief is, I don't know what happens in the grand jury. My belief is the grand jury considered everybody, whether they have filed a formal complaint or not, they looked at this whole panoply of conduct that was alleged in the 22 lawsuits, because the remaining one is the woman that originally tried to shake them down for $30,000 and claimed that she would keep quiet or it would be embarrassing for everybody. That's the third allegation of force that's still out there. So I don't find it credible. I don't think the NFL will find it credible.

I don't think a jury in a civil case would find it credible, but it is still out there. I'm simply saying that when you look at the items listed under the code of conduct, the only two that could be considered potentially to have been in violation and therefore [00:08:00] subjected to punishment are the first two that are about force.

And I, I strongly believe the grand jury's decisions take care of those forcible allegations. 

Gabe Feldman: Right. So do you have a problem as a general matter? Because this is an issue that the leagues are dealing with, not just the NFL, when there is a criminal allegation and either there's no arrest. Or the grand jury decides not to indict or the player maybe is acquitted. And then the league still decides to go forward with its own independent investigation and determines based on his own investigation that the player has, even if they haven't been found to have violated the law, that they've been found to have violated the NFL conduct policy.

And it sounds like based on what you were saying, at least for those first two cases, the only argument that would have violated the NFL conduct policy is if it was forcible and the grand jury already rejected that. So as a matter of process, do you think it's unfair or unwise for the league to do these independent investigations [00:09:00] after the criminal justice system has already sort of played out and spoken.

Rusty Hardin: So, alright, you're dealing with an outside lawyer, who's not part of this system. I think it's tremendously unfair to make findings against that player. I don't necessarily object to an investigation, for them to independently verify that what the grand jury returned a no bill on, and found no probable cause that any violation occurred.

I don't object so much to them investigating to make sure that the grand jury action is in fact, the cases that they're looking at. But if they determined it was, then I think they should be bound by what the grand jury did. If we're going to say, as everybody in the system does, the prosecutor could get a ham sandwich indicted if they want, if they want to go in and do it.

If that allegation has some merit, then that would mean that when they choose not to take an action, there should be extra consideration given to that. The reason I've regretted the way it was covered after it happened is, it wasn't that they declined. I mean, [00:10:00] you instinctively used it, but you don't mean it that way.

It wasn't that they declined to indict, they found there was no probable cause that there was any evidence that he committed a crime and therefore there was no indictment. In fact, Brazoria county did it a little bit differently. They decided not to bring any charges, not only any charges, but to have no official action by the grand jury through a no bill and the prosecutor, the district attorney's office in Brazoria, which I think intellectually makes sense, says, look, if a grand jury finds that there's no evidence that a person committed a crime, a no bill still puts him or her into the system.

There's an action, so that person will still have that the rest of their life. And so if we find that there was no crime, then we should not have the grand jury take any action. So the grand jury would choose not to act at all. But whichever way you go about it, it just stands for the proposition that two independent, separate groups found no criminal conduct.

And they weren't just looking at felonies of force because the grand [00:11:00] jury in Texas can consider any connected crimes at the time that they convene. And so they were looking at both potential felony conduct and potential misdemeanor. They found no evidence of either. 

Gabe Feldman: I just have to say that I have had some ham sandwiches that should have been indicted, but let me get back to the NFL hearing, to the extent that you can talk about it, what has that process been like in the, you said, I think three days of meetings?

Rusty Hardin: I don't have any objection to the way it was conducted. I think, they're both former prosecutors, the two women that were conducting the questioning. And so like any adversarial system we might disagree at some time or another about the tone of this question or the way that was phrased etc. But overall I thought they were very professional.

I've always tried to say, look, we may very well end up disagreeing strongly with their recommendations. But everybody needs to know they are really hammer and tongs investigating. I mean, the reason is they want to make it more than three days, they haven't gotten through all the women and allegations. We can say they should have, and that should be enough, but I want to [00:12:00] make sure that if people out there know, even though I've always assumed we would have initial findings against us and we'd have to be in the system where I had the ability to cross examine and challenge the accusations.

