Ezekiel Elliott’s case is really the first skirmish in the next CBA negotiation

The legal battle over Ezekiel Elliott’s suspension for domestic violence continues to play a large role for the Dallas Cowboys this season. It is a concern for fans of the Cowboys, it is a direct threat to the future of Elliott as a player, and any time missed by him would certainly be detrimental to the team. The huge role he played in the 40-10 demolition of the San Francisco 49ers is certainly proof of his value on the field. (At the moment, he will be available at least one more game, against division rival Washington.)

Despite some rumors about possible settlements (which seem to be more smoke and mirrors than anything else), this is almost certainly going to play out as far as it can. The NFLPA is fully involved, and this is about much more than just protecting the rights of one player it feels needs to be protected, or the union’s membership as a whole.

This is the first volley in the coming battle over the next collective bargaining agreement (CBA).

While Elliott is obviously concerned with clearing his name and reputation, the union is after much more. This particular battle, for the NFLPA, is not about Elliott’s guilt or innocence in the domestic violence case for which he was accused. It is about the process the NFL follows under Article 46 of the CBA. More specifically, it is about the contention of the NFLPA that commissioner Roger Goodell has abused the powers he is granted under that article.

This is nothing new. The union contended that he also abused his power in the Tom Brady deflategate case, but the powers of the commissioner in areas of discipline go back much further. Per Pro Football Talk:

But the powers at issue in this case — the ability to safeguard the integrity of the game — has been around since the very first Collective Bargaining Agreement between the NFL and the NFLPA in 1968. Which means that the first NFLPA president (John Mackey) and executive director (Ed Garvey) agreed to allow the Commissioner to impose the discipline and to designate the hearing officer (including himself) to handle any appeal regarding matters relating to conduct detrimental to the integrity of, and public confidence in, the game of professional football.

This raises the question: Why was this never an issue for almost half a century, but now has led to two major court cases in the past three years? The answer seems to boil down to a couple of things.

One is that the league was forced to answer to the court of public opinion about the issue of domestic violence after the Ray Rice case. The response of the NFL is now being debated, and could indicate that they ventured into an area of criminal justice that it is unable to handle. Three separate judges along the trail of the NFLPA’s appeals in Elliott’s case have questioned the fairness of the proceedings.

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.”

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These factors all led to a very strong conclusion from Judge Mazzant regarding Elliott’s likelihood of winning the case when a final ruling is issued: “The circumstances of this case are unmatched by any case this Court has seen. . . . Fundamental unfairness infected this case from the beginning, eventually killing any possibility that justice would be served.”

Although the NFL continues to take the stance that a collectively bargained agreement is paramount in such cases, there is now evidence of a real conflict between the powers being exercised by the league and the constitutionally protected rights of its players.

The other factor is Goodell himself. In the Elliott case, the NFLPA is contending that he conducted the investigation and reached his decision in a manifestly unfair manner that stacked the deck against Elliott and furthermore tried to exclude exculpatory information from the process. Additionally, there is a contention that Harold Henderson served not as an impartial arbiter in the hearing he conducted, but as an arm of the NFL whose job was just to rubber-stamp Goodell’s decision. Again from Pro Football Talk:

As of November 2014, Henderson had handled 87 player appeals since 2008. Still, the union consistently has objected to Henderson’s appointment.

“A long-time NFL Executive and current legal consultant cannot, by definition, be a neutral arbitrator,” the union said in a statement released to PFT three years ago, in connection with the decision to appoint Henderson to handle Adrian Peterson‘s Personal Conduct Policy appeal.

There are also those that feel that the Elliott case was a result not of the merits of the case, but of Goodell’s own desire to exert almost total power over disciplinary issues. Sally Jenkins wrote this for the Washington Post.

Roger Goodell always makes the same mistake: He prizes his own authority over fairness to others. This is a psychological flaw, not a legal principle, and the NFL ought to quit defending it in court.

The pattern is well-established: The commissioner commits needless small acts of despotism that wind up causing federal litigation sieges and harm the league’s integrity rather than sustain it.

