Written By Michael Varrige
Background
In mid-August, the NFL suspended Dallas Cowboys Running Back Ezekiel Elliott for an alleged July 2016 domestic assault. Despite Elliott’s continued denial of the allegations made by the alleged former girlfriend, Elliott and the NFL have been engaged in a legal battle since his appeal to the NFL arbitrator. The appeal to the arbitrator, which was the first step in appealing his suspension under the NFL Collective Bargaining Agreement (“CBA”), was denied. Elliott then filed suit in the United States District Court for the Eastern District of Texas, asking for a preliminary injunction and alleging a fundamentally unfair suspension appeal hearing. The court granted his preliminary injunction, the NFL appealed, and now the parties await a ruling from the Fifth Circuit.
Discussion
Elliott was a rookie sensation during the 2016 NFL season, bringing an energy to “America’s Team” that had previously been lacking. The Cowboys finished 13-3, won the NFC East, and advanced to the playoffs, eventually losing in the divisional round to the Green Bay Packers.
Before all of the hype surrounding the rookie, however, Elliott was accused of assaulting his alleged former girlfriend in Columbus, Ohio, just a few months before the season started. While prosecutors declined to prosecute the case because of conflicting evidence, that did not stop the NFL from pursuing a year-long investigation, culminating in a six-game suspension penalty.
The NFL’s Personal Conduct Policy provides that Roger Goodell, as NFL Commissioner, may suspend players without a criminal charge, arrest, or conviction, but may only do so “when credible evidence establishes that the player engaged in conduct prohibited by the policy.” Upon a review of the record, an interview with Elliott, and the investigation report, Goodell decided to suspend Elliott for six games.
Arbitration
Pursuant to the CBA, an agreement to which both the NFL and the NFL Players Association (“NFLPA”) are parties, Elliott appealed this suspension to the arbitrator, who had to decide whether Goodell’s decision was arbitrary and capricious.
Within Elliott’s appeal to the arbitrator were requests to have his accuser available for cross-examination, to have the NFL investigator’s notes made available to him, and to have the NFL investigator testify at the hearing. Only the third request was granted, and with credibility of the parties and evidence playing a central role in the dispute, Elliott and the NFLPA questioned the arbitrator’s denials. In addition, the hearing revealed that the NFL investigator, like the Ohio prosecutor, recommended no sanctions against Elliott, due to credibility issues and conflicting evidence. Arbitration ended on August 31, 2017, and the NFLPA brought suit in the Eastern District of Texas the following day.
U.S. District Court for the Eastern District of Texas
Under Rule 65 of the Federal Rules of Civil Procedure, “[e]very order granting an injunction and every restraining order must: (a) state the reasons why it issued; (b) state its terms specifically; and describe in reasonable detail . . . the act or acts restrained or required.” Furthermore, “a plaintiff seeking a temporary restraining order must show: (1) a substantial likelihood of success on the merits; (2) a substantial threat that plaintiff will suffer irreparable harm if the injunction is not granted; (3) the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) the injunction will not disserve the public interest.”
Elliott appealed to the District Court for a preliminary injunction to allow him to keep playing until his lawsuit against the League was completed and a final decision was returned. In his argument, Elliott asserted that he had a substantial likelihood of success on the merits because of the denial of access to the NFL investigator’s notes, the lack of opportunity to cross-examine his accuser, and the inability to question Goodell about his decision-making process, amongst other things. Traditionally, these types of decisions are left to the discretion of the arbitrator; therefore, if a court is asked to review these decisions, the question is “whether the arbitration proceedings were fundamentally unfair.” Here, the Court found such unfairness and misconduct that it stated, “The circumstances of this case are unmatched by any case this Court has seen.”
As to the second element, the Court held that Elliott would be irreparably damaged by the suspension, on the basis that six games is a significant part of the NFL’s sixteen-game season. Such a suspension, according to the Court, would deny Elliott the chance to achieve statistical honors, due to the limited window that professional athletes have the opportunity to play.