I've always assumed that's where we would end up. But there is no question that they are taking these allegations very, very seriously. And they are investigating them very, very deeply. I don't really have any objection to the way they conducted the meetings. 

Gabe Feldman: Am I right, that they've questioned Deshaun Watson for part of those three days?

Rusty Hardin: No, that's all they do. He's been interviewed adversely for three days, and there are no rules of evidence and there are no rules of what you can't ask. So you take the average citizen, and put him in and trained former prosecutors, no matter how professional they may be, are free to ask him anything they want.

And that's what he just spent three days doing. 

Gabe Feldman: And are you at that point able to object? Or are you able to advise him not to answer?

Rusty Hardin: That's a good question. Maybe I should put my malpractice carrier on [00:13:00] notice because I didn't object to any of the questions. Uh, I didn't tell him, as you, obviously, as your question implies, conduct it like a deposition where you can instruct your client not to answer. We have said from the beginning that we were going to fully cooperate with the NFL at the same time we would cooperate with everybody., I think they would have to admit that we have more fully cooperated than anyone in the history of the NFL.

We have provided them all the depositions in the civil cases, all of the discovery in the civil cases, we have provided them depositions that he has so far given. He's deposed 11 times he's got another 11 to go because he's allowed to be questioned for two hours, centering on each woman who made the allegation.

And so we've done 11 of those so far, NFL has total access to that. And we've been doing that on an ongoing basis as these occasions worked, so they would have time to look at it and not get crushed at the very end. They would have to say, they've never had cooperation like this, and it's all born of my belief that he did [00:14:00] not do what he's alleged to have done in terms of what was either, either non consensual or not legal. And so it should be taken as some measure of my conviction about that, that we were providing the NFL, all this information, while the criminal investigation was going on. And I think as you know, we don't usually do that. 

Gabe Feldman: Right. Well, that was going to be one of my questions, but you sort of answered it, is how do you balance the potential criminal liability, versus civil liability, versus league discipline, versus court of public opinion, versus the fact that his livelihood in large part depends on people wanting to pay to see him play. And those things necessarily don't always align. It sounds like your answer here was you just, you treated it all the same..

Rusty Hardin: You're right. Look, from the beginning I had three audiences in representing, and one of them was not the general public. I have responded to Busby , some, , the lawyer for the plaintiffs, but as a whole, I've tried to not do that. Not because I was afraid of imperiling our legal position, which is [00:15:00] why you don't do it sometimes.

Because I was a prosecutor for over 15 years, I remember very much how I detested plaintiffs lawyers for my complainants and the criminal cases, out there talking all the time on the media and spinning things. So I took the position, we're going to take a big hit with the public and by the way, because of social media, I strongly believe there's some cases you can never get out in front of, and you're just going to have to buckle down and try to respond to them in the judicial system. 

But regardless of that, my audience has always, I believed. First of all, I wanted a criminal investigation. If you go back and look at how he started the civil cases, they were all anonymous. We didn't even know who the names of the people were for a month and he wouldn't give it to us informally or any other way. So we didn't know who they were. But once we knew who everybody was, my position was, I wanted them to file a criminal complaint. It was a kind of reverse. There were times, Gabe, you can appreciate where the criminal investigation is still hanging on, and... Jesus, did I drop my client in the grease because of my beliefs he wasn't [00:16:00] guilty.

