If you’ve been following the Ezekiel Elliott saga—strap in, as this case has by now crossed the “saga” threshold—you might be a bit confused as to what the flying fuck is going on.
There have been investigations, hearings, reports, a suspension, appeal hearings, court filings, an arbitration decision, court proceedings, lawsuits, and an ongoing mystery about whether Elliott can play this season, and when. It’s enough to make anyone wonder whether the NFL schedule ought to be replaced by a 3L class syllabus. So let’s try to suss out where it all stands, and what may be yet to come.
Let me get this straight: Elliott is suspended for six games, but he’s also going to play Sunday night against the Giants. What gives?
Two parallel events transpired Tuesday, pretty much simultaneously. On one hand, Harold Henderson—the arbitrator hand-picked by the NFL—upheld Elliott’s six-game suspension, which had been handed down last month by commissioner Roger Goodell. But just before Henderson issued his ruling, the league decided Elliott could play Sunday because the timing of Henderson’s decision remained an open question into Tuesday evening. Never let anyone tell you the NFL isn’t fair. (That last sentence is a lie.)
Now what?
As things now stand, Elliott could well be suspended from Week 2 through Week 8. The Cowboys’ bye is in Week 6, which means Elliott could be out until Week 9. But the NFLPA anticipated this and filed for a temporary restraining order in federal court in the Eastern District of Texas. There was a hearing there involving that motion on Tuesday, and Judge Amos Mazzant is expected to issue a ruling by Friday at 6 p.m. ET.
Which means what?
If Mazzant denies the injunction TRO, Elliott would be set to begin serving his suspension next week. But because Elliott’s lawyers have issued a statement saying Elliott is “looking forward to having his day in federal court,” there likely would be a request for an injunction.** And if that were to fail, this thing could be headed to the Fifth Circuit Court of Appeals.
And if the judge grants the injunction TRO?
As the Dallas Morning News noted, Elliott would likely be able to play for the entirety of the 2017 season. And as Sports Illustrated legal expert Michael McCann further pointed out, Mazzant could issue a preliminary injunction that “could conceivably last the entire 2017 season” as the courts sort everything out.*
Because that would be the end of it?
LOL, no. Because whatever appeals are sure to come next would most likely take too long to navigate. This is a game that’s still in the first quarter.
What would come next if the injunction TRO is granted, then?
According to this, any one of three things:
- The league could seek a stay from the Fifth Circuit.
- Goodell could place Elliott on the exempt list, as he did during the Adrian Peterson saga. The exempt list is the NFL’s version of administrative leave. But if the league were to choose this avenue, the NFLPA could turn around and seek another injunction to stop it, because that’s how this goes.
- The NFL could seek to have this play out in a different court, namely the Southern District of New York, a venue that’s been more favorable to the league in the past. (Tom Brady’s suspension was overturned there, though it was eventually upheld by the Second Circuit Court of Appeals.) And, hey, the NFL has already filed suit against Elliott in the Second Circuit. ’Round and ’round we go.
Which means what?
Traditionally, cases like these play out in whichever jurisdiction a suit was first filed. The NFLPA struck first in East Texas. But according to the league, the union sought relief prematurely, since it acted before Henderson issued his arbitration decision. Touchdown, billable hours.
Yowza.
Yeah. Like I said, this thing’s a saga.
What’s at issue at this point? Like, what’s the NFLPA’s and Elliott’s fight all about?
The NFL suspended Elliott according to its personal conduct policy, which was revised in December 2014 to allow for discipline irrespective of any determination from the criminal justice system. The policy vests Goodell with broad authority on disciplinary matters, while also setting a standard of “credible evidence” as a baseline for discipline. Additionally, that same policy mandates a six-game suspension for a first offense of domestic violence.
Elliott’s lawyers and the NFLPA have argued—both in their arbitration hearing with Henderson and during Tuesday’s TRO hearing before Mazzant—that the league’s evidence wasn’t credible, which is at least a reasonable argument for a variety of reasons:
- Elliott’s accuser was never asked to testify under oath at any hearings.
