The NFL’s suspension of Dallas Cowboys star Ezekiel Elliott for alleged domestic violence could soon become a legal controversy. The 22-year-old running back intends to appeal the six-game suspension, which the league issued on Friday and is scheduled to go into effect on Sept. 2. If the league doesn’t vacate or reduce the suspension to Elliott’s satisfaction, he could then file a lawsuit. For his part, Cowboys owner Jerry Jones might also weigh legal action against both the NFL and commissioner Roger Goodell. These possibilities no doubt sound intriguing. However, as explained below, they would face extremely long odds.
Understanding Elliott’s suspension as a workplace punishment
Elliott’s suspension reflects Goodell’s conclusion that the recipient of the Pro Football Weekly/Pro Football Writers of America 2016 Rookie of the Year Award engaged in conduct that violated the NFL’s Personal Conduct Policy. The alleged conduct centers on allegations made by Elliott’s former girlfriend, Tiffany Thompson. Thompson contends that Elliott committed multiple acts of violence against her during the week of July 16, 2016. The alleged acts, which included repeated hits, occurred in Columbus, Ohio, and a few months after the Cowboys had drafted Elliott with the No. 4 pick in the 2016 NFL draft out of Ohio State. Thompson has made other accusations against Elliott concerning alleged conduct that took place prior to Elliott becoming an NFL player. The NFL’s statement announcing Elliott’s suspension did not opine on those earlier allegations.
Elliott has not been charged with a crime related to any of Thompson’s allegations. This means that law enforcement has presumably not (yet) found probable cause to arrest him. Further, Elliott’s representatives insist that Thompson has lied and exaggerated. Those representatives assert that Thompson’s claims are contradicted by both affidavits and physical evidence. For example, they contend that Thompson’s injuries are attributable to a bar fight involving Thompson.
The fact that Elliott has not been charged with a crime does not immunize him from NFL discipline. In fact, it has no bearing.
The relevant legal test for whether the NFL can discipline Elliott is whether the discipline complies with the collective bargaining agreement signed by the NFL and Elliott’s union, the NFLPA. As in other management-labor relationships, the CBA for NFL players dictates when, and under which circumstances, the league and teams can fine, suspend or expel. The applicable provision of the CBA is Article 46, which instructs that the commissioner can punish a player who engages in “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” The appropriate meanings of the phrases, “conduct detrimental,” “integrity of” and “public confidence” are all determinable by the commissioner on a case-by-case basis. “Conduct detrimental” can thus apply to very different kinds of player controversies. This is true when they concern genuinely serious allegations of domestic violence or when they involve far less important allegations of equipment tampering.
Although perhaps only 1% or 2% of NFL players ever encounter Article 46, it has nonetheless attracted significant scrutiny in recent years. This is due mainly to the NFL’s controversial disciplining of Tom Brady and Adrian Peterson. Those two players filed federal lawsuits against the NFL. Both lawsuits failed for the same basic reason: Article 46 empowers Goodell to find facts, issue punishments and hear appeals as an arbitrator. Further, even if Goodell is flat out wrong about his conclusions, a court will not disturb those conclusions.
In 2014, the NFL attempted to improve consistency in how Article 46 is applied to domestic violence matters. At that time, NFL owners agreed to a domestic violence policy that ensured experts would review allegations and that a first-time punishment for domestic violence would be six games. The prior lack of consistency was apparent in the NFL’s mishandling of the Ray Rice matter. Rice, in fact, ultimately prevailed over the NFL in a hearing before former U.S. District Judge Barbara Jones. Despite the NFL adopting a new domestic violence policy in 2014, the league subsequently punished New York Giants kicker Josh Brown—who by his own admission abused his wife—for only one game in 2016.
In regards to Elliott, the NFL employed a panel of four experts: former New Jersey Attorney General Peter Harvey, Hall of Fame member Ken Houston, The Women of Color Network CEO Tonya Lovelace and former U.S. Attorney Mary Jo White. According to the NFL, they reviewed medical records, electronic communications and other relevant evidence. To be sure, this is an accomplished group with legitimate expertise. Its recommendation to Goodell on Elliott elevates the credibility of Goodell’s decision.
