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  • After a number of appeals and injunctions, Ezekiel Elliott has dropped his case and will serve the remainder of his six-game suspension—ultimately, a loss for the NFLPA. Michael McCann wraps up the case.
By Michael McCann
November 16, 2017

Faced with long—if not improbable—odds, suspended Dallas Cowboys running back Ezekiel Elliott and the National Football League Players’ Association withdrew their lawsuit against the league on Wednesday. The withdrawal means that Elliott, who began his six-game suspension by missing last Sunday’s Cowboys-Atlanta Falcons game, will sit out the next five Cowboys games.

To be clear, Elliott withdrawing his lawsuit does not mean that the 22-year-old former Ohio State star admits to battering his ex-girlfriend, Tiffany Thompson. Elliott’s lawsuit was not about whether he committed such violence, accusations for which did not lead to criminal charges. In fact, Elliott continues to insist that the alleged incidents of domestic violence never happened. The lawsuit instead concerned whether NFL commissioner Roger Goodell lawfully came to the conclusion that Elliott battered Thompson and whether arbitrator Harold Henderson lawfully upheld Goodell’s reasoning.

For the NFL, Elliott standing down is yet another victory for the league’s much-maligned system of justice. Like Tom Brady and Adrian Peterson before him, Elliott could not convince federal appellate courts to read process rights into Article 46 of the collective bargaining agreement that the NFLPA did not obtain through collective bargaining. Each of these players—and their attorneys—argued that fundamental fairness compelled courts to vacate arbitration awards (rulings) that were based on seemingly flawed investigations, concealments of alleged evidence and roadblocks to cross-examining accusers. Yet none of the players convinced federal appellate courts to look past Article 46, which is worded in a way that suggests Goodell can investigate, punish and review player conduct exactly as he sees fit.

NFL
Ezekiel Elliott Suspension Has Dallas Cowboys Scrambling to Reset Offensive Identity

Why Elliott gave up without playing out his appeals

As detailed on Aug. 11, the day Goodell suspended Elliott, the league was poised to defeat any legal challenge brought by Elliott. For one, Article 46 provides nearly limitless discretion to Goodell. Additionally, the NFL knew that if it can litigate a challenge brought by Elliott in a New York federal court, the league would almost certainly prevail.

That certainty reflected precedent—namely, the 2016 ruling by the U.S. Court of Appeals for the Second Circuit in the Tom Brady case. The Second Circuit found it acceptable for the NFL to deny Brady an opportunity to review the league’s investigative notes. This is true even though accused persons normally have a basic right to review how an accusation was determined and even though the denial made it arguably impossible for Brady to rebut allegations that he had “general awareness” of a so-called football deflation conspiracy. The Second Circuit also reasoned that Brady had no right to cross-examine a key accuser, Jeffrey Pash, who served the co-lead investigator with Ted Wells. The Second Circuit came to these views because Article 46 didn’t say Brady had those rights.

During Deflategate, Cowboys owner Jerry Jones enthusiastically approved of Goodell possessing broad authority over disciplinary matters. “I think Roger tries to treat everyone fairly,” Jones noted. “He has to make hard calls.” From such a vantage point, Goodell using the discretion endorsed by the Second Circuit was exactly how the system should work.

The views of Jones clearly changed when Goodell had to make a “hard call” about another NFL player, Ezekiel Elliott. This was particularly so after Elliott, Jones and others learned that Kia Roberts—the lone NFL investigator who met with Thompson—didn’t believe Thompson. Further, the NFL’s investigation revealed that Thompson, who acknowledged obtaining an email address for “ezekielelliot sex vids,” contemplated a scheme that would have involved selling videos of her having sex with Elliott.

On one hand, Article 46 doesn’t say that Goodell had to endorse the view of his own investigator. This is true even if that investigator is the only person who actually met with the accuser. Nor does Article 46 say that Goodell must weigh the credibility or motivations of an accusing witness. In fact, under Article 46, Goodell could consider other evidence and perspectives and conclude that Elliott committed the acts.

