• On Monday evening, the NFL filed two legal briefs, one to deny Ezekiel Elliott's motion for a temporary restraining order, and the other to dismiss his lawsuit. SI's Michael McCann breaks down what this could mean for the Cowboys' running back—and why this relates to Tom Brady's case last year.
By Michael McCann
September 05, 2017

Drawing on its 2016 legal victory over Tom Brady, the NFL late Monday asked U.S. District Judge Amos Mazzant, III, to deny Dallas Cowboys running back Ezekiel Elliott’s motion for a temporary restraining order (TRO) and to dismiss Elliott’s accompanying lawsuit. Elliott’s motion for a TRO was filed in the U.S. District Court for the Eastern District of Texas last Friday, a day after Elliott—suspended for the first six games of the season by NFL commissioner Roger Goodell—filed a lawsuit demanding that the court vacate an anticipated arbitration award.

The pending “award” is in the hands of NFL hearing officer Harold Henderson. Last week, Henderson, the former NFL executive vice president for labor relations, functioned as an arbitrator in reviewing testimony and evidence connected to Tiffany Thompson’s domestic violence claims against Elliott. Henderson is expected to soon issue a decision that will sustain, reduce or vacate Elliott’s suspension.

Crucially, there is no set day by which Henderson must rule. The collective bargaining agreement between the NFL and NFLPA doesn’t stipulate such a timeline. Henderson’s record is mixed as to how long it takes him to rule. In 2014, Henderson took eight days to review Adrian Peterson’s appeal, but a year later Henderson took 43 days to review Greg Hardy’s appeal.

In a response filing by Dallas attorney Thomas Melsheimer of Winston & Strawn on behalf of the NFLPA on Tuesday, Melsheimer states that Henderson is expected to rule by the end of Tuesday.

For his part, Elliott is set to miss the Cowboys first game of the season, which will be played on Sunday, Sept. 10.

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Analyzing the NFL’s legal arguments

The NFL filed two legal briefs in support of their motions Monday night and the briefs are co-authored by a group of attorneys. Dallas attorney Eric Gambrell of the law firm Akin Gump is listed as the lead attorney on both briefs.

On behalf of the NFL and other members of the league’s legal team, Gambrell stresses three basic points.

First, Elliott’s legal claim appears to be not yet “ripe” for judicial review. Courts usually decline to review legal controversies when the plaintiff has not yet exhausted contractual and other private remedies. As a member of the NFLPA, Elliott is bound by the CBA. Article 46 of the CBA dictates that in order for a player to challenge a suspension, the player must appeal to the commissioner who, in turn, can review the appeal as an arbitrator (as Goodell did with Brady) or delegate that function to someone else (as Goodell has done here by appointing Henderson). Until Henderson rules on Elliott’s appeal, Elliott has not yet exhausted the requirements of Article 46. Therefore, the NFL maintains, Judge Mazzant does not yet have a legal controversy to review.

In the NFLPA reply brief filed on Tuesday afternoon, Melsheimer argues that the NFL’s ripeness argument fails because, in the NFLPA’s view, the arbitration process has already harmed Elliott. Indeed, whether Henderson sustains, reduces or vacates the suspension, “no aspect of [Elliott’s] arguments about the unfairness of the proceedings hinge on the outcome of the Award.” Further, Melsheimer highlights that Elliott has no hearings remaining with the NFL.

Second, Gambrell invokes the Norris-LaGuardia Act of 1932 to politely remind Judge Mazzant that, as a federal judge, he is “expressly prohibited” from issuing an injunction in an on-going labor dispute. Such a dispute, Gambrell charges, includes “any controversy concerning terms or conditions of employment.” Elliott has disputed the conditions of his employment, as those conditions will change dramatically while suspended. If the Norris-LaGuardia Act sounds familiar it is because the NFL effectively cited this law as a means of defeating a legal challenge by Brady and nine other NFL players during the 2011 lockout.

The NFLPA rejects such a theory. Melsheimer contends that Judge Mazzant has an obligation under a separate federal law, the Labor Management Relations Act, to resolve a dispute pursuant to a CBA.

Third, Gambrell insists that the substance of Elliott’s legal case is flawed and cannot prevail. Gambrell highlights this assertion while arguing that Elliott fails to show any of the four prerequisites for a TRO: (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.

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To build out that theme, Gambrell stresses that federal courts are obligated under the law to provide high deference to arbitrators. Along those lines, Gambrell cites the Brady decision from last year. To be clear, the Brady decision is not binding on Judge Mazzant. The U.S. Court of Appeals for the Second Circuit, which does not govern Judge Mazzant’s court, ruled on Brady. Nonetheless, the Brady decision is persuasive authority. It is also on-point since even though scientists rejected Goodell’s conclusions about Brady’s alleged involvement in a supposed football underinflation scheme, the Second Circuit reasoned that it was well within the broad authority of Goodell, while acting as the arbitrator, to determine facts as he saw fit. Gambrell also references other cases which dictate that so long as “the arbitrator acted within the ambit of his authority, the arbitrator’s construction and award must be affirmed no matter how ‘good, bad, or ugly.’”

The low bar by which federal courts are expected to review arbitrators is important for the NFL given the apparent deficiencies in its investigation, punishment and review of Elliott. Elliott charges that league officials have conspired against him, including by disallowing Kia Roberts, the NFL’s Director of Investigations and the only co-league investigator who interviewed Thompson, to relay her doubts about Thompson’s believability to Goodell.

