- As with Tom Brady and Adrian Peterson before him, Ezekiel Elliott is taking the NFL to court over his suspension. A legal analysis of his strategy and the odds that he’ll be on the field for the Cowboys on Sept. 10
Although the odds are stacked against him, Ezekiel Elliott is taking on the NFL in court.
Late Thursday, the 22-year-old Dallas Cowboys running back joined the National Football League Players Association in filing a complaint against the NFL in the U.S. District Court for the Eastern District of Texas. Elliott demands that the court vacate an anticipated arbitration award. In this context, “award” is anything but an honor for Elliott. It refers to a forthcoming decision by NFL hearing officer Harold Henderson, who earlier this week heard testimony and reviewed evidence related to Elliott’s appeal of a six-game suspension for domestic violence. Elliott’s case has been assigned to U.S. District Judge Amos Mazzant, III. Judge Mazzant has served on the federal bench since his nomination by President Barack Obama and subsequent Senate confirmation in 2014.
Late Friday, Elliott filed a separate petition for a temporary restraining order. If granted by the court, the order would prevent the NFL from imposing the suspension, which is set to begin on Sept. 2 and which would become very meaningful on Sept. 10 when the Cowboys play their first game of the regular season. While a temporary restraining order would not constitute the kind of permanent victory that Elliott seeks, it would at least postpone his suspension until later in the 2017 season.
Accompanying Elliott’s petition on Friday is an affidavit of Cowboys general counsel Jason Cohen, whose sworn statement corroborates Elliott’s claims. Cohen also highlights that Elliott’s suspension “will cause the Cowboys irreparable harm” since “every practice and every game Mr. Elliott misses will hurt our team’s chances of having a successful season and making it to the 2017-18 NFL playoffs and hopefully the Super Bowl.” Even though the Cowboys are part of the NFL—the defendant—they are, through Cohen, nonetheless advocating for the plaintiff. The Cowboys surely hope Judge Mazzant takes that into consideration as he evaluates Elliott’s case.
Attorneys for Elliott, the NFLPA and NFL will face one another on Tuesday, Sept. 5, at 5 p.m. CDT in the Paul Brown U.S. Courthouse in Sherman, TX. They will appear before Judge Mazzant and offer competing arguments as to whether the judge should grant a temporary restraining order.
Key elements of Elliott’s lawsuit
In employing legal arguments that echo those previously raised by Tom Brady and Adrian Peterson in their unsuccessful federal lawsuits over suspensions, Elliott contends that the NFL has unlawfully applied Article 46 of the Collective Bargaining Agreement. In doing so, Elliott insists, the NFL failed to provide him with the basic elements of fundamental fairness required by law.
For Elliott to prevail in court, he must show that the process used by the NFL to judge him was badly flawed. Put differently, whether Elliott is guilty or innocent of battering his former girlfriend, Tiffany Thompson, is not the legal question. The legal question is whether the NFL adequately adhered to an agreed-upon process for reviewing Elliott’s behavior.
Elliott’s complaint follows the same construct of the Brady and Peterson cases. Even though those cases dealt with very different factual situations—slightly under-inflated footballs and corporal punishment of a child—they nonetheless centered on the same legal question: Did the NFL follow the law in investigating a player, punishing that player and, through Article 46, reviewing the merits of that player punishment?
Elliott, who like Brady and Peterson is represented by attorneys Jeffrey Kessler and David Greenspan of Winston & Strawn, describes the process used by the NFL to judge him as “one of the most fundamentally unfair arbitral processes conceivable.” In doing so, Elliott pivots from the Brady and Peterson cases to claim that he has been victimized by a “conspiracy.” In law, a conspiracy normally means an agreement between two or more people to accomplish an unlawful goal. Here, Elliot asserts, senior NFL executives hatched a “league-orchestrated conspiracy” to unlawfully hide critical information about Elliott from NFL commissioner Roger Goodell. The commissioner suspended Elliott on Aug. 11.
A key co-conspirator, Elliott charges, is NFL Senior Vice President and Special Counsel for Investigations Lisa Friel. Elliott asserts that Friel and NFL attorneys took steps to prevent Kia Roberts, the NFL’s Director of Investigations, from informing Goodell that she did not find Thompson credible and that “there was insufficient corroborating evidence of her incredible allegations to go forward with any discipline against Elliott.” Roberts is a key figure in the Elliott matter. She is the only one of the NFL’s co-lead investigators who actually interviewed Thompson—and did so six times. Roberts also co-authored the NFL’s report on Elliott, and yet her conclusions were inexplicably absent in that report.
