After Tom Brady beat the NFL in court in 2015, the league decided to scrap its legal playbook. The NFL hired two ace attorneys to engineer a new strategy for litigating against New England’s star quarterback. Former U.S. Solicitor General Paul Clement, who successfully argued on the NFL’s behalf in the 2011 lockout litigation, and appellate specialist Erin Murphy, who successfully argued cases before the U.S. Supreme Court, were brought on board.
The tide would soon turn in favor of the NFL. The league filed persuasive briefs to a three-judge panel on the U.S. Court of Appeals for the Second Circuit during the fall of 2016. Then, in March 2016, Clement skillfully advocated the NFL’s case in front of the panel. The NFL won the appeal, and Brady, who was accused of participating in an alleged football under-inflation conspiracy, sat out the first four games of the 2016 season.
The league hopes that Clement and Murphy—both of whom just joined the NFL’s legal team in the Ezekiel Elliott case—can produce a similar result this time around with Elliott. But the NFL wants the timeline to move a lot faster than it did in the Brady case: The league requests a decision from the Fifth Circuit by Tuesday, Sept. 19, at 10:00 a.m. CDT.
To that end, Clement, on behalf of Murphy and other appellate attorneys retained by the NFL, submitted an emergency motion for a stay pending appeal on Friday. The motion was filed in the U.S. Court of Appeals for the Fifth Circuit, which has appellate jurisdiction over the court in which Elliott won, the U.S. District Court for the Eastern District of Texas.
Clement contends that U.S. District Judge Amos Mazzant badly erred in his decision to enjoin the league from carrying out its six-game suspension of Elliott. Clement describes Judge Mazzant as unlawfully exceeding his authority as a judge. According to Clement, Judge Mazzant based his decision not on the procedural safeguards Elliott was owed in the collective bargaining agreement, but instead on safeguards that Elliott might enjoy in an ideal world envisioned by Judge Mazzant.
Clement charges that unless the Fifth Circuit reverses Judge Mazzant’s “precedent-defying decision,” the decision “will cause irreparable damage to the League’s ability to enforce the parties’ agreed-upon CBA in a timely and orderly fashion” and undermine “principles of judicial review of labor arbitration awards.”
If the Fifth Circuit declines to intervene favorably for the league, Elliott will likely play the entire 2017 season. The NFL thus asked the Fifth Circuit to issue an immediate stay of Judge Mazzant’s injunction.
Importantly, if the Fifth Circuit “stays” (stops) the injunction, the NFL could instantly impose the six-game suspension—meaning Elliott would then have to sit out six games and the Dallas Cowboys would need someone else to start at running back.
For the Cowboys, Cowboys’ fans and fantasy football players who have Elliott on their team, it’s all about the “stay” right now: If the NFL obtains it, Elliott will sit out six games during the 2017 season. If not, Elliott might eventually serve his suspension, but it would most likely occur during the 2018 season.
Clement’s key arguments
In an appeal of a preliminary injunction, the appellant (the party making the appeal) must establish that the judge incorrectly applied the law in deciding to grant the injunction. This means whether Elliott committed domestic violence or whether his accuser, Tiffany Thompson, lied or exaggerated are not the relevant topics for the Fifth Circuit to explore. Instead, the critical question is whether Judge Mazzant incorrectly applied the law in placing the proceedings on pause until the judge has an opportunity to review the merits of Elliott’s accompanying lawsuit. Such a review by Judge Mazzant might not occur until well into 2018, which presents an unacceptable timetable from the league’s vantage point.
Clement began his brief by stressing the “substantial deference owed to a labor arbitrator’s decision.” In this context, the arbitrator is Harold Henderson, the former NFL executive vice president who presided over Elliott’s appeal of the suspension issued by NFL Commissioner Roger Goodell on Aug. 11. Henderson upheld the suspension on Sept. 5—only hours after Judge Mazzant presided over a court hearing in which he reviewed Elliott’s petition for a preliminary injunction.
Clement asserts that Judge Mazzant neglected to consider that “no court challenge may be filed until after the arbitrator has ruled.” As I explained in previous articles, the NFL has offered a plausible argument that Judge Mazzant should have waited to review Henderson’s decision until Henderson actually issued his arbitration award (decision). Instead, a court hearing took place before then.
To that end, Clement charges “federal courts do not have jurisdiction to review un-issued and still-pending arbitration awards.” Clement thus contends that the legal dispute was not yet “ripe” since Elliott’s appeal under Article 46 of the CBA had not yet finished.
Clement further highlights that Judge Mazzant effectively gave procedural safeguards to Elliott that Elliott’s union, the NFLPA, had failed to obtain in collective bargaining. As Clement observes, “Article 46 imposes only one discovery obligation: Before the hearing, the parties shall ‘exchange copies of any exhibits upon which they intend to rely.’” Indeed, the CBA does not list “procedures for compelling witnesses, conducting cross-examination, or introducing evidence.” Clement thus hopes the Fifth Circuit will regard Judge Mazzant’s reasoning as undermining the contract—the CBA—that empowers the NFL to discipline Elliott and empowers Elliott to challenge that discipline.
In addition, Clement draws particular attention to the substantial deference accorded to Goodell under Article 46. For instance, according to Clement, Goodell did not “have to” receive and review disciplinary recommendations offered by investigators. Such recommendations are only required, Clement asserts, “if desired” by Goodell. This is an important point since Goodell did not speak with Kia Roberts, the NFL’s Director of Investigations and the only co-league investigator who interviewed Thompson. From Clement’s perspective, Goodell was under no legal obligation to speak with Roberts.