I encouraged, sort of taunted, pushed to where finally, Busby, he was starting to get so much heat from the media he gave in and eight of his plaintiffs made criminal complaints. And that was a high five moment. Imagine how screwed up his whole thing is that I'm high-fiving in my office that I have finally gotten some of his people to file criminal complaints , and the reason I wanted that, is I believe so strongly that Deshaun was not guilty of a crime, I wanted trained investigators out there looking into it because I knew the public was never going to believe me. They weren't going to believe his lawyers that he didn't do anything. That's always the case. I wanted train investigators to look at it because I believed if they did, and then presented that evidence to the grand jury that he would be no billed. He would not be charged with felony or misdemeanor, but that's a huge gamble, but they did it. And so I fully cooperated with the grand jury and, and with the DA's office. [00:17:00] And from the beginning, we reached out to the police and the district attorney's office all the way back in April of last year And said once he filed the criminal complaints, we're going to fully cooperate with you, we're going to give you everything we have. I don't want to suggest to you that I may one day put my client in the grand jury, because as you know, putting your client in there where they can be questioned by a trained person and have nobody in the grand jury on their behalf, that's a different issue.

But in every other respect, we're going to cooperate fully. And what I didn't count is this non-disclosure agreement issue. I started out the representation wanting no non-disclosure agreement and the reason I didn't want it, is I didn't want down the line, the NFL to be concerned and think, and have to answer to the public as to whether we had bought silence.

So I wanted to deal with Busby if where these things were settled to get rid of, to be public so everybody could judge for themselves. And then Miami changed that equation when they came along and in anticipation of the trading [00:18:00] deadline in October of last year, they'd trade for him. They and the Texans had a deal that they would do if, if he went there, but as a condition, we had to settle all 22 of the lawsuits because the owner, and it wasn't the general manager, it wasn't a coach, the owner wanted all 22 settled and he demanded nondisclosure agreements. Because he didn't want people to be able to continue to talk once it was over. And it broke down because some of the women didn't want to settle. By the way, the irony of him not wanting to settle, it didn't settle in April because I didn't want a non-disclosure agreement and Busby was insisting on it because he didn't want the public to know how little money he was getting.

And so he wanted it private. I wanted it public, as it turns out, I found out in the depositions of a couple of the women, the two that held up for settlement didn't want a non-disclosure agreement. So we were on the same page of that issue. It was their lawyer that was in the way. So anyway, that's how these different things happened as far as, you know, whether it would or would not be a settlement.

Gabe Feldman: Just so I'm clear on that [00:19:00] one. So Busby wanted, and Busby's representing, is it all 22 of the...

Rusty Hardin: Yes, we always want people to know is yes, there's 22 lawsuits, there's one lawyer. And if you look at the complaints and the cookie cutter nature, and some of the same symptoms everybody claims and all of that jazz, those were drafted by the law firm of one lawyer. There's not like seven lawyers representing different ones of the 22. And that's a significant thing.

Gabe Feldman: And so Busby didn't want his clients to sign an NDA... 

Rusty Hardin: He did want them to sign an NDA... 

Gabe Feldman: because otherwise he would, how little money he was making would become public?

Rusty Hardin: Not he making, how much little they were getting. Cause I've always said it's possible one day they would be settled, if the amount was enough and transparent enough that it would indicate to everybody the nature of their allegations, that basically they were being settled to get 22 matters behind you.

I've always said that, but I wanted that amount to be public and Busby did not. And then, and so it broke down in April on that issue. I mean the money was agreed upon. [00:20:00] And then the next time around in October, when Miami is all of a sudden insisting on the same thing Busby was, a nondisclosure agreement, and then it broke down because a couple of women didn't want not disclosure agreements.

I didn't talk to him about was the money enough. They wanted the freedom to continue to talk about the case after it was over. And Miami took the reasonable position, I guess, well if we're going to pay you money, we don't want you to still go out there and be trashing us. Okay. That's really how that developed. Where a mistake I made is I didn't foresee that the teams were going to be as interested in a nondisclosure agreement as at least Miami was, and I suspect everybody else was. 

Gabe Feldman: Well, so then how does that work out with the Browns when he eventually gets traded to the Browns? Was there discussion there of settlement?