To that end, there was photographic evidence of Thompson’s injuries, which she insists Elliott caused. Also, the fact that law enforcement didn’t charge Elliott doesn’t, by itself, prove his innocence: law enforcement is mindful that a charge only leads to a conviction if it can be proven beyond a reasonable doubt; questions about Thompson might have made prosecuting Elliott unlikely to succeed and thus undesirable to pursue.

On the other hand, it strikes many as unfair that Goodell would reach a conclusion that neither led law enforcement to press charges nor convinced Roberts of being true. It likewise strikes many as unfair that Elliott’s attorneys could not review some of the investigative evidence or cross-examine an accusing witness. Yet under Article 46 and the Brady ruling, Elliott seemingly had no right to such safeguards.

Therein lied the fundamental hurdle for Elliott: he had to distinguish his case from that of Brady not based on facts—the cases obviously involved different kinds of accusations—but on process. Elliott tried to raise such arguments in another federal forum, the Eastern District of Texas, by suing the NFL before the Henderson arbitrated Elliott’s appeal. Importantly, the Brady decision is not binding precedent in Texas; it is only persuasive authority. The strategy initially worked when U.S. District Judge Amos Mazzant, III, agreed with Elliott that he had been railroaded. But on appeal before the U.S. Court of Appeals for the Fifth Circuit, the NFL prevailed on timing grounds: Elliott sued before Henderson ruled and thus Elliott’s lawsuit was not yet ripe when Judge Mazzant reviewed it.

Meanwhile, the NFL sued Elliott in the Southern District of New York and relied heavily on the Brady precedent. While Elliott convinced U.S. District Judge Paul Crotty to grant a temporary restraining order that allowed Elliott to play for two weeks, U.S. District Judge Katherine Failla stopped Elliott’s case from advancing further. She did so by denying him a motion for a preliminary injunction that would have let him keep playing for multiple weeks and perhaps the rest of the season. Judge Failla repeatedly cited the Brady ruling. She did so in spite of Elliott’s attempts to distinguish his case: Elliott asserted that the NFL had wrongfully tried to conceal Roberts’ conclusions and had wrongfully denied Elliott a chance to cross-examine Thompson and Goodell. Judge Failla dismissed these arguments, noting that neither Article 46 nor the law supports them. Elliott lost again last Monday when the Second Circuit denied an injunction. While Elliott was granted an expedited hearing on Dec. 1, by which point Elliott will have sat out four games, Elliott has now decided to drop the case.

In short, Elliott’s legal strategy was determined much less by the facts in his case than by the ruling in the Brady case. And it is a ruling that heavily favors the NFL.


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If players want more fairness, they need a better CBA

Many players, fans and journalists regard Article 46 as fundamentally unfair. It basically lets Goodell decide on his own whether a player is guilty of an accusation and, if so, what the punishment ought to be. Article 46 does not take into consideration the severity of the punishment or the desirability of a neutral arbitrator to review a particular controversy. This is different from the NBA, where a suspension imposed by the commissioner that exceeds 12 games empowers the player to receive review by a neutral arbitrator. If the NFL adopted a similar system for suspensions that exceed 13 percent of the regular season, a suspension in excess of two games would warrant neutral arbitration. 

Alternatively, the NFLPA could demand that Article 46 list certain procedural protections. For instance, player could have an express right to review investigative notes. Or the league could be obliged to require that its investigators testify in arbitration hearings for player suspensions.

It seems clear that courts will not read such rights into Article 46. The NFLPA will thus need to negotiate for their existence. While the NFL and NFLPA could agree to a new personal conduct policy before the current CBA expires in 2021, it’s unclear what the NFL would want in return. Along those lines, the league is unlikely to “give away” authority without receiving value in return. Perhaps a longer regular season, stricter drug testing or player consent to a greater percentage of regular season games being played in other countries would serve as that value.

Assuming no such amendments to the current CBA surface, it is worth asking whether the NFLPA would fight hard for a new personal conduct policy in the next CBA. While Article 46 receives substantial media attention, relatively few players actually encounter it. It just so happens that some of those players—Brady, Peterson and Elliott—are stars and thus command headlines. But for the vast majority of NFL players, their concerns are likely more about policies that affect most players. Those policies include salaries, health care and retired benefits. It will be interesting to see whether Article 46 receives the same attention at the bargaining table as it does in the news cycle.

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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