Likewise, Clement stresses that Henderson’s role was only to determine whether Elliott “was afforded adequate notice ... the right to representation, opportunity to present evidence, and a decision which is fair and consistent.” Henderson found that Goodell had satisfied those procedural safeguards. Judge Mazzant sharply disagreed. Where the Fifth Circuit comes down on those issues remains to be seen.
Key Role of “De Novo” Review
Clement contends that the Fifth Circuit will review whether to grant a stay of Judge Mazzant’s decision under the “de novo” standard of review. Under this form of review, the Fifth Circuit would “start from new” and without deference to Judge Mazzant’s reasoning and conclusions.
As a result, the Fifth Circuit would review Henderson’s arbitration award with the high deference federal law requires of judges when reviewing arbitration awards. Such high deference means that so long as Henderson “is even arguably construing or applying the contract and acting within the scope of his authority,” the arbitrator’s award must be upheld. This is true, Clement stresses, even if the court believes Henderson “committed serious error.”
Such a deferential standard clearly advantages the NFL, as it did in the Brady and Adrian Peterson cases.
Fifth Circuit stresses that emergency appeals should be for real emergencies
Other factors advantage Elliott. For instance, the Fifth Circuit’s rules and operating procedures make clear that in emergency motions in cases other than capital cases, “parties should not file motions seeking emergency relief unless there is an emergency sufficient to justify disruption of the normal appellate process.”
It is possible that judges on the Fifth Circuit might reason that whether an NFL player serves a six-game suspension in 2017 or 2018 is hardly an emergency matter or one that ought to command the time and energy of busy appellate court judges.
On the other hand, as Clement contends, the Elliott case could be regarded as a more meaningful one if one considers its impact on the proper role for a judge in reviewing a labor arbitration award.
Judge Mazzant usually isn’t reversed
Also potentially working in favor of Elliott is that Judge Mazzant has an impressive record on the bench. Judge Mazzant has been a federal judge since 2009, the first five years as a federal magistrate judge and the last three as a federal district judge. During this eight-year stretch, there have been 19 appeals of Judge Mazzant’s decisions (per Westlaw’s terrific judicial reversal report service). The U.S. Court of Appeals for the Fifth Circuit reviewed those appeals and only reversed Judge Mazzant twice.
One of those reversals occurred in Williams-Boldware v. Denton County (TX), which, like the Elliott case, involved an employment matter and attracted some media attention. The case involved Nadiya Williams-Boldware, an assistant district attorney who was subjected to racially insensitive comments by a fellow prosecutor who was a white male. After reviewing evidence in a case involving an African-American woman who drove a car through a historic graveyard, that other prosecutor told Williams-Boldware, who is African-American, that he “understood why people hung from trees” and that he wanted to “go home and put on his white pointy hat.” Judge Mazzant was one of several magistrate and district court judges to review the matter before a three-judge panel on the Fifth Circuit heard it on appeal.
The Fifth Circuit panel concluded that the lower courts failed to adequately consider the impact of the district attorney’s office taking “prompt” steps to halt the “racially harassing conduct.” The Fifth Circuit reasoned that, as a matter of law, Williams-Boldware’s claim was not supported and thus should not have gone to a jury.
Overall, though, Judge Mazzant’s rulings have withstood appellate scrutiny. Of course, that same basic point was true with U.S. District Judge Richard Berman. Judge Berman was seldom reversed on appeal, and yet that is exactly what occurred when the NFL appealed his ruling in favor of Brady.
Timing is everything
The Elliott case has moved at a brisk pace, but its schedule going forward remains uncertain.
First, Judge Mazzant has not yet ruled on a separate motion by the NFL requesting that the judge stay the injunction while the NFL pursues an appeal. It is extremely unlikely that Judge Mazzant will grant such a stay—he would be undermining his own decision— but until he rules, the Fifth Circuit might refrain from taking any action. It is notable that, as of this writing, the Fifth Circuit has not announced a schedule for submission of briefs or, potentially, a hearing. The ability of the Fifth Circuit to move as quickly as the NFL demands—Tuesday, Sept. 19 at 10 a.m. CDT—remains unclear.
Second, we do not yet know which three judges on the Fifth Circuit will be assigned the review of the NFL’s petition. This is important given that judges’ ideologies vary and the three selected might reach a decision that three others would not have reached. Remember the Brady case: Four federal judges reviewed it, and two sided for him and two sided for the NFL. Brady lost because two of the three who ruled against him were appellate judges. Change the identity of the judges and Brady might have played the entire 2016 season.
The NFL may be hoping that the timeline plays out like it did in April 2011. On Apr. 25, 2011, U.S. District Judge Susan Nelson, like Judge Mazzant, granted a preliminary injunction against the NFL. The injunction ended the 2011 lockout and NFL players celebrated. It wasn’t a lasting celebration, however. That’s because the NFL immediately appealed to the U.S. Court of Appeals for the Eighth Circuit, which quickly announced a three-judge panel. Four days later, the three-judge panel issued a stay of Judge Nelson’s injunction on grounds that she was mistaken in her decision. The league would go on to prevail in the litigation.
Other NFL appeals have taken much longer, however. The Brady appeal took seven months and the Peterson appeal took 17 months. Then again, those appeals challenged a federal district judge vacating an arbitration award whereas here the NFL challenges a preliminary injunction.
Law can move fast or slow. The timing of it in the Elliott case could determine whether or not he plays the entire 2017 season.
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.