Elliott also portrays Henderson as part of the conspiracy against him. Henderson, Elliott highlights, denied a request by the NFLPA for Thompson to testify. As a result, Elliot had no opportunity to confront his accuser. According to Elliott, Henderson also denied Elliott an opportunity to review the NFL’s investigative notes, which include league officials’ impressions of Thompson and her allegations. It was thus more difficult, and perhaps fundamentally unfair, for Elliott to wage a defense if he couldn’t read what the NFL thought of his accuser.
Elliott’s complaint is careful not to tread in areas that a court might construe as impermissible. To that end, the complaint stresses, “the NFLPA and Elliott do not seek in this Petition for the Court to make its own determinations about Elliott’s or Thompson’s credibility, or any other matter of fact-finding properly left to the arbitrator.” This language is critical because the law accords arbitrators wide deference in determining the factual record and in reaching conclusions based on that record.
Mindful of that point, the complaint describes Elliott’s argument as one about a process that allegedly prevented Goodell from hearing credible evidence. As the complaint portrays it, Goodell was left to render a decision based merely on “he-said/she-said” allegations of domestic violence when better evidence—including Roberts’ recommendation and investigative notes of six interviews with Thompson—existed. “Presumably,” the complaint asserts, “the Commissioner would have reached a very different disciplinary conclusion—one of exoneration and no discipline—had he known about the evidence which Friel and other unidentified, high-ranking NFL Executives chose to conceal from the disciplinary process.”
Key elements of Elliott’s accompanying petition for a temporary restraining order and related role of the commissioner’s “exempt list”
As mentioned above, Elliott also filed a petition for a temporary restraining order (TRO). The purpose of a TRO would be to ensure that Elliott remain eligible to play games for the Cowboys until the court resolves the question of whether it should vacate Henderson’s pending arbitration award. The court’s review of the arbitration award could take several weeks, and possibly months—meaning a temporary restraining order could ensure that Elliott is available for the start of the 2017 regular season and perhaps well into the season.
Unfortunately for Elliott, courts usually reject TRO petitions. In law, TROs are regarded as “extraordinary” forms of relief. A petitioner for a TRO (here Elliott) must demonstrate four prerequisites: (i) a substantial likelihood of success on the merits; (ii) a substantial threat of immediate and irreparable harm for which it has no adequate remedy at law; (iii) that greater injury will result from denying the temporary restraining order than from its being granted; and (iv) that a temporary restraining order will not disserve the public interest.
Each of these elements is difficult to show. As explained more fully below, the law likely favors the NFL on whether Judge Mazzant should vacate Henderson’s award. If Judge Mazzant reaches that conclusion, then Elliott’s petition for a TRO must fail since he wouldn’t have shown a substantial likelihood of success on the merits.
Even if Judge Mazzant believes that Elliott has a substantial likelihood of success on the merits, the judge may nonetheless refuse to grant a TRO on grounds that Elliott’s injury wouldn’t be irreparable. Usually judges find that a particular harm isn’t irreparable if monetary damages can later cure it. The NFL will contend that it would reimburse Elliott for any lost wages if Judge Mazzant later vacates Henderson’s arbitration award. Elliott will have to convince the judge that monetary damages for missed games wouldn’t cure other manifestations of harm from a suspension, such as interference with his development as an NFL player, his accumulation of career statistics and the reputational stigma—and accompanying damage to endorsement opportunities—attached to a player when suspended for domestic violence.
Interestingly, even if Elliott obtains a TRO, it’s possible the NFL could counter by placing him on the commissioner’s “exempt list.” This list is detailed in the NFL Player Personnel Policy Manual and allows the commissioner to prevent a player from playing while his team still pays him. This type of sanction is similar to administrative leave in most workplaces, where the employee is on a paid suspension. Peterson was placed on the exempt list during his legal battle with the NFL.
Expect attorneys for Elliott and the NFLPA to contend that placing Elliott on the exempt list would violate the spirit, if not the letter, of a TRO. After all, Elliott would still be “harmed” by the suspension of his NFL career, loss of player statistics that would have been amassed in exempted games, and denial of playing in games that will never be played again.
In other words, if the NFL places Elliott on the exempt list, expect a separate but related legal battle.
Significance of Elliott suing before Henderson rules, and of suing in Texas
Elliott may have caught the NFL off guard in filing a lawsuit before Henderson issues a ruling—and the legal playbook for that move may have come directly from the NFL.
Elliott filed his lawsuit in the U.S. District Court for the Eastern District of Texas. He no doubt hopes that the litigation will play out there instead of the NFL’s preferred forum, the U.S. District for the Southern District of New York. If the litigation occurs in the Southern District of New York, Elliott would struggle to overcome the precedent of the NFL’s 2016 victory over Tom Brady in the U.S. Court of Appeals for the Second Circuit, which governs the Southern District of New York. By instead filing in the Eastern District of Texas, Brady’s case is not binding authority. It is only persuasive authority.
