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  • When the NFL filed a lawsuit in New York against the NFLPA, the league effectively invited Elliott to continue litigation in that state. Now, Elliott's case simultaneously involves two federal circuits.
By Michael McCann
October 17, 2017

The legal battle between suspended Dallas Cowboys running back Ezekiel Elliott and the NFL has become a multi-state affair.

On Tuesday, Elliott petitioned the U.S. District Court for the Southern District of New York to grant a temporary restraining order or a preliminary injunction. Such an order would allow Elliott, who has yet to miss a game in the 2017 regular season despite being suspended for six games, to play as soon as the order is issued. At 2:15 p.m. on Tuesday U.S. District Judge Paul Crotty will hold a hearing in New York to review Elliott’s petition.

Elliott has already received this form of relief: on Sept. 8, U.S. District Judge Amos Mazzant III of the Eastern District of Texas enjoined the NFL from imposing the suspension. Last Friday, however, the U.S. Court of Appeals for the Fifth Circuit vacated Judge Mazzant’s order, thereby reinstituting the suspension (the Cowboys had a bye week his past weekend, so Elliott did not miss a game). Elliott now hopes for success in New York, while continuing to exhaust his appeals in Texas.

Elliott’s case has become unusual in that it simultaneously involves two federal circuits. While different federal courts sometimes address very similar cases at the same time, each specific case is assigned to one court, not two. To be sure, some litigants would prefer to see review by different federal district courts in hopes that at least one court rules favorably. Such an arrangement, however, would be an inefficient use of judicial resources and tax dollars. Further, courts across the country reaching opposite conclusions in the exact same case would trigger uncertainty as to which ruling is correct. Such a dynamic would cause unpredictability and undermine the reliability of the judicial process.

Yet Elliott’s case is now in both Texas and New York.

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Ezekiel Elliott Suspension: Breaking Down Remaining Legal Options for the Cowboys RB

Interestingly, Elliott’s ability to get “two bites at the apple” is a result of the NFL’s own doing. While the NFL attempted to repel Elliott’s lawsuit in Texas back in September, the league went on the “offense” in New York by filing a lawsuit against Elliott. The two lawsuits were, as NFLPA attorney David Kessler puts it, “mirror images”: Elliott asked Judge Mazzant to vacate a forthcoming arbitration award (decision) by arbitrator Harold Henderson that would uphold Goodell’s suspension while the NFL asked U.S. District Judge Katherine Polk Failla (who was originally assigned the case in New York) for the opposite: a federal court’s confirmation of Henderson’s award.

Each side pursued relief from different federal courts for purely strategic reasons. The Southern District of New York is the ideal forum for NFL. This is because the U.S. Court of Appeals for the Second Circuit’s 2016 decision in the Tom Brady case is precedent in the Southern District of New York and thus must be followed by Judge Crotty.

In the Brady decision, Judge Barrington Parker, Jr. substantially limited the ability of an NFL player to argue that the NFL deprived him of fundamental fairness in applying Article 46 of the collective bargaining agreement. Indeed, Judge Parker found it within the scope of the arbitrator’s authority to deny a player a chance to review the investigative notes and analytical methodologies that serve as the basis of the claims against him. Likewise, Judge Parker deemed it permissible for the arbitrator to deny a player a chance to cross-examine a chief accuser. If you recall, even though NFL general counsel Jeffrey Pash was, along with Ted Wells, the co-lead investigator into Deflategate and also an editor of the Wells Report, it was nonetheless lawful, Judge Parker reasoned, for Goodell to deny Brady and his attorneys a chance to question Pash. Judge Parker further reasoned that in order for Brady to possess the kinds of process protections that he maintained were essential for fundamental fairness, Article 46 needed to express those protections in writing. It did not.

It is thus no surprise that the NFL wants to litigate the Elliott case in New York. Like Brady, Elliott was denied access to investigative notes and related materials. And like Brady, Elliott was denied a chance to question a person who has accused him of wrongdoing and whose accusation served a basis for Goodell to find fault and punish.

For Elliott to prevail to New York, his attorneys must convince Judge Crotty that he suffered a kind and severity of fundamental unfairness that exceeds even the expansive boundaries of arbitrator deference articulated by Judge Parker. To that end, NFLPA attorneys hope that Judge Crotty is persuaded by the commentaries of Judge Mazzant and Fifth Circuit Judge James Graves, the latter of whom authored a dissent in favor of Elliott. While commentaries and rulings from other federal circuits are not binding on Judge Crotty, they are still persuasive authority.

