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  • Ezekiel Elliott's six-game suspension has been reinstated. Here are the remaining legal options left for the Dallas Cowboys tailback's slim chances of not serving his punishment immediately.
By Michael McCann
October 31, 2017

To put it mildly, Ezekiel Elliott has experienced a turbulent 24 hours. On Sunday, the Dallas Cowboys running back rushed for 150 yards and two touchdowns in a 33-19 victory over the Washington Redskins. On Monday, U.S. District Judge Katherine Failla of the Southern District of New York denied Elliott a preliminary injunction in his multi-state litigation against the NFL. Judge Failla’s decision means that the NFL can finally enforce its six-game suspension of Elliott—unless an unlikely legal ruling alters the trajectory of this case.

Why Elliott lost

As has been stressed from the beginning of Elliott’s legal efforts in August, Elliott and the NFLPA face unfavorable legal precedent in any court required to follow the U.S. Court of Appeals for the Second Circuit’s decision in the Tom Brady “Deflategate” case. The Southern District of New York, a district that covers the NFL’s headquarters in Manhattan, is one such court.

Attorneys for Elliott and the NFLPA attempted to avoid the Southern District of New York by suing the NFL in a more favorable forum. They did so in the Eastern District of Texas and filed before the NFL could sue in New York. In fact, Elliott sued before arbitrator Harold Henderson even ruled on Elliott’s appeal of the suspension. This "forum shopping" move initially worked. In a decision highly critical of the NFL, U.S. District Judge Amos Mazzant granted Elliott a preliminary injunction, thereby preventing the league from imposing the suspension. Unfortunately for Elliott, the U.S. Court of Appeals for the Fifth Circuit reversed Judge Mazzant and vacated the injunction. The Fifth Circuit’s reversal was based on Elliott suing before Henderson ruled Elliott's lawsuit was not yet “ripe” since Elliott had not exhausted his remedies under the collective bargaining agreement.

The Fifth Circuit’s ruling against Elliott brought the litigation back to the Southern District of New York. In that forum, the league requested a court order that would confirm Elliott's suspension. Two weeks ago, Elliott scored a victory when U.S. District Judge Paul Crotty—sitting in for Judge Failla who was away—granted a temporary restraining order against the NFL. The order expired on Monday.

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That brings the Elliott legal saga to Judge Failla’s ruling Monday night. Her ruling repeatedly cites the 2016 Brady decision as clear precedent that Elliott’s arguments cannot prevail.

In the Brady decision, Judge Barrington Parker, Jr. stressed that procedural protections for suspended NFL players are found in the CBA—specifically Article 46.  Although Judge Parker acknowledged that players are also entitled to “fundamental fairness,” he emphasized that players receive “precisely” the kinds protections found in the CBA. This exact same point resonated throughout Judge Failla’s order on Monday night.

Article 46 makes clear that NFL commissioner Roger Goodell issues punishments for conduct detrimental to the NFL. Further, Article 46 stipulates that should a player appeal a suspension for conduct detrimental, Goodell or a designate of his choosing serves as the presiding officer (arbitrator). Importantly, Article 46 does not obligate the punisher (Goodell) or arbitrator (Goodell in Brady; Henderson in Elliott) to hear directly from an accuser or from any particular witness. Likewise, Article 46 does not obligate them to accord more weight to one witness than to another. These were meaningful points in Brady as they are in Elliott.

In Brady, the NFLPA sought to cross-examine co-lead “independent” investigator (and NFL general counsel) Jeffrey Pash. Goodell denied that request. Pash would seemingly have been a critical witness in explaining and defending factual and scientific conclusions made by the NFL against Brady. Judge Parker, however, reasoned that for Brady to enjoy a right to cross-examine Pash, such a right must be expressed in the CBA. It isn’t.

A similar issue has emerged in Elliott: Goodell neither spoke with Elliott’s accuser, Tiffany Thompson, nor with Kia Roberts, the lone NFL investigator who actually spoke with Thompson—and who doubted Thompson’s allegations. Like Judge Parker before her, Judge Failla did not find such unfairness to be legally actionable. This is because nowhere in the CBA does it say that Goodell had to speak with an accuser or investigator—or anyone else, for that matter.

