HOW WE GOT HERE
Just like Tom Brady and “deflategate,” the Ezekiel Elliott suspension drama seems to be going on forever and it may not be over anytime soon.
After a panel of three judges on the 5th Circuit Court of Appeals, located in New Orleans, ruled that the NFLPA, who is suing on behalf of Elliott, didn’t have the proper standing to file a suit in Texas, the case has (mostly) shifted to the courts in New York where the NFL did file properly. The NFLPA filed their suit before the arbitration appeals process was finished, making their case not yet ripe for filing. The NFL on the other hand, filed right after the Harold Henderson arbitration appeals ruling was handed down, giving them proper jurisdiction. The NFL wanted the New York courts to hear the case since the Tom Brady ruling holds precedence over the case there.
NEW YORK, TRO AND INJUNCTIONS
Somewhat surprisingly, last night in the New York court, President Bush appointed Judge Crotty, who is standing in for a vacationing Judge Katherine Failla (Obama appointed), handed down a 14 day temporary restraining order (TRO) that allows Elliott to continue to play until a full hearing on a more permanent injunction is heard by Judge Failla at a later time.
While Judge Crotty’s decision to grant the motion could in part be to allow time for Judge Failla to hear an in-depth discussion of the elements of the injunction, it was a positive sign for the Elliott camp that he chose to admonish the NFL on the issue of “fundamental fairness” stating that the “NFLPA had raised significant issues implicating the fundamental fairness of the arbitration proceeding.” Section 10(a)(3) of the Federal Arbitration Act allows federal courts to vacate an arbitration award where “the arbitrators were guilty of misconduct … thereby amounting to a denial of … [the] fundamental fairness of the arbitration proceeding."
The Appeals Court in the Brady case, which is supposed to be binding precedent on the Elliot case, found that there may have been unfairness in the process used by the NFL in its handling of the Brady arbitration process, but the Collective Bargaining Agreement (CBA) between the players and the NFL granted Commissioner Goodell the right to be the judge, jury, and executioner. In the Elliott case, Judge Crotty stated that the issue of fundamental fairness is not entirely settled and that the court could still take the fairness of the procedures used in handing down a suspension into consideration. Essentially he was stating that if the process is so unfair, the arbitration award could be vacated and there may be distinctions between the two cases. This is a statement that flies in the face of the ruling of the Brady case.
When Judge Failla takes up the injunction hearing, she will be looking at four elements that must be met by the Elliott team. They are: 1) that there is a likelihood of irreparable harm with no adequate remedy at law (ie: money damages alone can't undo the harm); 2) that the balance of harm favors the movant (ie: Elliott is harmed more than the NFL if an injunction is not granted); 3) that there is a likelihood of success on the merits of the case (ie: that Elliott has a good chance of winning the case); and 4) that the public interest favors the granting of the injunction (ie: this is more of a formality in this case, but the NFL will try and argue that a potential domestic abuser shouldn't be allowed to play without discipline)
The injunction hearing will mainly come down to a battle over number 3 above, and whether or not there is a likelihood that Elliott can win the case at trial. Will Judge Failla agree with Judge Crotty (and the lower court judge in Texas) that the question of fairness is still unsettled, or will she determine that the precedent set in the Brady case is controlling here and Elliott would likely lose if the case did go to trial? The legal question here is what constitutes “fundamental” fairness and are you allowed to negotiate away that right?
SO IS ELLIOTT PLAYING OR NOT THIS YEAR?
If Judge Failla grants the injunction, Elliott plays all year, if she denies the injunction Elliott will miss six games since he doesn’t have any realistic options left to pursue.
As things stand now, my gut feeling is that the lower court will get this wrong; Elliott will get the injunction, play all year and we will be talking about this all over again during the off-season until her decision is eventually overturned on appeal. Judge Crotty is somewhat more conservative than Judge Failla, so I can see Failla weighing the likelihood of irreparable harm to Elliott’s career missing these games over the likelihood of success at trial, and allow for the trial to take place.
