Next Tuesday Dallas Cowboys running back Ezekiel Elliott will appear before hearing officer Harold Henderson. Elliott will face an unenviable task: convincing the NFL’s former executive vice president for labor relations that his old boss, NFL commissioner Roger Goodell, got it wrong in suspending Elliott for six games.
The suspension reflects allegations made by Elliott’s former girlfriend, Tiffany Thompson, who insists that the 22-year-old Elliott beat her on multiple occasions in Columbus, Ohio, during the week of July 16, 2016. Goodell, along with 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), weighed witness statements, medical records and other evidence in concluding that Elliott violated Article 46 of the CBA. Article 46 forbids “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” The length of Elliott’s suspension follows the league’s domestic violence policy. The domestic violence policy is a league interpretation of Article 46 and calls for a six-game suspension as a first-time punishment for domestic violence.
Elliott, who received Pro Football Weekly/Pro Football Writers of America 2016 Rookie of the Year Award, steadfastly maintains his innocence. Among other points, Elliott highlights that he has not been charged with a crime—let alone convicted of one—and that text messages and witness affidavits raise serious questions about Thompson’s motivations and truthfulness.
Here are 8 key questions and answers heading into the appeal.
1) Will Henderson be fair or is the hearing just for show?
Henderson will likely be fair and the hearing is the real deal: It reflects a collectively bargained right for Elliott and the NFLPA.
Henderson will have three choices in regard to Elliott’s suspension: uphold, reduce or vacate. If Henderson upholds the suspension, Elliott will miss the first six games of the 2017 regular season. Alternatively, Henderson could reduce the suspension, perhaps to four games. In a best-case scenario for Elliott, Henderson could vacate the suspension altogether.
Henderson is well known and respected among league and team officials, as well as with persons connected to the NFLPA. In 1991, Henderson became the highest-ranking black executive in the history of the NFL. Then-commissioner Paul Tagliabue hired Henderson, who at the time was 48 years old, as executive vice president for labor relations. Henderson would serve other roles for the NFL, including as chairman of the NFL’s management council executive committee and as a hearing officer for dozens of player appeals concerning personal conduct and drug issues. Prior to joining the NFL, the Harvard Law School grad served as vice president and general counsel for Amtrak. Earlier in his distinguished legal career, Henderson was a labor attorney at the prestigious law firm Morgan, Lewis & Bockius.
While Henderson is deeply experienced in NFL labor matters and is unquestionably qualified to hear Elliott’s appeal, he is hardly the kind of “neutral” arbitrator the NFLPA would prefer hear the appeal. Henderson is a former NFL executive who has close ties to Goodell as well as to other league executives and owners. His views over the years have been through the eyes of someone who is on the opposite side of employees. In colloquial labor terms, Henderson is “management.”
Had Goodell retained a more independent figure like retired federal Judge Barbara Jones, whom Goodell hired to hear Ray Rice’s appeal and who later ruled for Rice, Elliott would probably be more optimistic about his chances. But under Article 46, it’s entirely Goodell’s call on whether he hears a player’s appeal or, if Goodell delegates that duty, the identity of the hearing officer who would preside.
Elliott shouldn’t be entirely discouraged by Goodell’s selection of Henderson. For starters, Goodell could have selected himself, thereby creating a less-than-objective dynamic where Goodell would review his own reasoning. Elliott could look no further than Tom Brady’s experience with Goodell serving as the fact-finder, punisher and hearing officer to know that he probably has a better shot with Henderson than with Goodell. Along those lines, there’s a reason why trial judges and appellate judges are different persons: fairness requires it.
Henderson has also shown a willingness to reduce suspensions. Most notably, in July 2015, Henderson lowered Greg Hardy’s 10-game suspension for violating the personal conduct policy to four games. In doing so, Henderson indirectly criticized Goodell for imposing a suspension that was “simply too much” in light of other punishments. Perhaps Elliott and his attorneys will incorporate that line of reasoning. They could highlight to Henderson that Goodell only suspended New York Giants kicker Josh Brown for one game in 2016 despite his admission to abusing his wife.
2) Will Henderson rule on Elliott’s appeal by Sept. 2 or by Sept. 10?
Elliott’s hearing is scheduled for Tuesday, Aug. 29. There are two important dates that follow: Saturday, Sept. 2, the day when Elliott’s suspension is set to begin, and Sunday, Sept. 10, the day when the Cowboys play the Giants in their first regular season game.