Rusty Hardin: No, no. As a matter of fact, all four teams that were interviewed once the dam broke, there has always been an understanding that they would stay out of trying to dictate or having to do what happened with the civil cases. Now, if you are the [00:21:00] owner of the Browns or Carolina or what else would you like all of them settled and over by August one or by July 28th when camp opens, I'm sure they would. I mean, anybody would, but they understood, and everybody else did, that we wanted the freedom to make these kinds of decisions that we thought were in the best interest of Deshaun. And the teams have all agreed. So that Cleveland is not going to be trying to dictate or arrange. They've been very good about civil cases are our issue. They wanted to know what was going to happen in the criminal justice system. None of them were making any offers or presentations until they found out

Gabe Feldman: So once it got past the criminal aspect, then it opened up where teams were....

Rusty Hardin: Well, and that takes me back to finishing what I've said. So my view was I wanted criminal investigation and then my audience then was going to be police department, the district attorney's office and the NFL. And quite frankly, no matter how much the public said, and everything, I wanted to avoid as much of that as I could.

So that meant that we would continue to take hits. [00:22:00] Busby would call the media, there are mouthpieces in the media that just print whatever he said, regardless of whether it's true, they don't even look into it. And he's made some misrepresentations even as to what's happened in the process. But my eye was on criminal. I believed that if the prosecuting authorities reached the same conclusion I had, that there was no criminal conduct, and so found, that then teams would be willing to trade for him in spite of the pendency of the 22 lawsuits. And that's what happened. As soon as the no bills happened, then my audience switches to the NFL. And so since March, that audience is the NFL. And if everybody wants to listen to the tripe that keeps getting put out, there's nothing I can do about that.

Our audience, where the teams and I'm not involved in negotiating, I want it real clear, this wonderful contract that he got from the Cleveland Browns was done by his agents and Deshaun. I had nothing to do with that. We kept very clear here. We will be focusing on defending Deshaun and the legal system and his agents, as always, will [00:23:00] be the ones to deal with this business affairs. 

Gabe Feldman: Back to the NFL process for a minute. Was his agent in the room with you as well during the hearing. 

Rusty Hardin: The NFL, Deshawn and his lawyers.. 

Gabe Feldman: What's your expectation of what happens next with the NFL interviews in terms of who they're calling in. And I know you said you don't know the timeline, but how long that, at least, the interviews might take?

Rusty Hardin: You know, I truly have no idea. We are still on the same track I've told you that we always were, we'll cooperate. They've talked to a bunch of people. I don't know who all, and they don't share any of their findings or their approach or what they believe. So I just feel like they want to get something done this summer, I just don't know which month or which day or so on.

Gabe Feldman: And was there any discussion about the commissioner exempt list as a possibility?

Rusty Hardin: Let me And I do that two ways. I don't want to discuss anything we discussed with them, but that one is such a hot button, I feel like. No, it was not. That issue is gone unless somebody else resurfaces it. I don't think it's appropriate for me to talk about anything else we talked about, but the exempt list was not even approached. 

Gabe Feldman: Just a [00:24:00] couple more questions, one on Deshaun Watson and then to pull back a little bit more on just sort of general representation strategy in these types of cases. With the depositions going on and there was obviously some testimony from the deposition, I believe it was leaked about...

Rusty Hardin: By the way, inaccurately. Busby wasn't even at that deposition, actually what he did was he, there's a USA reporter that has been trolly, whatever Busby says he prints. And he printed an article saying a certain thing about Deshaun and what he said in his deposition, and it's not true. He didn't say it in his deposition.

He didn't leak the deposition. He called up and verbally told a reporter his version of what was said. And that reporter reported it, accurately I'm sure as to what Busby said, but totally anachronistic conduit. That's not what he said, but yes. 

Gabe Feldman: So it's a game of, of deposition telephone, where Busby claims to have heard something in the deposition, tells the reporter and then the reporter prints it. And then people....

Rusty Hardin: Yeah, and then he'd point out to the reporter he wasn't even at the deposition. 