What would it have taken to give the Dallas Cowboys’ Ezekiel Elliott a fair hearing against accusations of domestic violence? Not much. Just something shy of a total Orwellian mind-screw. Instead, the case has become a typical morass, a perfect example of the rigged process over which Goodell presides. Judge Paul A. Crotty of the Southern District of New York not only delayed Elliott’s six-game suspension Tuesday evening, but did so with a sharply worded ruling that found “significant issues implicating the fundamental fairness of the arbitration proceeding.”

At this time, the available facts seem to indicate that the NFL chose to press ahead with the domestic violence case despite some flaws. The main issue is the credibility of the accused and the accuser. Goodell and certain members of his staff seemingly chose to accept the word of the latter and discount those of Elliott. Clarence Hill Jr. put it this way for the Ft. Worth Star Telegram.

In deciding to suspend Dallas Cowboys running Ezekiel Elliott for six games for violating the personal conduct policy, the NFL clearly believed the domestic violence accusations of his accuser, Tiffany Thompson, more than it did his claims of innocence.

Yet subsequent reporting, also by Hill, revealed that the NFL’s own investigator Kia Roberts had recommended no suspension because of questions about Thompson’s credibility.

Roberts recommended no suspension for Elliott following her interviews with Thompson during the investigation — a fact Roberts testified to during the appeals hearing with Henderson, according to a source.

Roberts’ recommendation of no discipline is the main reason Cowboys owner Jerry Jones expressed so much confidence in the case until the NFL announced the suspension on Aug. 11.

Jones was told by a top NFL executive that there would be no suspension, according to a source.

Had the NFL instead realized the issues involved there and gone with a different approach, such as issuing a lesser suspension over a pattern of behavior rather than sticking to the domestic violence issue, they likely would have left Elliott’s camp with no real grounds for taking this to court, or almost no chance of winning if they did. However, the path the league went down has now inadvertently handed the union something it has long sought: A way to attack the CBA, with the bonus of a chance to get Goodell on the stand under oath.

The perception after the last round of negotiations was that the NFLPA caved in the last CBA negotiations. From the Boston Globe:

Patriots owner Robert Kraft and then-Colts center Jeff Saturday created the defining moment of the 2011 offseason when they embraced in a bear hug at a news conference announcing the end of the NFL lockout and the agreement of a 10-year collective bargaining agreement.

Almost exactly two years have passed, and now that the realities of the CBA have set in, Saturday might want to take that hug back.

No matter how you slice it, the owners obliterated the NFL Players Association and new executive director DeMaurice Smith in the 2011 negotiations.

Its membership was unprepared to continue the lockout, and as a result the current CBA seems tilted rather decidedly in favor of the owners. That rankled the union and its leadership. Now, they have have an opportunity to strike a blow at the powers of the league office years before the actual negotiations begin on the next CBA. If the NFLPA and Elliott’s team prevail in this case, something that is looking more likely as more and more judges weigh in on the underlying issues, it will have large repercussions.

Should Elliott’s side prevail (never a given, since judges and courts are tough to predict), the disciplinary system under the CBA will have to be changed unless the NFL wants to wind up right back in court over the same issues. If things continue the way they have in the courts, the NFLPA would certainly be emboldened to keep challenging things. It may lead to a rewriting of Article 46, and will at least force some significant changes in how things are done by the NFL and the commissioner. In any case, it will essentially be a win for the NFLPA and will have to be reflected in the new CBA, which is not due until 2021.

This is also the real reason the NFL is fighting this vigorously. They see that they have by far the most to lose in this. If they should win, they have essentially just preserved the status quo. The NFLPA has a chance to do some real damage to the power the league wields under the current CBA, and to maintain that advantage in the coming negotiations. It is one less place the NFL can insist on a quid pro quo for any concessions.

The NFL and NFLPA are unfortunately locked in the adversarial and contentious labor-management relationship that prevails in America. Wiser heads might seek to find a more collaborative approach in a situation where increased revenues benefit both sides, but that is not something that is likely to happen.

For now, the NFLPA smells blood in the water and is not going to back off. Neither is the NFL. There is too much at stake, far beyond whether or not Elliott will miss games this season.