As explained more fully below, Elliott’s relationship with the Cowboys and by extension his development as an NFL player would be impacted if the suspension commences on Sept. 2. Sept. 10, however, is probably a more important date for both Elliott and the Cowboys. After all, Elliott’s availability against the Giants would influence the Cowboys’ chances in an intra-division game that very much counts. Plus, while Elliott missing practices between Sept. 2 and Sept. 10 would be far from ideal, a player of Elliott’s talents would likely not miss a beat if he were eligible to play on Sept. 10.
It’s possible that Henderson will issue a ruling on Elliott’s appeal by Sept. 2, but four days would be a very fast turnaround. Henderson’s ruling will be in the form of a carefully crafted arbitration award. The ruling will probably be in the ballpark of 3,000 or 4,000 words. It won’t be a simple “grievance denied” or “grievance sustained”—it will feature extensive discussion of the evidence, testimony and competing arguments. Henderson will be aware that his ruling would be a critical document in any legal challenge by Elliott. He will thus choose his words wisely.
Henderson seems very likely to be able to rule on Elliott’s appeal by Sept. 10, which is 12 days from the hearing. A dozen days is enough time for Henderson, a seasoned attorney, to make up his mind and draft a sensible opinion.
12 days would also be compatible with the timelines of previous appeals heard by Henderson. For example, in Dec. 2014, Henderson took eight days following Adrian Peterson’s appeal to draft an order that upheld Peterson’s suspension.
However, Henderson has taken much longer in other appeals. On May 28, 2015, Henderson presided over Hardy’s appeal hearing. Henderson issued his order reducing Hardy’s suspension 43 days later, on July 10. Notice that Hardy’s appeal was heard in the off-season. A wait of 43 days in May, June and July is much less impactful on a player’s career than would be the same length of time in August and September.
Henderson is no doubt aware of timing. My instinct is that he will try his best to issue an opinion by Sept. 1, but his capacity to do so depends on numerous factors, including whether Elliott presents new evidence in his appeal hearing and thus complicates the analysis.
3) How would Elliott’s employment with the Cowboys change if his suspension begins on Sept. 2?
At its core, an NFL suspension separates a player from his team. Assuming that Elliott’s suspension starts, he would be barred from appearing at any Cowboys’ functions, including practices and games. This means Elliott wouldn’t be able to attend practices let alone participate in them. He would also be forbidden from attending press conferences and other team events, even as a mere spectator.
Further, Elliott would be required to cut off contact with any Cowboys coaches or staff. He couldn’t text ideas to Jason Garrett, Skype into coaches’ discussions of new plays or use messaging on social media platforms to advocate for different strategies.
Similarly, Elliott wouldn’t be able to workout with Dak Prescott and Cowboys offensive linemen. Any kind of football practice session, irrespective of its location, would be a no-go assuming it involved Elliott and any of his teammates.
Elliott could, however, work out with other football players who aren’t on NFL teams, such as former Cowboys teammates who are free agents or former teammates from Ohio State. While serving his Deflategate suspension, Tom Brady practiced with former Patriots wide receiver Wes Welker.
If Elliott violated the terms of his suspension, he would be subject to an elongation of his suspension to include additional games.
4) Can Elliott obtain a court injunction if Henderson hasn’t ruled by Sept. 2 or Sept. 10?
As described above, Elliott’s employment with the Cowboys would change if and when his suspension takes effect. He would suffer an additional “harm” once denied a chance to play in a regular season game.
Elliott, however, would face long odds if he tried to convince a court to suspend his suspension before Henderson has ruled.
The main legal hurdle for Elliott is that, as a member of the NFLPA, he is governed by the collective bargaining agreement. Article 46 of the CBA outlines his (and every player’s) various rights and obligations in the event of punishment for conduct detrimental to the NFL. Crucially, Article 46 does not guarantee Elliott a ruling on his appeal before any particular date. Instead, the hearing officer must only make a decision “as soon as practicable.”
Further, courts seem unwilling to recognize what might be considered “unstated” rights into Article 46. Both Brady and Peterson ran into that problem: they sought protections that federal judges stressed were not actually expressed in Article 46. Those judges refused to recognize rights that the NFLPA did not obtain in collective bargaining since, at least in theory, doing so might open the door for other players to seek additional rights that aren’t mentioned in the CBA. Elliott would probably face the same fate: a judge would likely reason that a petition for an injunction wouldn’t yet be “ripe” in that Elliott hadn’t yet exhausted his internal (Article 46) remedy.
