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  • Ezekiel Elliott and the NFLPA came out with a small victory Tuesday night when a New York court granted Elliott a temporary restraining order.
By Michael McCann
October 17, 2017

The Ezekiel Elliott case took another twist Tuesday night when U.S. District Judge Paul Crotty of the Southern District of New York granted Elliott a temporary restraining order (TRO). Earlier in the afternoon, Judge Crotty had listened to competing arguments by attorneys for the NFL and NFLPA over the lawfulness of arbitrator Harold Henderson upholding NFL commissioner Roger Goodell’s six-game suspension of Elliott.

The TRO prevents the NFL from imposing the suspension for the next couple of weeks. The TRO should thus allow Elliott, who has played in all six Cowboys games this season, to also play in the next two games: this Sunday against the 49ers and next Sunday against the Redskins.

Judge Crotty, filling in for U.S. District Judge Katherine Polk Failla (who is away), reasoned that Elliott and the NFLPA had raised “significant issues implicating the fundamental fairness of the arbitration proceeding.”

Those issues include Elliott being denied opportunities to confront his accuser, Tiffany Thompson, and question NFL commissioner Roger Goodell about whether he was “aware that the accuser of domestic violence was not credible.” Judge Crotty highlighting Goodell’s knowledge about Thompson reflects the fact that Kia Roberts—the only NFL investigator who actually met with Thompson and who also doubted Thompson’s story—was strangely denied a role in NFL hearings concerning Elliott.

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As explained earlier today, Elliott and his attorneys faced a challenging path to obtain a TRO. Among other steps, they had to meaningfully distinguish the process experienced by Elliott to the one experienced by Tom Brady. In his 2015 decision against Brady, Judge Barrington Parker, Jr., of the U.S. Court of Appeals for the Second Circuit reasoned that unfairness in the process used by the NFL to review Brady was acceptable because the collective bargaining agreement permitted it. The Brady decision is binding precedent in the Southern District of New York.

In his order, Judge Crotty criticized the NFL for suggesting that, as a result of the Brady decision, fundamental fairness is not at all required under the applicable federal law. The NFL, according to Judge Crotty, “argued during the hearing that Brady II forecloses judicial review of arbitral decision for fundamental fairness. This is quite wrong.” (emphasis added).

While Elliott and the NFLPA are no doubt thrilled by TRO, it is only a temporary victory. Judge Crotty stipulated that the TRO is set to expire until the earlier of Oct. 30 or a ruling by Judge Failla on a preliminary injunction.

A preliminary injunction would be a far more lasting ruling for Elliott. It would likely last weeks, if not months, and possibly allow Elliott to play the entire 2017 season. 

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Whether Judge Failla agrees with Judge Crotty’s analysis remains to be seen. Advantaging Elliott is the fact that three federal judges—Judge Crotty, U.S. District Judge Amos Mazzant III of the Eastern District of Texas and Judge James Graves of the U.S. Court of Appeals for the Fifth Circuit—have all identified an unacceptable degree of unfairness in how the NFL treated Elliott. Judge Failla might be inclined to rule similarly. Then again, she might be more persuaded by the NFL’s arguments, which stress the fact that the NFLPA agreed to the very arbitration system at issue in the Elliott case. If Judge Failla doesn’t grant a preliminary inunction, Elliott would likely serve his six-game suspension in the second half of the Cowboys’ season.

Also lurking in the background in the U.S. Court of Appeals for the Second Circuit. As it was after U.S. District Judge Richard Berman ruled in favor of Brady, the NFL is likely confident it can defeat Elliott at the appellate level. The Second Circuit, however, might not review the Elliott case until after the 2017 season. In that scenario, the earliest Elliott would serve his suspension would be at the start of the 2018 regular 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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