As I just mentioned, I expect the NFL to eventually win this case, since the CBA really does grant broad powers for Goodell to set the process of arbitration and discipline as he pleases. This is not a court of law and he doesn't have to allow Elliott to cross-examine his accuser, doesn’t have to share with Elliott’s team the notes of the accuser's interview or take into account some investigators opinion for process and the decision to be fair. The players got something in the CBA for the NFL to get this authority. Courts, in general, are loath to re-write and interfere with an arm's length negotiations. So if this clause of the CBA is essentially re-written in the player's favor, does NFL now get to share less money with the players? Does the NFL now get to add an 18th game? Like any negotiation, it is a give-and-take and the players gave this and took something for it, because the reality is, the overwhelming majority of players never face any sort of discipline under the conduct code.
OPTIONS FOR BOTH PARTIES BEYOND THE LOWER COURT CASE
If the NFL wins at the lower court in New York, Elliott misses 6 games. If the NFL loses at the lower court level, they will appeal the case to the same appeals court that upheld the Brady ruling. In the event that the NFL loses on that appeal, which is highly unlikely, they can then take this case to the Supreme Court since there would now be competing rulings on the issue of fairness in a collectively bargained arbitration clause, and the Supreme Court would be settling a matter of law that would have far-reaching implications on all management/labor disputes across all sorts of industries, not just football.
An additional option the NFL has at its disposal is to correct the procedural mistakes that court finds to be unfair and then hand down the suspension once again. Essentially the NFL will just go through the motions; Goodell will look at all the evidence, provide all the evidence to the Elliott team, and then make the same ruling. The NFL will not lose this case in the long run, but Elliott may only serve that suspension in 2018 or even 2019.
If Elliott is denied the injunction by Judge Failla, he technically still has a chance to re-assert jurisdiction in Texas by seeking an “en banc” hearing by the 5th Circuit Court of Appeals that just ruled that they didn’t have jurisdiction. An en banc hearing is an appeal of a ruling to all fifteen of the 5th Circuit judges. However, this is unlikely to be grated since these judges are very busy and they don't like overruling their fellow justices decisions. This sets a bad precedent and while this is a high profile case, this subject matter of this appeal, at the moment, is not an important matter of law and the case is not a dire one for Elliott (i.e.: it's a millionaire missing football games as opposed to some murder case, an oil pipeline ruining a water supply or an ongoing domestic violence issue, etc..)
Additionally, 9 of the 15 justices in the 5th Circuit are conservative and thus even if an en banc hearing is granted, it will probably still go against Elliott. The 5th Circuit is generally pro-business and pro-management, which favors the NFL.
Settlement (Updated 11/19)
Just when we thought we had a handle on things, a curveball is thrown that we should have seen coming. There is a report from Sportsday in Dallas that Elliott’s team and the NFL have had private discussions on a possible settlement.
There is no telling what exactly this will look like, or if the talks are actually happening, but perhaps Elliott agrees to just a 2 or 3 game suspension, possibly counseling and they put this whole episode to bed. Elliott can move on with some certainty and save some face, and the league can avoid a possible challenge to their ability to punish under Article 46, while also ridding themselves of at least one negative story line in a season filled with protest.
A settlement makes sense for both sides; however the NFL has to be careful Elliott doesn’t get into any further trouble, otherwise this will be a very bad look once again on the domestic violence front, as we saw when the league reduced the suspensions of Ray Rice, Greg Hardy and Josh Brown, only for it to blow up in their faces.
CONCLUSION
For those of you that don’t care about the details and just want to know if Elliott will be playing this year, here you go:
- 75% chance Elliott gets an injunction allowing him to play all year.
- If this goes to trial in the lower court, I think there is greater than 50% chance Elliott wins in the lower court. This case will take months to finish not endangering his availability for the 2017 season
- 90%+ chance the lower court decision is overturned on appeal and Elliott is suspended for 6 games during the 2018 season.
- If the settlement talks are true and serious, a possible deal is certainly viable, in which case a 2 or 3 game suspension makes sense.
- Who is the handcuff to Elliott for those that are risk averse? I think Darren McFadden would get the bulk of carries, with Alfred Morris seeing around 6-12 a game.
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