Gabe Feldman: So on that note, you've mentioned Busby a few times, and I [00:25:00] think as you've said a few times publicly, it's been a, a challenge to be litigating against him, and he has a different approach, let's say to the legal system and to using the media and the public. Can you talk a little bit about, starting with the Watson case and then maybe some other cases you've been involved in: Roger Clemens, Adrian Peterson, I mean, you can go on and on, but how difficult it is to be in the position of a defendant when the plaintiff is going public, or the plaintiff's lawyer is going public with all sorts of allegations and accusations. And in part, I think that's why you said you wanted it to go to the criminal stage so that the truth could actually be heard or, sort of that, arguments could be heard, not in this one-sided public fashion, but you did respond to Busby at one point last year, but can you talk about how you balance the barrage of statements and Instagram posts and everything else that Busby is making, versus representing your client [00:26:00] and upholding your duties and not getting dragged down into the sort of social media mud?

Rusty Hardin: It's difficult. I wouldn't even just say it was because of Busby. It's in this, it was because of, but Busby was the focal point for what was happening. But the media bears some responsibility in this too. I tell people I'm probably the most pro media guy of any lawyer you could, you could find, that's ever involved in it because 1977 was the first time the media ever wrote or did something or any story that I had something to do with.

I have, to this day, I've never been misquoted and I've never had a reporter say something, was, that I said was off the record and then he treated it as if it was on the record. So I don't have a baggage of bad treatment from the media on any kind of personal level. But I have learned that whenever you're dealing with a hot button issue, if you're representing somebody that gets in the crosshairs of domestic violence, of steroids, or HGH in baseball, men's abuse of women.

If you get caught in [00:27:00] those kinds of social issues, race would be the same, not only does the presumption of innocence go out the door, but the willingness to look behind the allegation goes out. Nobody wants to be associated with challenging the veracity of people in a milou that frequently reeks of misconduct by others.

They just want to apply it to everyone. To this day, only one human being that ever claimed any personal knowledge of Roger Clemens using steroids, the jury found him not guilty on all counts, lauded him after the trial. Not only is he not in the hall of fame, but if you took a poll , majority of people probably still think he did it.

Why? Because when it first happened, the media was unwilling to challenge and look behind the person making the allegation and investigating, and just kept repeating it and repeating it. And social media plays a role because the allegation becomes so pervasive so immediately that the [00:28:00] oldest idea of how you combated this, representing a public figure or someone that the public knows about, goes out the window.

That's what I meant by, you know, the old standard thing when I started and you started representing anybody that had a public persona, you got to get out in front of the story right away immediately and keep hammering it. Well, now it's all over the country and the world before he's even hired a lawyer. There's nobody there to challenge it for him as the narrative is being created.

Now, somebody like Busby who has absolutely no allegiance to the truth or accuracy, and he's been playing to a media who, because of the subject matter, is not looking behind it, but will print whatever he says, then you've got a recipe for not just disaster, but incredibly unfairness to the person accused. 

I'm well aware of the horrible circumstances many women find themselves in through being abused or mistreated ,or so, by men. I'm aware of that. But the problem is I'm [00:29:00] also aware of people who are sometimes falsely accused. And the media has been unwilling to look and see which category the accused falls in. And they just take that allegation and run with it, and so then the proponent, Mr. Busby, or the people making the allegation, he's not questioned either. He's not looked at, he's not talked about except they just repeat what he says. So your choice has to become, Gabe, do you get down into the ditch with him? And every time he rolls around in the dirt you respond. Or do you just have to periodically try to set the record straight recognizing it's not going to change the needle, but there's certain things you're going to have to come out.