For the third element, the NFL argued that it would suffer procedural harm if Elliott’s injunction were to be granted because “the NFLPA and NFL have an agreed-upon internal procedure that will be eviscerated by an injunction in this case.” The Court did not find this argument persuasive, as they held that this did not shift the balance of hardships, nor did it impact the public interest factors required in a preliminary injunction ruling.
Consequently, the District Court granted the preliminary injunction, and Elliott played in Week 2 of the NFL season (when, in the alternate, his suspension would have gone into effect). The District Court also denied the NFL’s motion for an emergency stay of the injunction.
U.S. Court of Appeals for the Fifth Circuit
The NFL has since appealed the case to the Fifth Circuit Court of Appeals, asking for an emergency stay of the preliminary injunction. The stay would allow the suspension to go into effect during either Week 3 or Week 4 of the NFL season.
In its appeal, the NFL asserts three main arguments: (1) the NFLPA did not allow for the arbitration to finish before it filed suit; (2) the CBA’s requirements for an appeal hearing were satisfied by the NFL’s process; and (3) the lawsuit is a misuse of the court system and could allow every player the NFL suspends to file suit before their arbitration has ended.
One of the CBA provisions states that arbitration is the “exclusive and final remedy,” which means that the NFLPA and the players cannot go to the courts until the arbitration has concluded. The NFLPA filed suit the day after the close of arbitration, and the preliminary hearing occurred on the same day that the decision was handed down. This argument was addressed by the District Court when it cited an exception to this rule recognized by both the Fifth Circuit and the Supreme Court, namely, that exhaustion is not required if the employer’s conduct amounts to a repudiation of the remedial procedures specified in the contract. The District Court used the denial of evidence to support the claim that the NFL and Commissioner Goodell’s conduct fell under this exception.
As to the second argument, the NFL argues that Elliott had all relevant evidence in the form of affidavits, testimony from the NFL investigator on the case, and the reports that Goodell used to make his decision. Consequently, the NFL argues that a player need only be represented by counsel, permitted the opportunity to provide relevant evidence, and provided a promptly-issued decision, all of which the NFL alleges occurred. This argument may fail, however, if the Fifth Circuit focuses on what some would call the procedural short falls of the arbitration hearing, perhaps most notably the denied request to cross-examine Elliott’s accuser and the denied request to have Goodell testify.
The third argument asserted is that, while the NFL itself may not suffer more irreparable harm than Elliott could personally, a victory for Elliot would encourage all suspended players to sue in their preferred locations and perhaps postpone their suspensions. This could be used in a strategic way to allow players to serve their suspensions at a more advantageous time during their seasons and, additionally, it could undermine the CBA’s process and the private settlement of labor disputes. The NFL further argues that the public has an interest in preventing domestic violence and allowing the Commissioner to attempt to deter this behavior.
The NFL requested that relief be granted by September 26th, but there is no mandate that that Fifth Circuit abide by the NFL’s request, and there is also no guarantee that the Fifth Circuit will rule in favor the NFL. It will be interesting for NFL fans and players, as well as labor and contract law enthusiasts, to see how this litigation is settled. Nevertheless, one thing is for sure: we have not heard the last from Ezekiel Elliott, the NFLPA, the NFL, or the courts on this issue.
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Sources Cited
Judge Denies NFL’s Emergency Stay Request in Ezekiel Elliott Case, ESPN, (Sept. 18, 2017).
Michael McCann, Ezekiel Elliott’s Legal Saga is Just Getting Started, Sports Illustrated, (Sept. 6, 2017).
NFL Players Ass’n v. NFL, 2017 U.S. Dist. LEXIS 146027 (E.D. Tex. 2017).
Schuyler Dixon, Judge Blocks Ezekiel Elliott’s 6-Game Suspension Over Domestic Violence Case, Chicago Tribune (Sept. 8, 2017).
Schulyer Dixon, NFL Trying to Speed Appeal over Blocked Ezekiel Elliott Suspension, The Denver Post, (Sept. 14, 2017).
Will Brinson, The NFL Wants an Ezekiel Elliott Ruling by Sept. 26 and has a Good Argument, CBS SPORTS (Sept. 15, 2017).