Even if a judge were willing to “read” an unstated process right into Article 46, Elliott would still face additional hurdles in trying to obtain a temporary restraining order or a preliminary injunction. Elliott would need to show, among other things, that he would suffer “irreparable harm” unless a judge intervenes. Elliott would contend that his separation from his team for any length of time would damage his relationship with the Cowboys’ coaching staff and limit his growth as a professional football player. He would also stress that a missed game (obviously) can’t be replayed and thus his absence from such a game—in which he would amass various player statistics and help his team—can’t be repaired. From that lens, the harm would, in fact, be “irreparable” in that no subsequent remedy could fix it.
The problem for Elliott in arguing irreparable harm is that money damages—lost wages plus interest—would financially repair him if a court later found that the NFL broke the law in either suspending him or not approving his appeal. While he would never get back the games he missed in a historical or records sense, the NFL could still reimburse him as if he had played in them.
Elliott would also have to show a high likelihood of success in order to obtain injunctive relief. The reality is that while he would have a chance of success, it almost certainly wouldn’t be a likely one. There’s a reason why petitions for injunctive relief normally fail: the legal standard for obtaining them is high. If Elliott sought one, the attempt would probably fail too.
5) But what about Tom Brady—didn’t Brady get his four-game suspension pushed back a year? Why can’t Elliott try the same thing?
The legal situations of Brady and Elliott are different in a variety of ways and as a result, Elliott will need to rely on a different legal playbook.
One obvious difference is that Brady was alleged to have participated in a supposed, albeit scientifically doubted, scheme to slightly underinflate footballs—in other words, an equipment controversy—whereas Elliott’s situation is far more disturbing in that it involves alleged domestic violence. Because it is an alleged domestic violence matter, Elliott’s situation falls under the league’s domestic violence policy, which, as noted above, is an official league interpretation of Article 46. In contrast, the NFL’s logic for Brady’s suspension appeared to change over time, a point that attracted sharp criticism from U.S. District Judge Richard Berman in his ruling for Brady and from U.S. Court of Appeals for the Second Circuit Chief Judge Robert A. Katzmann in his dissenting opinion for Brady.
An even more significant difference between Brady and Elliott’s legal situations concerns timing and relevant legal arguments.
Goodell ruled against Brady’s appeal on July 28, 2015—about six weeks before the 2015 regular season would start. With relatively ample time, Brady did not seek an emergency injunction from a court. Consequently, Brady wasn’t required to show irreparable harm or prove other difficult-to-show prongs normally required for an injunction. Brady instead asked a federal judge to vacate Goodell’s arbitration award, a legal process that involves different arguments and invokes different federal laws. That request ultimately led to Judge Berman holding multiple hearings in his New York federal courtroom during August 2015.
Elliott doesn’t have the same luxury of time. His appeal won’t be heard, let alone decided, until 12 days before the 2017 regular season begins. If Henderson doesn’t rule before Sept. 2 or Sept. 10, Elliott would need an injunction in order to get back on the field. A petition for an arbitration award would do Elliott no good at that point: Elliott can’t seek to have a court vacate an arbitration award before the award is even issued.
6) O.K., let’s change the situation. Let’s assume Henderson rules against Elliott. Can Elliott then try Brady’s strategy and sue the NFL?
The legal complexion of Elliott’s pending suspension will change once Henderson issues a decision. At that point, Elliott will have exhausted his potential remedies under the CBA and a legal challenge would no longer be considered “not yet ripe.”
That’s the good news for Elliott.
The bad news is that the legal process would still be stacked against him.
For starters, the NFL could try to employ the same tactic used in Brady’s case: file a lawsuit against Elliott before Elliott files a lawsuit against the NFL. The NFL would ask a court to issue an order directing Elliott to comply with the terms of the suspension, while Elliott would ask a court—most likely a different court—to vacate Henderson’s arbitration award. In doing so, both sides would try to “game” the system in seeking a favorable jurisdiction.
The NFL would prefer to litigate against Elliott in the U.S. District Court for the Southern District of New York, as that court is obligated to follow the prior rulings of the U.S. Court of Appeals for the Second Circuit. The Second Circuit ruled in favor of the NFL against Tom Brady in 2016 and, less relevant to Elliott’s possible case, in favor of the NFL against Maurice Clarett’s age eligibility lawsuit in 2004.
