Ezekiel Elliott will play against the Giants on Sunday, but the Cowboys’ running back is still looking at a six-game suspension for violating the league's personal conduct policy—and, potentially, a lengthy legal battle
On Tuesday evening, the Ezekiel Elliott saga simultaneously moved forward on three fronts. Around 7:15 p.m. Dallas time, arbitrator Harold Henderson upheld the league's six-game suspension of the Cowboys' running back for violating the league's personal conduct policy. At the same time, Elliott was at the Paul Brown Federal Building United States Courthouse, seeking a temporary restraining order against the ban that would allow him to play while he and the NFLPA appeal the suspension through the courts (Albert Breer has more details on the fight to come). A ruling on that so-called TRO is now expected Friday. No matter the result, Elliott will play Sunday night against the Giants, as the NFL decided it was unfair to finalize the suspension only a few days before kickoff. Then, late Tuesday in New York, the NFL sued the NFLPA in federal court, hoping to move the case there and benefit from the Tom Brady decision. Got it?
For further clarification, I reached out to SI/The MMQB legal analyst Michael McCann, whose work on this case (and others) is essential reading. Here are three things you should know right now about the case.
FELDMAN: So, what are the next steps in this process if Elliott's TRO request is accepted? And if it's rejected?
MCCANN: If Judge Amos Mazzant grants Elliott’s petition for a TRO, the NFL would be barred from imposing its suspension on Elliott until the order expires. The duration of the order would be set by Judge Mazzant, but would likely be 14 days. During the duration of the TRO, Elliott would be eligible to play for the Cowboys (unless Goodell places Elliott on the exempt list—see below).
Over the next couple of weeks, Judge Mazzant would likely hold another hearing on whether to grant a preliminary injunction, which, if granted, would be a more lasting restraint against the NFL—it would likely last until Judge Mazzant could reach a decision on the merits of Elliott’s accompanying lawsuit. The timeline for such a decision might take several months, meaning Elliott could conceivably play the entire 2017 season. If he ultimately lost, he would serve the suspension in 2018.
The NFL could respond to Judge Mazzant granting a preliminary injunction to Elliott in at least three ways.
First, the NFL would appeal Judge Mazzant’s order to the U.S. Court of Appeals for the Fifth Circuit. In an encouraging sign for the NFL, many Fifth Circuit judges are regarded as conservative and management-friendly. The Fifth Circuit could also act fast. Recall what happened when Judge Susan Nelson issued an injunction for NFL players during the 2011 lockout: four days later the relevant appellate court, the U.S. Court of Appeals for the Eighth Circuit, stayed Judge Nelson’s injunction, thereby reinstating the lockout.
Second, depending on the wording of Judge Mazzant’s order to enjoin the NFL, the NFL might place Elliott on the commissioner’s exempt list. The list empowers the commissioner to place a player on what amounts to administrative leave: he’s barred from reporting to work but is still paid. Goodell used the exempt list in the Adrian Peterson controversy. If he used it here, the NFLPA would probably head back to Judge Mazzant and demand he issue a ruling stopping Goodell from using it again.
As a third step, the NFL will continue to seek to move the litigation to a more favorable forum: the U.S. District Court for the Southern District of New York. The league began that path Tuesday night in a filing there. In that jurisdiction, the NFL could rely on its 2016 victory over Tom Brady as precedent.
Alternatively, if Elliott’s petition fails, he would be subject to the suspension. He would appeal Judge Mazzant’s ruling, but his odds for success would be very low.
FELDMAN: Why is Elliott allowed to play on Sunday?
MCCANN: The NFL did not have to permit Elliott to play against the New York Giants on Sunday, but my sense is that, for strategic reasons, the league wants Judge Mazzant to view the NFL as fair and reasonable. The NFL also knows that the Elliott case could last a while and potentially involve other judges. The more the NFL appears reasonable in its treatment of Elliott, the better positioned the league would be when arguing in court.
The NFL is also mindful of the impact of Elliott’s availability and absence on the Cowboys. With Elliott continuing to practice with the Cowboys days before their opening matchup with division rivals, the NFL may want to avoid the perception that its treatment of Elliott supplied the Giants with an unfair benefit. [Early this morning, the NFL released an additional statement explaining the decision to allow Elliott to play in Week 1.]
FELDMAN: What chance would you say there is that he's on the field for Week 2? For the rest of the year? How much do you love these guessing games?
MCCANN: It is very difficult to predict what a judge will do. The fact is, Judge Mazzant has tremendous discretion on how he rules.
That said, the odds favor the NFL. The league has both a favorable contract—Article 46 of the CBA—and favorable precedent—the Brady and Peterson decisions, among others—on its side. To be sure, the NFL’s treatment of Elliott seems flawed on multiple levels, particularly in regards to Goodell not speaking with Kia Roberts, the only co-lead investigator who actually spoke with Elliott’s accuser, Tiffany Thompson. But the legal bar for the NFL to pass is a low one, and that is the strongest factor favoring the NFL.
So odds are that Elliott will not be on the field in Week 2 or in the subsequent five weeks (actually six, including the Cowboys’ bye week). But again, it’s Judge Mazzant’s call. He could potentially grant a TRO and then reject a preliminary injunction, meaning Elliott plays in Weeks 1 through 3 and then sits out the following six games. There are different roads this could take.