- Witnesses who gave statements supporting Elliott but refused to testify were discounted.
- Only two of Elliott’s accuser’s six interviews with a league investigator were transcribed.
- The league’s own investigator did not recommend a suspension.
- That same investigator did not meet directly with Goodell to discuss any discipline.
- Henderson did not require Goodell to testify at the appeal hearing.
- Another league investigator found Elliott’s accuser not credible on two of the five incidents in question.
- The league’s own letter to Elliott informing him of his suspension cited the “substantial and persuasive” evidence against him, which has a different (and unclear) meaning than “credible.”
Yeesh. That’s a lot to sift through.
It is. And as Henderson said afterward in a statement, his job as arbitrator is not to review the case facts, but to determine whether the league adhered to its policy. “Here the process for imposing discipline outlined in the Policy has been followed closely, step by step,” Henderson wrote. (I hasten to remind you that Henderson worked for the league for many years. He is not a neutral arbitrator.) More important, the process outlined in the personal conduct policy reflects what’s in the CBA. It essentially amounts to “Whatever, as long as Goodell approves of it.” From the policy:
A disciplinary officer, a member of the league office staff who will be a highly-qualified individual with a criminal justice background, will follow the process outlined below to investigate a potential violation, produce a report and if desired present a disciplinary recommendation for the Commissioner’s consideration. The Commissioner will review the report (and recommendation if presented) and determine the appropriate discipline, if any, to be imposed on the player.
The words “if desired” and “if presented” in that paragraph are doing a lot of work. They allow Goodell to render a decision independent of whatever the league’s investigators may recommend. What he says, goes.
Wow. The union went along with this?
Uh huh. As The Ringer’s Kevin Clark wrote the other day, “When you talk to people who were involved in the most recent CBA negotiations, in 2011, you get the feeling that few things are more important to Goodell than disciplinary power. When the union brought up perhaps going to a neutral-arbitration model that would hand decision-making to a third party instead of Goodell playing judge-jury-executioner, the NFL made clear that it wasn’t a realistic option.” That’s why we’re here. Again.
Wait. Aren’t there issues with forcing Elliott’s accuser to testify under oath?
That’s been the league’s position, yes. And in just about any other abuse case, that would be true. But here, the argument is cynical. Remember, the league’s investigation was not done through the channels of the criminal justice system. Instead, it’s the NFL’s own kangaroo creation. As legal expert Stephanie Stradley explained, a standard court procedure would allow for sensitive evidence and testimony to be entered under seal. But that’s not the case here, because there’s no legal mechanism in play to ensure it.
“The NFL has tried to shift responsibility to the NFLPA for ‘victim blaming,’” Stradley wrote. “No, the entirety of this debacle of a policy is fully and completely on the NFL. ... In the real legal cases instead of this sham procedure, there are ways where privacy-invading information can be shielded from wide view.”
Another legal expert, Daniel Wallach, has noted that the rules of evidence are typically not as rigid for an arbitration hearing, but that the doctrine of “fundamental fairness” could be in play if the league were found to be refusing to hear evidence that is material to the issue at hand. And Frank Cawley, a lawyer and observer of the case who was in the East Texas courtroom for Tuesday’s injunction TRO hearing, noted that Mazzant seemed sympathetic to the issue of whether there was a “fundamental fairness” to the league’s process:
Wait. What does Cawley mean by the “issue the 8th circuit rejected”?
That’s a reference to the Eighth Circuit Court of Appeals’ decision, which held that Peterson’s 2014 suspension was lawful. That decision also essentially reaffirmed Goodell’s disciplinary discretion, which was found to be a matter of collective bargaining with the players’ union, and not something for the courts to determine. According to Cawley, Mazzant asked plenty of questions during Tuesday’s hearing about whether the league followed a coherent process before it chose to suspend Elliott. But there’s really no way to tell which way Mazzant will rule until he makes his decision.
Sheesh. What a mess.
Yup. And it’s going to drag on for a while. Strap in.