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  • Elliott's litigation isn't necessarily over, but his remaining options—which are broken down below—are unlikely to be successful.
By Michael McCann
October 12, 2017

The NFL’s legal team on Thursday scored its latest victory against a star player who went to court to challenge a suspension ordered by NFL commissioner Roger Goodell. A three-judge panel on the U.S. Court of Appeals for the Fifth Circuit vacated a preliminary injunction that had allowed Dallas Cowboys running back Ezekiel Elliott to play. The injunction, granted by U.S. District Judge Amos Mazzant III on Sept. 8, had barred the NFL from imposing a six-game suspension on Elliott for violating Article 46 of the collective bargaining agreement. The NFL can now enforce its suspension on Elliott, who has played in the Cowboys first five games.

Why the NFL won on appeal

From the beginning of this litigation, the NFL was clearly poised to win. The core problem for Elliott, like Tom Brady and Adrian Peterson before him, is that Article 46 doesn’t expressly provide the kinds of process rights that players need in order to prevail in court. Further, most of the federal appeals judges reviewing players’ legal challenges under Article 46 have been unwilling to recognize rights that the NFLPA failed to obtain through collective bargaining with the NFL.

Much of Elliott’s case is built on the idea that the NFL denied him a fair process. Logically, Elliott has a persuasive point. It remains baffling that Kia Roberts—the NFL’s Director of Investigations and the only league investigator who actually interviewed Elliott’s accuser (Tiffany Thompson)—was excluded from meetings with Goodell, whose suspension of Elliott was upheld by arbitrator Harold Henderson. Importantly, Roberts expressed doubt as to Thompson’s account and her veracity. Roberts also recommended that Goodell not suspend Elliott.

Then shouldn’t Roberts have been a critical voice in Goodell’s decision making?

Commonsense says “yes, obviously.” The law, unfortunately for Elliott, says “no, not necessarily.”

Indeed, as argued by top NFL lawyer Paul Clement, Article 46 only imposes one procedural requirement regarding the arbitration hearing: prior to the hearing, the two sides must exchange copies of relevant exhibits (pieces of evidence). That’s it. There’s no requirement that certain witnesses must testify. Likewise, Article 46 doesn’t compel the arbitrator—who is Goodell by default but he can delegate the responsibility to someone of his choosing, such as Henderson—to examine certain pieces of evidence.

In other words, even though basic fairness suggests that Roberts should have testified, Article 46 doesn’t say that.

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The NFL was also aided by the relevant standard of appellate review. The three-judge panel reviewed Judge Mazzant’s decision de novo, meaning, “start from new.” As a practical matter, de novo review instructed the appellate judges to evaluate Judge Mazzant’s reasoning and conclusion without deference. In other kinds of appeals, more deferential standards of review are applied. For instance, had the standard of review been, “clearly erroneous,” Judge Mazzant’s ruling would have been upheld so long as the appellate judges were not certain that he was in error. Instead, by applying de novo, the NFL had a lower bar to meet.

In applying de novo review, Judges Edward Prado and Jennifer Elrod regarded the Elliott and the NFLPA’s lawsuit as “premature.” I wrote about this point several times in coverage of this litigation. Elliott challenged the NFL in court before Henderson, the arbitrator (hearing officer), had ruled on Elliott’s appeal of the suspension. Timing matters here. Normally in law, a plaintiff must first exhaust his or her internal or administrative remedies—such as the right of a unionized employee to contest an employer’s sanction through arbitration—before a court will consider the plaintiff’s case “ripe” for judicial review. The reasoning is simple: judges do not want to expend their limited time and finite energy examining cases that can be resolved through private remedies. As Judges Prado and Elrod stressed, “the [NFL and NFLPA] contracted to have an arbitrator make a final decision” and Elliott didn’t wait for it.

To be fair, attorneys for Elliott and NFLPA sued the NFL “too early” as part of a strategic gamble. Those attorneys knew that the NFL would attempt to direct any litigation to New York, where the league has very favorable precedent from the Tom Brady case. To preempt the NFL from suing in New York, the NFLPA sued first in Texas, hoping that the judges in Texas and the Fifth Circuit would not regard the move as premature. Although this gamble failed, it was not without logic.

Although Judges Prado and Elliott did not directly address procedural rights, the tenor of their opinion did not suggest Elliott and the NFLPA had convinced them to “read in” the kind of process rights that Judge Mazzant identified in his granting of a preliminary injunction and that Judge James Graves identified in his dissenting opinion of Judges Prado and Elrod’s ruling. Judges Pardo and Elrod might be reluctant to recognize rights that the NFLPA did not obtain through collective bargaining. After all, doing so could undermine the CBA as a contract. Look at it this way: the CBA embodies tradeoffs where each side, the NFL and NFLPA, gives and takes. If judges essentially modified the terms of a CBA, both the NFL and NFLPA would be incentivized to find scenarios that would enable lawsuits over unfavorable portions of the CBA. Courts do not want to be tied up reviewing a contract that two sophisticated parties—here the NFL and NFLPA—found acceptable.

Elliott’s legal option number one: ask the Fifth Circuit to reconsider or seek another preliminary injunction at the district court level

Elliott’s litigation isn’t necessarily over, but his remaining options are all unlikely to work.

As a starting point, he can petition the three-judge panel to review the case again through a rehearing. In a rehearing, the same three judges would review the case. Such petitions are rarely granted since the same judges just ruled on the case.