If Elliott’s appeal fails, he can file a lawsuit but it would probably fail
Before Elliott can file a lawsuit with a plausible chance for success, he must first exhaust the administrative remedies provided by the CBA. If he files before that time, a court would likely dismiss the lawsuit as not yet “ripe,” meaning not ready yet for judicial review.
Elliott has one such administrative remedy under the CBA: appeal the suspension back to Goodell in accordance with Article 46. The hearing would likely involve experts, though the ultimate decision-making authority would rest with the hearing officer (also known as the arbitrator, who would be Goodell or a designate of Goodell’s choosing). Elliott has three business days to appeal and it is expected that he will do so. After an appeal is filed the NFL would then hold a hearing within 10 business days. Elliott’s suspension is currently scheduled to begin on Sept. 2, the day of final roster reductions. Until then he can continue to practice with the Cowboys and play in preseason games.
Assuming Elliott’s appeal fails, he would have the option of filing a lawsuit in federal court. The lawsuit would likely resemble those filed by Brady and Peterson. This means it would demand that a federal judge vacate the arbitration award. In this context, “award” wouldn’t be a positive word for Elliott. It would refer to Goodell’s decision as an arbitrator (as opposed to Goodell’s decision as commissioner) to uphold the six-game suspension or to reduce it but not to Elliott’s satisfaction.
In a lawsuit, Elliott would be joined by the NFLPA. He would assert that Goodell and his four experts committed grave procedural mistakes in evaluating the allegations and that, accordingly, they reached an arbitrary and capricious conclusion. A federal court reviewing a petition to vacate the arbitration award would focus on procedure, not on facts. Put another way, a federal judge would not conduct a trial on whether Elliott is innocent or guilty of Thompson’s allegations. The judge would instead evaluate the accuracy and credibility of the processes used by the NFL in assessing allegations and whether those processes comported with Article 46.
Therein lies the fundamental problem for Elliott: as a procedural instrument, Article 46 is stacked in favor of the NFL. Article 46 accords Goodell with wide discretion in evaluating evidence. In Brady’s case, Goodell’s conclusions about football air pressure were sharply criticized as flawed—some scientists even described them as implausible—and yet under Article 46, Goodell can be wrong about the facts but nonetheless comply with the law. Also, the fact that Goodell retained a panel of experts to review allegations against Elliott only strengthens the legitimacy of Goodell’s reasoning.
If Elliott’s appeal fails, expect “forum shopping” by both the NFL and Elliott
In the immediate aftermath of Goodell’s July 2015 decision to uphold Brady’s four-game suspension, the NFL rushed to file a lawsuit against Brady in the U.S District Court for the Southern District of New York. The filing, which asked for a federal judge to help to ensure that Brady would comply with a four-game suspension, caught everyone by surprise. At the same time, it made a good deal of sense. The league wanted to sue Brady in a favorable court before Brady sued the NFL in a court more favorable to him.
The NFL believed that the New York federal court would be a relatively favorable forum. It reached this assessment in light of the league’s success before the U.S. Court of Appeals for the Second Circuit, which governs New York federal courts. This was especially apparent in the NFL’s victory over Maurice Clarett’s age eligibility lawsuit in 2004 (as a disclosure I was a member of Clarett’s legal team).
Brady, meanwhile, rushed to file in the U.S. District Court for the District of Minnesota, where Judge David Doty presides. Judge Doty has ruled against the NFL on several occasions. Brady hoped that Judge Doty would be assigned as the judge (he wasn’t—Judge Richard Kyle was assigned instead).
Because the NFL knew when Goodell’s decision would be announced the league enjoyed a key tactical advantage in terms of timing. The NFL used it to beat Brady to court. Since the party that files first usually prevails on where a legal dispute is tried, it came as no surprise that the case was heard in New York. Although Brady prevailed before U.S. District Judge Richard Berman, the U.S. Court of Appeals for the Second Circuit later held against Brady on appeal.
What does all this mean for Elliott?
For one, Elliott should be prepared for the NFL to file a lawsuit in the Southern District of New York immediately after a decision on his appeal is announced. The NFL has excellent precedent there with the Second Circuit’s decision in Brady’s case.