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NOW ON THE MMQB: The staff gives playoff and award predictions ... Tim Rohan details the education of Marcus Mariota ... Jenny Vrentas looks at Adrian Peterson and runners' second acts ... Robert Klemko chronicles J.J. Watt's work in the wake of Hurricane Harvey ... and more.
COMING LATER TODAY: Vrentas and Kalyn Kahler discuss NFL anthem protests with Malcolm Jenkins and Anquan Boldin ... Andy Benoit dives deep on the Steelers ... Jonathan Jones tells the story of Steve Sarkisian's move to the NFL ... and, you guessed it, more.
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1. The NFL season starts tomorrow and I want to begin Press Coverage by talking about the lowly 49ers—namely linebacker NaVorro Bowman. The 29-year-old went from playing in Patrick Willis’s shadow to potentially being eclipsed by rookie Reuben Foster, never mind that he’s earned more All-Pro nods than every 49er except for Willis, Jerry Rice and Ronnie Lott. He recently sat down for an hour with the San Francisco Chronicle. “A healthy Bowman is still the best linebacker in the NFL,” he told Eric Branch. “What else has stopped me? A knee and an Achilles. What else? What else can you say about me?” If that quote doesn’t endear him to you, how about this anecdote: as a third-round rookie on a $320,000 base salary, NaVorro bought a $170,000 Porsche Panamera “to put pressure on myself” to earn enough money to comfortably pay it off. (Here's a full transcript of his conversation).
While we are in the Bay, The Mercury News has a worthy profile of Brian Hoyer—the QB who might have the highest ratio of minutes played in front of my eyeballs to details I know about him—that includes a lengthy guacamole metaphor, because San Francisco.
Meanwhile, Ahmad Brooks is settling in with the Packers
2. Have you read Robert Klemko on J.J. Watt’s work following Hurricane Harvey? Once you do, spend more time with the Texans megastar—a “new J.J. Watt,” according to Dan Pompei—who supposedly won’t be doing quite so many commercials this year. “I have gotten good at minimalizing unnecessary things in life,” Watt says. “I've gotten better at prioritizing what's important. I'm learning to pick and choose what matters."
Speaking of Pro Bowl defensive lineman who have built sizable off-field reputations, The Undefeated goes deep with Seahawk Michael Bennett, “An Activist Disguised As a Football Player.”
3. When Melvin Gordon takes the field on Sunday, his father will be there for the first time since 2011. Melvin “Big Bo” Gordon had been imprisoned for five years for his role in a cocaine-dealing ring. He was released in December. Mike DiGiovanna has the story of their relationship for the Los Angeles Times.
4. Washington’s newest defensive coordinator, 51-year-old Paul Manusky, sounds like quite the character. He hides in portable toilets and jumps out to scare passersby; he used to legit hit himself in the head after making mistakes; he majored in geology. “Manusky's crazy, man,” says linebacker Mason Foster.
5. While most of the attention in Dallas is rightly focused around Ezekiel Elliott, Pete Thamel detailed Dak Prescott’s summer, which included meetings with Pepsi execs, comparisons to Peyton Manning and Derek Jeter, and lots of dominoes (the game, not the pizza). Fair or not, you can certainly feel the stereotype of goody-good Dak and bad boy Zeke developing.
6. Still trying to catch up on where every team stands entering the season? ESPN and SBNation have massive (and massively designed) full-league previews, while Robert Mays continues his power ranking march with the mediocres.
7. The line of players willing to speak out in favor of Colin Kaepernick’s merits grew yesterday. During his press conference, Cam Newton said, “I really think it's not fair. I think it's unfair. But not to take any storm or glory away from his game, we're trying to find every way to beat the 49ers come Sunday. But in my opinion, do I think Kaepernick is better than some of these starting quarterbacks in this league? Absolutely. Should he be on a roster? In my opinion, absolutely. There's no question about it. Is he good enough to be a starting quarterback? Absolutely." On SI Now, Von Miller took a similar stance.
8. If you, like me, are starting to feel that Rex Ryan-sized hole in the NFL landscape right about now, Rich Cimini caught up with the walking quote machine. Asked about the upcoming Rex Bowls between the Bills and Jets, Ryan said, “Two of the worst games in the history of the NFL … could it be like that? Hell, yeah, it probably could be.”
9. Should Houston have paid for dams rather than sports stadiums? I’m far from an expert, but this Kevin B. Blackistone column made me think.
As Hurricane Irma barrels toward Florida, the NFL announced that the Dolphins and Bucs won't play in Miami on Sunday. The Miami Herald's Armando Salguero says the best-case scenario at this point would be a game at Hard Rock Stadium on Monday night. Eagle Chris Long had another suggestion.
10. Let’s talk QBs. Here are breakdowns of NFC North rivals Sam Bradford and Aaron Rodgers, and here’s a story on what Buffalo Bills QB Nathan Peterman learned from Dak Prescott and Mark Brunell as the rookie seems increasingly likely to see significant time under center this year.
Have a story you think we should include in tomorrow’s Press Coverage? Let me know here.