One of the times I did is when he misstated what the FBI was doing. The FBI was looking at one of his clients and so Busby didn't even understand what was going on and because Busby in his petitions had alleged bad sex traffic and allegations against Deshaun, which he doesn't even dare make any more, when [00:30:00] FBI came to him, he went and told people that the FBI was looking into sex trafficking. They were not, they were looking into distortion. In fairness because he, Busby, was making certain allegations, that we're going to look at those too, but the investigation was about whether this woman, whose deposition's to be taken shortly in the next few days, was trying to extort money.

In that circumstance I had to call the FBI and said, look, you guys talked to our guy, we let him talk to them. You talked to him two months ago, We've not said a word. I can't leave that unchallenged. So in that one I had a press conference. We had a press conference at the beginning, but generally our approach and hope was that there would be, that the system would give a vehicle for challenge these things. And I wouldn't have to do each time, but that's not the world we live in.

Gabe Feldman: And how does that work with his agent? His marketing people? His friends, his family who were saying why aren't you saying anything? He's getting hammered and none of this is true. Most of this isn't true, whatever, whatever it might be, you're just having to educate them that it's not going to be [00:31:00] beneficial unbalance if we do come out or I just have to sort of...

Rusty Hardin: I've been very fortunate, Deshaun's an incredible client. He's a really bright young man. You can see traits as to why these teams love him so much. And I've seen in interviews, he has tremendous powers of observation. He has an incredible memory, and he's very bright, and he listens, and he's an ideal client.

The main reason for not answering each of them was nobody was going to listen and they were going to get just as criticized if they came out publicly. We really wasn't worried about our illegal position. But I did not want the prosecutors and the police to think that I was trying this in the media to put pressure on them or anything.

So I was trying to stay out of any public talk about them, except when we were cooperating. It's frustrating for everybody. Look at what we're going through with Twitter and everything right now, the choice between imposing some restrictions of what people can say and how outrageous they can be, with the fear that you are all of a sudden doing a way, you know, the first amendment, [00:32:00] it's a hard balance. It's a hard balance. 

Gabe Feldman: It is. But when you represented Roger Clemens and you were retelling part of that story and the reaction that you got and that people got to him, and this goes along with the idea that once the allegation is out there, people just often believe it's true, no matter what, and don't look behind it. You said "if they think you have messed with the integrity of their game, then you're the anti-Christ. I never got the kind of hate mail that I received when we represented. Roger."

Is that still true today?

Rusty Hardin: Deshaun, it's the same thing. It's people that don't know anything about it and they just, they just want to hate. You know, if you listen to talk radio, it's always, that's who calls in. It isn't the people who are happy, you don't hear from happy people on talk radio usually. And you don't hear from happy people in the comments to newspapers or videos or so. I would like for us to get to the stage where, you know, how if we look at our civil politics right now, there's similarities.

You've got 40% on one side, 40% on the other, [00:33:00] and really social issues in our elections are frequently being decided by that 18 to 19% of the public that's trying to decide what's right and reserve judgment. All I ever wanted to do with Deshaun, if I could move the needle back to the middle and then take my chances in the civil justice system or the criminal justice system, then I would have been happy.

The problem is, I don't know how you do that. Because the audience, it should be who is it that can hurt him in his career, and so. And that's my audience. And that's why it was always the criminal justice system and the NFL. The rest of it, we're going to have to say, I never thought I'd say it as far as dealing with the media, but the devil can take the hindmost, I mean, I can't do anything about what they do. 

Gabe Feldman: Back to the NFL process. You've mentioned earlier, the idea of cross-examining, would you get the opportunity to speak to any of their witnesses at any point?

Rusty Hardin: That's a great question. It really is because we don't know. That's one of the things about it, [00:34:00] so at a hearing, I don't know myself, and there hasn't been one yet before this judge. So we don't know what the ground rules are going to be as far as she's concerned, as far as a collective bargaining agreement's concerned, but I'm comfortable that I'm going to be able to challenge, if, if it goes to that, I'm going to be able to challenge the accusations in some courtroom atmosphere or not. Whether it is in the civil cases or whether it is before the judge and the hearing. And that's what happens with these particular allegations. They don't stand up well under challenge. They may very well be credible or look credible when being allowed to make it without being challenged and questioned and searched.