For another, Elliott should try to identify a federal district that might prove more favorable and that is arguably more relevant than the Southern District of New York. Perhaps Elliott would sue in the U.S. District Court for the Southern District of Ohio since some of the allegations concern events that took place there. Or he might sue in the U.S. District Court for the Northern District of Texas since he is employed in Dallas. Another option: the U.S. District Court for the District of Columbia since the NFLPA is headquartered there.
The one federal court Elliott that wants to avoid: the U.S. District Court for the Southern District of New York. Unfortunately for Elliott, he might not be able to avoid it.
Timing is also relevant in this analysis. The Cowboys’ first regular season game will be played on Sept. 10. This leaves Elliott slightly less than one month to try to eradicate the pending suspension before it precludes him from playing in an actual game. If Elliott’s potential case hasn’t been resolved in court before Sept. 10, he would likely then petition a judge to issue a preliminary injunction or a temporary restraining order. If such a remedy were granted, it would essentially suspend the six-game suspension until Elliott has his day in court.
Injunctions are considered extraordinary remedies and petitions for them are usually rejected. Among other points, Elliott would need to convince a judge that he would suffer irreparable harm if he misses any games. Elliott would emphasize that he would never be able to get those games back. In response, the NFL would stress that Elliott could be reimbursed for lost wages plus interest if he later prevailed in court. As an advantage for the NFL, courts are often skeptical that a particular harm is “irreparable” if money damages can later repair it.
Elliott could also file a lawsuit in a Texas state court and hope that he would receive a more favorable forum there. After all, Texas judges are elected. Plus, Elliott could argue that the NFL has defamed him.
There are numerous obstacles with a plan for Elliott to sue in state court. One is that a defamation lawsuit is especially difficult for a public figure, who must prove “actual malice.” In this case, Elliott would need to prove that the allegations against him were false and that the NFL knew they were false. Another hurdle is that a lawsuit could bring to light unsavory evidence about the assault allegations. Such evidence could damage Elliott’s reputation and credibility, not to mention attract the notice of law enforcement. Still another hurdle is that Elliott’s case would concern issues of federal law, including federal labor law. The NFL would seek to remove the case to federal court and would probably succeed in doing so.
Could Jerry Jones sue the NFL or Goodell?
The short answer to this question is yes, Jerry Jones could sue. But being able to sue is not an especially high bar. The more relevant question is whether Jones would likely prevail in such a lawsuit. The answer is he would not.
Jones is no stranger to taking on the NFL in court. In 1995, NFL Properties—the NFL’s licensing arm—sued Jones for $300 million and he countersued for $700 million. Their billion-dollar dispute centered on whether Jones could negotiate licensing deals that directly conflicted with those of the NFL. For instance, Jones negotiated a deal for Pepsi to sponsor Texas Stadium at the same time Coca-Cola was the official soft drink of the NFL. Ultimately the two sides settled, but the larger point is that Jones didn’t back down from a fight with his own league.
Here, Jones would likely face much more resistance in court.
First, Elliott’s punishment falls under the purview of the CBA, which is an agreement between players and the league. Jones may thus lack standing to bring a lawsuit that challenges a player suspension. This is a crucial difference from Jones’s licensing lawsuit with the NFL as it dealt with owner-league issues. This difference also distinguishes Jones’s situation from that of New England Patriots owner Robert Kraft during Deflategate: while the Cowboys weren’t punished for Elliott’s alleged misconduct, the Patriots were punished as a franchise for the alleged misconduct of Brady and other Patriots employees. At least in theory, Kraft had standing to sue.
Second, the NFL Constitution—which all owners accept as a condition of owning an NFL franchise—makes clear that Goodell has final and conclusive authority over all punishments. As a result, if Jones sued the NFL or Goodell, a court would likely dismiss the lawsuit on grounds that Jones contractually accepted the outcome—Elliott’s suspension—that would serve as the basis of his lawsuit. This point also highlights a key explanation as to why Kraft declined to take on the NFL: a court would have been poised to dismiss it on grounds that Kraft contractually gave up his right to sue the league and its owners. The same logic would apply to Jones.
MMQB will keep you updated on legal developments involving Elliott and the NFL.
Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law.