To put it bluntly, Judges Mazzant and Graves lambasted the NFL. For instance, Judge Mazzant wrote, “fundamental unfairness infected this case from the beginning, eventually killing any possibility that justice would be served.” For his part, Judge Graves charged that Goodell and Henderson “impugned the integrity of the arbitration process.”

The sharp critiques offered by Judges Mazzant and Graves stem from the unusual, and seemingly unfair, way the NFL incorporated the insights of Kia Roberts, whom the league retained to interview Elliott’s accuser (Tiffany Thompson). Roberts is the only person retained by the NFL who met with Thompson, whose accusations of domestic violence against Elliott did not lead to criminal charges. Roberts, who spoke with Thompson on six occasions, was unconvinced by Thompson’s retelling of events. Thompson went so far as to recommend that Goodell not suspend Elliott solely on the basis of Thompson’s accusations. Although the NFL insists that Goodell was aware of Roberts’ views, Roberts was not directly involved in proceedings managed by Goodell and Henderson.

Along those lines, Elliott’s attorneys have attempted to distinguish the Brady decision by noting that while Pash was an accuser of Brady, he was not the only accuser. Thompson, in contrast, is the only person whose accusations against Elliott serve as grounds for the NFL’s punishment of Elliott. Although there was no way for the NFL—a private entity and thus lacking subpoena power—to compel Thompson to testify, Roberts was clearly available to speak..

Elliott thus needs Judge Crotty to regard the NFL’s handling of Roberts’ input on Thompson as materially distinguishable from procedural issues raised in the Brady case and as grounds for fundamental unfairness.

The NFL categorically rejects such a concept. NFL attorney Paul Clement has repeatedly stressed that there is no requirement in Article 46 for Goodell to meet with investigators or to rely on their recommendation. Article 46 clearly places the decision to punish in the hands of Goodell, who is able to rely on other information, including medical documents of alleged victims, in deciding whether to punish a player. The inference of Clement’s argument is that if NFL players wanted such protections, they ought to have negotiated for their inclusion in the CBA.

Even if Elliott’s attorneys are able to convince Judge Crotty to regard his situation as displaying fundamental unfairness, those attorneys must still convince Judge Crotty of other elements in order to secure a temporary restraining order (which would last up to 14 days) or a preliminary injunction (which would last for multiple weeks and possibly the remainder of the 2017 NFL season). Among other things, they would need to establish that Elliott missing games would constitute “irreparable harm.” Such harm generally means harm that monetary damages can’t later remedy. The NFL contends that it could always repay Elliott if he later proves he should not have been suspended, while Elliott asserts he could never replay missed games—or recapture lost statistics—and that being away from his team is professional damaging.

It’s possible that Judge Crotty could deny Elliott’s petition merely on procedural grounds. He could reason that Elliott’s case is currently on appeal in the Fifth Circuit and that it would be inappropriate for another federal judge to rule on his case until there is resolution in the Fifth Circuit.

Meanwhile in Texas . . .

Despite media reports over the weekend suggesting that Judge Mazzant had lifted Elliott’s suspension, the suspension remains in effect. Last Friday, Judges Edward Prado and Jennifer Elrod of the Fifth Circuit vacated the injunction issued by Judge Mazzant. Nothing has changed since that time. On Tuesday the Fifth Circuit rejected the NFLPA’s motion to recall the mandate of the case’s dismissal. This means Elliott and the NFLPA must now convince the Fifth Circuit to re-hear the case, although as I explained last Friday, rehearings are rarely granted

One potentially encouraging aspect to the litigation for Elliott is that while Judges Pardo and Elrod vacated Judge Mazzant’s injunction, they did so on timing grounds, rather than on grounds that the judge misapplied the substance of the law. In short, Judge Mazzant reviewed Elliott’s arguments before Elliott had heard from Henderson (the arbitrator). Judges are normally expected to wait until a plaintiff has exhausted his or her internal or administrative remedies, and that is true of unionized employees whose CBAs’ offer dispute resolution mechanisms. Article 46 is the mechanism for Elliott and other NFL players.

It is unknown how Judges Pardo and Elrod might have ruled on the substantive arguments. Whether Elliott gets another chance to raise them in the Fifth Circuit is unclear.

The MMQB will keep you posted on any developments.

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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