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Indeed, Judge Failla writes, “Courts should not superimpose an extracontractual definition of ‘fairness’ in arbitrations beyond the actual standards and procedures for which the parties bargained.” Further, Judge Failla emphasizes that a court should not vacate an arbitration award (which here refers to Henderson upholding the six-game suspension) “even if the arbitrator ‘committed serious errors.’” In other words, even if the NFL’s review of allegations against Elliott was deeply flawed and uncomfortably unfair, it was nonetheless lawful. This is because courts owe arbitrators such significant deference and because Article 46 does not provide the kinds of protections that Elliott needs in order to defeat his suspension.

Elliott’s remaining chances dim but not over

By far the most likely scenario going forward is that Elliott, who has played in the Cowboys’ first seven games, serves a six-game suspension beginning this Sunday in the Cowboys-Kansas City Chiefs game. Elliott would return to play in the Cowboys-Oakland Raiders game on Dec. 17.

Elliott, however, is not without legal options. Judge Failla has granted a 24-hour stay (delay) from enforcement of her ruling. The stay allows attorneys for Elliott and the NFLPA to consider their appellate options. One obvious option would be to petition the Second Circuit for an emergency hearing in order to review Judge Failla’s order. Alternatively, the attorneys could ask the Second Circuit to grant a stay—which would prevent Judge Failla’s ruling from taking effect—until such a hearing could be held. The attorneys would insist that Elliott would suffer irreparable harm—harm that money cannot fix—once he starts missing games.

Elliott is unlikely to get help from the Second Circuit. For starters, his situation is hardly a matter of great societal importance. While Elliott’s case is newsworthy, it is fundamentally about whether a football player is eligible to play in six games. No one’s life is on the line. No one is going to be sent to prison or deported. Emergency hearings are typically not granted unless there is a real emergency.

Second, as mentioned above, in order for Elliott to be granted a stay, he would need to show irreparable harm. Judge Failla categorically rejected this possibility in her order:

“[F]uture economic injuries such as lost profits are compensable through monetary awards. And any individual honors Elliott might attain absent suspension depend on countless variables — such as the Cowboys’ overall offensive performance, his opponents’ defensive performance, and Elliott’s health — that together render this alleged harm far too speculative to justify injunctive relief. As for damage to Elliott’s reputation, cases in this Circuit require a more concrete economic impact than mere negative publicity to constitute irreparable harm.”

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Elliott and the NFLPA could also re-start litigation in the Eastern District of Texas or in the Fifth Circuit, but there he would face long odds. In the most recent ruling, Judge Mazzant dismissed the case for lack of subject matter jurisdiction. This means the judge reasoned he did not have the authority to review the claims brought by Elliott.

Subtext matters: The fallout of Jones supporting Goodell during Deflategate and the continued failure of Article 46 to protect players

As the Elliott case has played out, news reports indicate that Cowboys owner Jerry Jones is leading a movement among owners to deny Goodell—whose contract expires in March 2019—of a contract extension. According to ESPN’s Chris Mortensen and Adam Schefter, Jones is one of 17 owners who are exploring how the league might bring on a different commissioner.

While the rationale for owners to oppose Goodell appears based at least in part on Goodell’s handling of the national anthem controversy, one has to think Jones is also motivated by regret. Namely, regret that he glowingly supported Goodell’s handling of Deflategate in spite of science that seemingly debunked the NFL’s theories. After all, the Brady decision is a main reason why Elliott will likely miss the Cowboys’ next six games.

One might say what goes around comes around.

Meanwhile, yet another NFL player has been subjected to an arbitration process under Article 46 that many observers regard as unfair. While the legal response appears to be “too bad, the union agreed to it,” it stands to reason that NFLPA leadership ought to prioritize Article 46 as a policy that needs fixing in the next CBA (the current CBA will expire after the 2020 season). Although only one or two percent of NFL players encounter Article 46, the players who do encounter it are afforded such few protections that it invariably invites questions about NFLPA leadership.

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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