They don't hold up under searching, a searching type atmosphere. 

Gabe Feldman: On that note, what is, to the extent that you can say, what is beyond the general idea that he did something wrong or illegal. What's the biggest misconception that the public [00:35:00] might have about the 22 accusations and lawsuits?

Rusty Hardin: Is that there was this massive sexual activity going on him with massages, that he was trolling woman massages on the internet to find people to have some kind of sexual activity with. The evidence is, clearly, other than the women's allegations, which turned out to be unsupported- no telling anybody for a year, no report to law enforcement, all of them are agreeing in their depositions they never said to him in the, the event that they objected to what he was doing. There's only one woman that walked out before it was over. And that is Miss Solis, who was the first one. And that was like, with five minutes left. And she, when she announced that she wasn't comfortable in the areas he wanted massaged, which is a whole different subject, the same areas for everybody.

And they were areas that were recommended by his trainers for the Texans that he needed to have work on. She's the only one who walked out five minutes after and when she said, I'm not comfortable with this, his [00:36:00] response is, do you want to quit? And that's it, it was over. He paid her, they talked, he apologized if it made her feel uncomfortable and he left. That's the first lawsuit.

And the allegation in that first lawsuit was, he made, he intentionally made his penis come in contact with her hand. Not that he did anything to her or anything like that, or he threatened her or anything. That's the first lawsuit. And then this cascade and at the end of the day, Deshaun in his deposition has said, and I, I believe him, that there was only sexual activity in three of the 22 lawsuits.

And in none of the sexual activities, was it forced or was it the type of sex we think of. As to whether or not it's three of them, there was oral sex of one form or the other., That's it. That's what he very believably insists on. And I think the evidence is going to show that, and all of this folderol that we've been through.

That's what I think the facts are. [00:37:00] I think that was the misperceptions. 

Gabe Feldman: Well, thank you so much, Rusty. This has been incredibly enlightening. I appreciate the candor and the time you're taking in helping us all better understand this situation, and the process, and what might come next. I won't even ask you for a prediction. 'Cause, I don't want to put you on the spot of asking for a prediction because that's not what lawyers do.

I'll save the prediction question and just, and just thank you again for being so helpful.

Rusty Hardin: Yeah Gabe, I appreciate it. Let me mention one thing real quickly. I think the Cleveland Browns and the other team that sought to trade for him and wanted him, have been unfairly maligned through this whole thing, in that each of those teams did their own investigation before the criminal case was, to decide whether they were willing to gamble on a guy that had 22 lawsuits if he wasn't charged criminally, that's what they were waiting for. And each of them did their own considerable due diligence. And I think they've all been sort of unfairly slammed for not talking to the women. And as you know, the first thing that would happen with law enforcement is [00:38:00] if a private employer, a prospective employer, started going around, messing around, talking to the witnesses who they're talking to and try to decide whether they're telling the truth. They'd probably get charged with obstruction of justice. So I think all of those teams did everything they could to make up their own mind, as to whether they wanted this young man and every team that was willing to propose what the Texans wanted, as long as they were not in the same division, took a run at him. Finally, three years from now, people will have concluded that, not only is he a hell of a quarterback, but they'll be willing to entertain the fact that he's a, he's a hell of a young man.

Gabe Feldman: That was my conversation with Rusty Hardin, lawyer for Deshaun Watson. You've been listening to Between The Lines, a podcast about sports in the law. For show updates, and to keep up to date on the world of sports law, follow me on Twitter at Sports Law Guy. And don't miss out on any future episodes. Subscribe to our channel on Apple Podcasts and Spotify.

And please give it five stars. Thanks to the Tulane Center For [00:39:00] Sport for their support . This episode was produced by Jason Cohanim and Cited Media Productions. 

See you next time Between The Lines.