Elliott’s lawyers no doubt recall July 28, 2015. On that date Goodell upheld Brady’s four-game suspension and then shocked everyone by immediately suing Brady in the Southern District of New York. The NFL, which claimed that it needed a federal judge to help ensure Brady would comply with the suspension, sued there because of favorable precedent—the NFL’s victory in Maurice Clarett’s age eligibility lawsuit in 2004 (as a disclosure, I was a member of Clarett’s legal team) before the U.S. Court of Appeals for the Second Circuit. The NFL sued Brady before Brady could sue the NFL in a more favorable forum for him—the U.S. District Court for the District of Minnesota, where Judge David Doty presides and often rules in favor of players. To be clear, both the NFL and Brady were engaged in strategic “forum shopping.” And in the law, the side that sues first normally has the case heard in its chosen forum.
The Eastern District of Texas is not necessarily a winning forum for Elliott. The U.S. Court of Appeals for the Fifth Circuit governs this Texas court, and the Fifth Circuit is widely viewed as a favorable forum for management and business. It is normally not seen as “employee-friendly” which is the kind of moniker that would favor Elliott.
But two points: First, if Judge Mazzant proves to be a favorable district court judge for Elliott—just as U.S. District Judge Richard Berman proved to be a favorable district court judge for Brady—Elliott may gain a temporary victory that allows him to play at the start of 2017 season or perhaps all of it. The NFL would obviously appeal decisions by Judge Mazzant that favor Elliott to the Fifth Circuit, but that could take months to play out.
Second, Elliott would almost certainly lose in the Southern District of New York, where a judge would be obligated to follow the Brady decision. The Brady decision ensures that the hearing officer for an Article 46 appeal can be wrong about the facts and still issue a valid arbitration award. The Brady decision also conveys that unless Article 46 guarantees a player a particular process right, no such right exists. A plain reading of Article 46 doesn’t expressly state what Elliott contends are required for fundamental fairness. At least Elliott has a plausible chance in the Eastern District of Texas.
Likely legal arguments by the NFL in response
Every case has at least two sides. Unfortunately for Elliott, the NFL is no doubt extremely confident it will prevail over him.
Most immediately, the NFL will contend that Elliott’s lawsuit is not yet “ripe,” which refers to appropriate for judicial review. Until Henderson rules on Elliott’s appeal, Elliott hasn’t yet exhausted his remedies under the CBA. Courts typically refuse to hear legal arguments when a plaintiff hasn’t yet exhausted the possibility of private forms of remedies, including those found in a contract like a CBA.
Along those lines, the NFL will likely contend that Elliott’s case is preempted by the CBA and Elliot’s player contract since, as a member of the NFLPA, Elliott contractually agrees to arbitrate his grievances before going to court. Until Henderson rules, preemption is a valid argument for the NFL.
The NFL will also attempt to change the forum of the case. As explained above, the NFL would prefer to litigate Elliott’s case in the Southern District of New York. In that forum, the Brady decision would be controlling precedent. As detailed above, the Brady decision would advantage the NFL in defending against Elliott’s claims. To that end, the NFL will likely file a petition in the Eastern District of Texas for a change of venue to the Southern District of New York. In doing so the league would contend that the Southern District of New York has a stronger nexus to the case since the league is headquartered there and Elliott’s appeal was heard there.
Beyond those procedural steps, the NFL will also categorically reject the substance of Elliott’s arguments. The NFL’s core argument will be that Elliott—just like Brady and Peterson before him—demands process rights that his union failed to negotiate in the CBA.
For instance, the NFL will stress that there is no contractual requirement that Goodell hear the recommendation of the investigator. While it would seem like a “smart” and “fair” thing for Goodell to have heard from Thompson, or at least read her comments, the NFL will stress that Elliott had no right that Goodell must hear from Thompson. Likewise, Henderson was under no express obligation to call Thompson as a witness (not to mention that Henderson has no subpoena power and so he couldn’t compel Thompson to testify). Plus, as Brady knows all too well from Deflategate, the NFL was under no express obligation to share its investigative notes with Elliott.
Further, the league will cast light on the fact that Goodell reviewed the matter in consultation with 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) and that Goodell—and later Henderson—considered witness statements and medical records related to Thompson’s allegation that Elliott beat her on multiple occasions in Columbus, Ohio, during the week of July 16, 2016.
Will Elliott succeed in obtaining what Brady and Peterson failed to obtain? The odds aren’t good. But every case and every court is different. We’ll soon find out if those variables advantage Elliott or prove inconsequential.
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.