Elliott can also petition for a rehearing en banc, in which a majority of the 13 active judges on the Fifth Circuit would need to support reviewing the case. Such petitions are also almost always denied: one court report says fewer than 3% of en banc petitions are granted in the Fifth Circuit. Successful petitions usually require an airtight argument by the petitioner that the three-judge panel ruled in a way that contradicts the U.S. Supreme Court or other Fifth Circuit rulings. The decision to grant a rehearing en banc also tests internal court dynamics: appellate judges seldom want to review their own colleagues.

Alternatively, Elliott could seek another preliminary injunction from the U.S. District Court for the Eastern District of Texas. Judges Prado and Elrod ruled against Elliott and the NFLPA due to timing: they challenged the NFL before Henderson had ruled. From that lens, Elliott and the NFLPA could insist that until the Fifth Circuit rules on procedure, Judge Mazzant’s reasoning stands. However, since the NFL has moved the litigation to New York (see below), Elliott would likely need to first persuade U.S. District Judge Katherine Polk Falla of the U.S. District for the Southern District of New York to transfer the litigation back to Texas.

Elliott’s legal option number two: the “Hail Mary” of litigating in New York

Although Elliott has lost in the Fifth Circuit, the NFL has effectively invited Elliott to continue the litigation in New York. On Sept. 5, the league—clearly concerned by the prospect of losing before Judge Mazzant—filed a lawsuit in the U.S. District Court for the Southern District of New York against the NFLPA. The lawsuit simply asked the New York court to “confirm and enforce” the arbitration award issued by Henderson against Elliott. The NFL’s reasoning was obvious: the league knew that its victory against Brady in the U.S. Court of Appeals for the Second Circuit would be binding. This is because the Second Circuit has appellate jurisdiction over the Southern District of New York. Put differently, the NFL was “forum shopping”: the league was trying to position for the most favorable court to review of Elliott’s challenge.

You might ask, “Wait a second. Isn’t Elliott’s case completely different than that of Brady? Why are you discussing them like they are related?”

Elliott and Brady are very different cases in terms of factual allegations: Elliott was accused of battering a woman while Brady was accused of a comparatively trivial matter—whether he had general awareness of an alleged, but scientifically doubted, conspiracy to slightly underinflate footballs. In terms of facts, Elliott and Brady’s case couldn’t further apart on the spectrum of societal importance.

Yet Elliott and Brady’s cases are completely similar in terms of applicable law and procedural rights—and those are what matter in litigations over arbitration awards. Both players invoked federal labor and arbitration laws to challenge unfavorable arbitration awards concerning their respective NFL suspensions. And both players maintained the NFL denied them fair process. Indeed, in both cases, the players stressed that the arbitrator (Goodell for Brady, Henderson for Elliott) blocked NFLPA attorneys from opportunities to cross-examine certain witnesses and gain access to investigative notes.

Therein lies the problem for Elliott in litigating in New York: it is perhaps the worst forum for him. The Brady decision is binding authority over the Southern District of New York and in many respects the Brady decision is directly on-point to Elliott’s legal arguments.

The NFLPA has already petitioned the presiding judge in New York, Judge Polk Failla, to dismiss the New York lawsuit and transfer the litigation back to Texas. If the NFLPA fails, Elliott would almost face long odds in New York.

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Elliott’s legal option number three: the “Hail Mary” of taking the case to the U.S. Supreme Court

If all else fails for Elliott, there is always the U.S. Supreme Court. Unfortunately for Elliott, the Supreme Court isn’t inclined to listen.

After exhausting his remaining appeals before U.S. Courts of Appeals, Elliott could petition the Supreme Court to review his case. Most likely, he would ask the Supreme Court to review the three-judge Fifth Circuit panel’s ruling.

More specifically, Elliott would ask the circuit justice for the Fifth Circuit to grant a so-called “stay.” A stay would block the NFL from suspending Elliott until the Supreme Court decided on whether to grant “certiorari” (meaning a decision to review Elliott’s case). The circuit justice for the Fifth Circuit is U.S. Supreme Court Justice Samuel Alito. Discouragingly for Elliott, Justice Alito’s judicial ideology is far more in line with “management” than “labor.”

Justice Alito would render a decision on the stay exclusively “on paper,” meaning he would only review written filings by the NFL and NFLPA and not conduct a hearing. The review would include analysis of lower court rulings, briefs by the NFL and NFLPA and potentially so-called “amicus briefs” or “friends of the court briefs” authored by interested third parties—perhaps including the Dallas Cowboys.

Stays are seldom granted. Justice Alito would need to be persuaded that he ought to disturb a carefully reasoned, albeit debatable, ruling by a U.S. Court of Appeals. If Justice Alito nonetheless granted a stay, the NFL would then be barred from imposing its suspension of Elliott until the nine justices on the Supreme Court decided whether to grant certiorari. On average, justices take about six weeks to grant certiorari. A stay, in other words, would extend Elliott’s ability to play for at least a period of weeks.

Elliott would need at least four of the nine justices to then grant certiorari. Unfortunately for Elliott, the Supreme Court only grants certiorari about 1% of the time. If Elliott defied the odds and was granted certiorari, his case would not be heard until 2018, and his suspension would be stayed until after a Supreme Court ruling.

But the most likely scenario? Elliott serves his suspension this 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, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA and My Life in Basketball.

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