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  • Cowboys running back Ezekiel Elliott will have to endure most of his six-game suspension, but there is a path for him to successfully trim it down to four games.
  • SI's legal analyst explains what might play out if Elliott decides to sue Roger Goodell and the NFL for defamation.
By Michael McCann
November 09, 2017

Ezekiel Elliott’s season-long run from a six-game suspension has come to an end.

On Thursday, the U.S. Court of Appeals for the Second Circuit denied the Dallas Cowboys running back’s motion for an injunction pending his appeal. Thursday’s ruling terminates a temporary “stay” (hold) that the Second Circuit had granted to Elliott last Friday. The stay had delayed the impact of U.S. District Judge Katherine Failla’s ruling last Monday in favor of the NFL. The stay thus enabled Elliott to play in the Cowboys’ 28-17 win over the Chiefs last Sunday.

The reinstatement of Elliott’s suspension means that he will miss this Sunday’s game against the Falcons. He will then miss at least the following three Cowboys games: Eagles (Nov. 19), Chargers (Nov. 23), and Redskins (Nov. 30).

It is plausible, albeit unlikely, that Elliott could return for the Cowboys-Giants game on Dec. 10 or the Cowboys-Raiders game on Dec. 17. This is because while the Second Circuit denied Elliott what he most wanted—an injunction that would have stopped the NFL from imposing the suspension until the Second Circuit reviewed Judge Failla’s decision—it nonetheless granted him an “expedited” review of his appeal of Judge Failla’s ruling​. Stated differently, the Second Circuit has not yet ruled on whether Judge Failla correctly sided with the NFL.

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Pursuant to the Second Circuit’s expedited review of Elliott’s appeal of Judge Failla’s ruling, a three-judge panel on the Second Circuit will hear oral arguments by attorneys for Elliott/NFLPA and the NFL on Dec. 1. The timing of how quickly the Second Circuit will rule following the Dec. 1 hearing is up to the three judges, but it’s possible that Elliott will hear before he serves the fifth or sixth game of his suspension.

Given that Elliott will miss at least four games, he will obviously not be able to “get those games back” if he later prevails in the appeal. This means that should Elliott ultimately prevail, the NFL would reimburse Elliott for missed games—a hollow victory, to be sure, but one that would still furnish Elliott some degree of vindication.

Yet Elliott’s chances for success on appeal of Judge Failla’s ruling​ fare also unfavorable. As has been explained throughout his legal saga, Elliott faces negative precedent in the Second Circuit because of the court’s 2016 ruling in the Tom Brady case. While the Elliott and Brady cases could hardly be more dissimilar in terms of underlying allegations, they are very closely aligned for purposes of the law. Indeed, Judge Failla repeatedly cited the Brady case in her ruling against Elliott.

In short, both the Brady and Elliott cases concern players arguing that their personal conduct suspensions were unlawful because these players were denied opportunities to review critical evidence and cross-examine key witnesses. In both cases, the NFL has insisted that the players demanded procedural rights that were not collectively bargained by their union, the NFLPA. The Brady precedent is a difficult one for Elliott to overcome.

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Should his appeal fail, Elliott could request an en banc review from the Second Circuit. In such a review, all of the active judges on the court would hear his arguments. Unfortunately for Elliott, the Second Circuit hardly ever grants such reviews—in fact, they are granted less than one percent of the time. Similarly long odds would exist if Elliott later petitions the U.S. Supreme Court. It only takes about one percent of cases.

In reality, if Elliott loses at the Second Circuit, his case is over.

Will Jerry Jones now sue the NFL to block Goodell’s extension? Will Elliott sue Goodell for defamation?

Earlier Thursday on The MMQB, I detailed how Jerry Jones could sue the NFL over his frustration with the Elliott suspension and Goodell’s handling of the national anthem issue. Jones, who is surely annoyed by Thursday’s legal ruling in the Elliott case, would sue in hopes of preventing Goodell from receiving a contract extension. As explained in the Jones article, the NFL would possess a number of strong arguments to defeat Jones’ claims. Even though the league would be poised to prevail, Jones could do damage along the way—particularly if he tries to organize a “vote of no confidence.”

As to Elliott, he could pursue a separate defamation lawsuit against Goodell and the NFL. Under Texas law, Elliott has one year from the date of allegedly defaming statements to bring a defamation lawsuit.

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Elliott could argue that Goodell’s Aug. 11 suspension letter, which has become public, asserts a number of damaging claims that Elliott would contend are false. For instance, Goodell wrote, “based on the entire record, the credible evidence establishes that on multiple occasions during the week of July 16, 2016, you used physical force against Ms. [Tiffany] Thompson resulting in her injury.” Elliott might also cite remarks attributed to the league, such as the Aug. 11 statement in which the NFL said, “after reviewing the record, and having considered the views of the independent advisors, the commissioner determined that the credible evidence established that Elliott engaged in conduct that violated NFL policy.”

If Elliott pursued a defamation lawsuit, he would assert that his name and reputation have been badly sullied and irreversibly tarnished. Elliott would argue that even though he wasn’t criminally charged for alleged domestic violence and even though Kia Roberts, the only NFL investigator who spoke with Elliott’s accuser (Thompson), doubted the allegations, he is now regarded as an abuser of women. While a defamation lawsuit would not get Elliott back on the field—the only available remedy would be monetary damages—it might, if successful, to some degree help Elliott restore his image.

Elliott, however, would face a number of hurdles in a defamation lawsuit. First, as a public figure, Elliott would need to prove “actual malice.” To that end, Elliott would need to establish that not only were Goodell and the NFL wrong, but that they knew they were wrong and yet still proceeded to defame Elliott. To bolster that conclusion, Elliott might insist that Goodell went out of his way not to hear from key witnesses, almost in a “hear no evil, see no evil” approach.

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In response, Goodell and the NFL would assert that they reasonably drew their conclusions based on information learned in the course of the investigation. They would also highlight that Goodell was under no contractual obligation to meet with anyone in particular.

As another defense, the NFL would contend that player defamation lawsuits stemming from league punishments are “preempted” by collectively bargained language dictating that a player’s exclusive recourse to challenge a league punishment is through Article 46. In other words, a player can’t arbitrate and separately sue for defamation—he can only arbitrate and then petition a court to review the arbitration award. The NFL convinced U.S. District Judge Helen Berrigan of the merits of this legal argument when suspended New Orleans Saints linebacker Jonathan Vilma unsuccessfully sued Goodell for defamation in the aftermath of Bountygate.

Lastly, the NFL would invoke an argument based on the so-called “judicial proceedings privilege.” As a general matter, this privilege exempts from potential defamation lawsuits certain statements made by parties during legal proceedings. The league would contend that statements made in the course of investigating and punishing Elliott were done in contemplation of the possibility that Elliott, if suspended, would sue the NFL over the suspension.

Elliott would also need to be cautioned that if he brings a defamation lawsuit, he should be prepared for pretrial discovery. As part of that process, he would have to turn over evidence, such as texts and emails, to the NFL. The league lacked the subpoena power when it previously investigated Elliott. Through pretrial discovery, however, the NFL could demand a more expansive scope of materials from Elliott. Those materials might reflect poorly on Elliott and, if so, further damage his image.

The MMQB will keep you updated on the latest developments in the Elliott legal saga.

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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