For his part, Elliott would prefer to litigate anywhere but in the Second Circuit. Perhaps Elliott would—like Brady—file in the U.S. District Court for the District of Minnesota. In that court sits 88-year-old Judge David Doty, who has issued opinions against the NFL. Then again, Peterson lost before the U.S. Court of Appeals for the Eighth Circuit, and the Eighth Circuit governs that Minnesota court.
Elliott might instead try the U.S. District Court for the District of Columbia, which is governed by the U.S. Court of Appeals for the District of Columbia, a federal court that is not obligated to follow the Brady and Peterson decisions. Elliott could also file in the U.S. District Court for the Northern District of Texas. Then again, the U.S. Court of Appeals for the Fifth Circuit governs that Texas court and the Fifth Circuit is typically not considered a favorable court for employees/labor.
Whichever side gets to court first will be poised to win the first “battle”, since the jurisdiction where the claim is first filed typically hears that claim.
In the Brady matter, the NFL enjoyed a tactical advantage since Goodell served as the hearing officer and thus league officials knew the timing of when Goodell would uphold his suspension of Brady. But with Elliott, Henderson, not Goodell, is serving as the hearing officer. If he notifies the NFL and NFLPA at the same time, neither side should have a timing edge. Whichever side hustles to court first will probably prevail on which court hears the case.
Even if Elliott wins on which court hears a case, he would still face the realities of the law. Article 46 provides Goodell with considerable latitude to determine if a player has engaged in “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” If Goodell reaches such a determination, Goodell can then determine whether to take no action, warn, fine, suspend or even expel the player.
The fact that Elliott hasn’t been charged with a crime doesn’t preclude Goodell from finding Elliott at fault. Article 46 doesn’t condition that the commissioner can find a player at fault only if the player has been charged with a crime. Article 46 also doesn’t mention a requirement that probable cause must be evident. Instead, Goodell can decide, as he sees fit, whether a player has engaged in misconduct.
7) Why are you ignoring the evidence that raises questions about Thompson?
I’m not ignoring that evidence, but that evidence did not compel Goodell to pass on punishing Elliott. It also doesn’t compel Henderson to now vacate Elliott’s suspension.
To be sure, there are important questions about the accuracy of Thompson’s account as well as her motivations. Last week, for example, Charles Robinson of Yahoo! Sportsdetailed a text exchange between Thompson and a friend in which Thompson seemingly concurs with the friend’s idea that Elliott could be blackmailed. The exchange is contained in the NFL’s report on Elliott, a report that also mentions Thompson registering an email address titled “ezekielelliott sex vids.” Such a registration furthers the suspicion that Thompson hoped to extract money from Elliott in exchange for her cooperation. Those issues have probably played a role in law enforcement officers declining, thus far at least, to charge Elliott with a crime.
Goodell, however, had other evidence from which to draw, including photographs and forensic evidence linked to Thompson’s injuries. As is his right under Article 46, Goodell placed weight in the fact that he believed Thompson more than he believed Elliott. Lastly, Goodell relied on expert analysis, a point that substantiates Goodell’s reasoning.
8) In light of the above, what is Elliott’s best strategy for his appeal hearing?
Some have speculated that Elliott might be saving powerful new evidence. That is hard to believe. For one, the best time to bring exculpatory evidence is before someone is found at fault and punished, not after. For another, law enforcement and the NFL investigated Elliott for months. If a so-called “smoking gun” exists, it probably would have turned up already.
In my view, Elliott’s primary goal in his hearing should be to convince Henderson to reduce the suspension. Henderson has shown he is willing to significantly reduce suspensions.
How does Elliott go about convincing Henderson?
There are at least two lines of reasoning and they complement one another.
First, Elliott should show contrition. Even if he did not commit a crime, he should apologize for not using better judgment. Elliott should stress that while he maintains his innocence in a legal sense, he realizes that he needs to display more maturity and become the kind of man that others would respect. In that same vein, Elliott should acknowledge that his behavior has damaged the image of the league, the Cowboys and himself. He would likely do himself wonders if he commits to seeking advice from older teammates who have lived admirable lives.
Second, Elliott should highlight the inconsistency in the NFL’s treatment of Josh Brown. As mentioned above, Brown received a one-game suspension despite admitting to domestic violence. Elliott could stress that a six-game suspension is simply excessive in light of the Brown punishment. Underscoring inconsistent past punishments worked for Greg Hardy in convincing Henderson to lower Hardy’s suspension from 10 games to four.
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.