From the NFL’s vantage point, neither Goodell nor Henderson was contractually required to speak with Roberts—even if, as Peter King explained on Monday, common sense and sound judgment suggest that is exactly what should have happened. Indeed, according to Article 46, the decision to suspend Elliott rested with one person and one person only: Roger Goodell. As Gambrell stresses, such an arrangement should come as no surprise to Elliott. The NFL and NFLPA “agreed in the CBA that only the Commissioner has authority to decide whether a violation has occurred. Nothing in the CBA requires the Commissioner (or, for that matter, the Arbitrator) to defer to the opinion of a member of his staff, particularly after he has received additional evidence and other expert opinions.” Along those lines, Gambrell quotes the Brady decision. In it, Judge Barrington Parker wrote that there “simply is no fundamental unfairness in affording the parties precisely what they agreed on.”

Put another way, if Elliott is upset about Goodell not heeding Roberts’ recommendation, Gambrell urges Elliott to blame his union for agreeing to Article 46. It is that portion of the CBA which precisely empowers Goodell to make decisions as he sees fit.

Also, Gambrell portrays Elliott’s narrative of Goodell not knowing about Roberts’ concerns as simply untrue. “All of the evidence underlying Roberts’ concerns,” Gambrell writes, “was specifically included in the investigative report and the Commissioner was specifically informed of Roberts’ concerns.”

Gambrell also quotes the Brady decision to counter Elliott’s claim that the NFL should have compelled Thompson to testify or at least turn over its investigative notes on Thompson. Common sense would suggest that should have happened. After all, how can Elliott adequately defend himself if he can’t confront his accuser or review the NFL’s impressions of her?

Common sense, however, isn’t the law.

This identical issue proved critical in Deflategate, as both Brady and the New England Patriots strenuously objected to the NFL not making co-lead “independent” investigator (and NFL general counsel) Jeffrey Pash available as a witness and refusing to make scientific findings available for review and scrutiny.

The legal problem for Elliott and Brady before him is that Article 46 simply doesn’t require the NFL to make any specific witnesses available or share any specific types of notes.

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In the Brady decision, Judge Parker held that it is not fundamentally unfair to deny a player the right to confront a witness or access to investigative notes when the union agreed to such an arrangement. “Had the [NFLPA and NFL] wished to allow for more expansive discovery, they could have bargained for that right,” Judge Parker wrote at the time. “[T]here is simply no fundamental unfairness in affording the parties precisely what they agreed on.”

Further, Gambrell rebuts Elliott’s claim that he will suffer irreparable harm if forced to serve the suspension. In doing so, Gambrell smartly quotes a 2016 decision by Judge Mazzant, who wrote that, “harm is irreparable where there is no adequate remedy at law, such as monetary damages.” If Elliott eventually wins his lawsuit, the league would simply reimburse him for missed game checks.

Likewise, Gambrell rejects Elliott’s contention that a suspension will damage his reputation by turning the facts back on Elliott. “To the extent Elliott has suffered reputational harm,” Grambell reasons, “that harm is due to his own actions, including the well-publicized actions that led Thompson to call the Columbus Police Department.”

Gambrell is similarly dismissive of Elliott being able to show that “the balance of hardships and public interest favor entry of a temporary restraining order.” On behalf of the league, Gambrell insists that Judge Mazzant granting a TRO would disturb a labor agreement between the NFL and Elliott’s union. The CBA reflects a series of difficult tradeoffs by management and union. For a court to read new process rights into the agreement could incentivize both sides to use the courts to effectively re-write unfavorable portions of the CBA. At least that’s what Gambrell wants Judge Mazzant to conclude.

Lastly, Gambrell opines that if there is a public interest in Elliott playing in the first six games, it “hardly outweighs the public’s interest in the prevention of domestic violence and violence against women.”

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On to court

The parties head to the Paul Brown U.S. Courthouse in Sherman, TX, on Tuesday for a hearing before Judge Mazzant at 5 p.m. CDT. Although only the attorneys will address Judge Mazzant today, ESPN’s Adam Schefter reports that Elliott will attend the hearing in support.

Until Henderson rules, the relevant legal controversy is probably not yet ripe. If Henderson has not issued his decision by the time of the hearing, Judge Mazzant would be poised to ask the parties to re-schedule the hearing until after Henderson has ruled. Alternatively, Judge Mazzant could simply deny Elliot’s motion without prejudice and instruct him to re-file after Henderson rules.

As noted above, the CBA does not require that Henderson rule by any particular date. That said, Melsheimer contends that Henderson will rule by the end of Tuesday. If he doesn’t, this controversy may continue to play out over the days ahead.

Whenever Henderson does rule, it is worth noting that Elliott faces a challenging task in trying to persuade Judge Mazzant that he should grant a TRO. A TRO is considered an “extraordinary” form of relief for a reason: petitions for them are usually denied. Neither the CBA nor NFL case precedent helps Elliott. There’s no getting around the fact that Article 46 is worded favorably for the NFL. The NFL also scored a major victory in defeating Brady in a case that has parallels in regards to procedure.

Then again, predicting how a judge will rule can be a fool’s errand. If player discipline is Goodell’s call, the law as it relates to Elliott’s suspension is Judge Mazzant’s call. We’ll soon see how he decides.

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.