Dallas Cowboys running back Ezekiel Elliott is facing a six-game suspension for violating the NFL’s Personal Conduct Policy. The NFL star and his legal team appealed the suspension on Aug. 29, but Elliott’s lawyers did not wait for a judgment from the arbitrator before filing a lawsuit against the NFL in federal court on Friday.
The decision made by arbitrator Harold Henderson in the appeal will decide if Elliott’s punishment is upheld or vacated. But the petition filed by Elliott’s team will seek for a temporary hold that allows Elliott to play regardless of Henderson’s decision until the lawsuit plays out.
Elliott’s suspension arises from allegations made by his former girlfriend, Tiffany Thompson, that he committed multiple acts of physical violence against her in 2016. The alleged violent acts include repeated altercations that occurred both before and after he was drafted from Ohio State in the 2016 NFL draft.
Elliott has not been charged with a crime relating to any of Thompson’s allegations, and many sources assert that her claims are untrue and contradicted by both affidavits and physical evidence.
However, even if there is no probable cause to charge Elliott, the NFL is not barred from disciplining the player. While appealing punishments and filing lawsuits are long processes that typically do not result in a favorable outcome for the player, that has not stopped players in the past from challenging the NFL’s penalties.
The NFL has the power under Article 46 of the NFL’s Collective Bargaining Agreement with the NFL Players Association to discipline a player who engages in “conduct detrimental to the integrity of, or public confidence in, the game of professional football.”
This provision gives NFL Commissioner Roger Goodell the right to investigate and issue punishments for various types of player conduct. Though Article 46 is rarely invoked as a way to discipline players, it has been at the center of several controversial punishments recently, including the suspensions of Ray Rice, Adrian Peterson and Tom Brady.
In a NFL statement, the league argued that for more than a year it conducted an extensive investigation into Tiffany Thompson’s claims, including conducting interviews, consulting with medical experts and examining photographs, digital evidence and text messages.
In a letter to Elliott advising him of the decision to suspend him, the NFL’s Special Counsel for Conduct Todd Jones said the NFL found “substantial and persuasive evidence supporting a finding that [Elliott] engaged in physical violence against Ms. Thompson on multiple occasions.”
Within three days, Elliott appealed the decision in accordance with Article 46, which states that Elliott must exhaust all administrative remedies provided by the CBA before pursuing a case in court. However, Elliott and his legal team filed a case in federal court before the arbitrator even released an order assuming the arbitrator would uphold the NFL sentence.
Both Adrian Peterson and Tom Brady filed federal lawsuits. However, both these players waited until after their administrative appeals were denied to request that a judge vacate the arbitration “award.” National Football League Management Council v. National Football League Players Ass’n, 820 F.3d 527 (2nd Cir. 2016); National Football League Players Association on behalf of Peterson v. National Football League, 831 F.3d 985 (8th Cir. 2016). Unfortunately for Elliott, the federal courts in both cases sided with the NFL.
The U.S. judicial system has agreed (most recently in the Tom Brady litigation) that the NFL has the authority to apply a disciplinary policy broadly, at its discretion, and with far less proof than would be required in a court of law.
Brady was able to stave off his suspension for a year after he challenged the charge in federal court alleging a procedural violation on the part of the NFL, and it looks like Elliott is following a similar legal strategy.
In Elliott’s lawsuit, he and the NFLPA focus on whether Elliott’s appeal in arbitration was prejudiced in a way that denied Elliott a right to fundamental fairness during the arbitration proceeding. The legal team is trying to invalidate a not-yet-delivered arbitration award based on the premise that it should be vacated under the doctrine of fundamental fairness within the Federal Arbitration Act.
The complaint alleges there was a league-orchestrated conspiracy to hide critical information — which would completely exonerate Elliott — from: Goodell, who imposed the discipline; the outside expert advisors who were appointed by the commissioner to counsel him on imposing discipline; the NFLPA and Elliott; the Dallas Cowboys and NFL fans.
Further, Elliott alleges in the complaint that “fundamental unfairness was compounded, multiple times, by denying Elliott the opportunity to confront his accuser and have her sit for cross-examination.”
This factor is especially important in the eyes of Elliott’s legal team as the Columbus City Attorney’s Office decided not to pursue charges in light of conflicting and inconsistent information “resulting in concern regarding the sufficiency of the evidence.” Although, as noted above, the standard for prosecution is much higher than the standard for the NFL to discipline players.
Elliott likely filed suit so quickly because if he had waited, the league may have filed the first lawsuit in a less favorable jurisdiction, much like the NFL did this with Tom Brady in 2016.
Elliott’s legal team is aware that the place where a case is heard often has a direct impact on the outcome, so the case was filed in federal court in Texas.
While it may be wise to escape the 2nd Circuit, it could also be damning to Elliott’s case. The failure to wait for the arbitrator to rule on the case could be viewed as a failure to exhaust administrative remedies under the CBA, resulting in a case that is not yet “ripe” for federal court.
Ultimately, Elliott’s case has a much different feel to it than cases in the past. His lawyers have developed evidence that creates the impression the league essentially framed a star player as a domestic abuser in order to advance a PR objective that the NFL is tough on domestic violence.
The NFL still gets a chance to respond to the lawsuit, and it is likely they will submit findings and paperwork that are equally as compelling as Elliott’s. Further, today the NFL asked the federal court to toss Elliott’s request because he did not wait for the arbitrator’s decision.
As we saw in the Brady litigation, fighting the NFL is a long, uphill battle, and it becomes even more difficult with the 2nd Circuit’s ruling giving Goodell power to act with broad authority, understanding though, this ruling will not be binding on the court hearing Elliott’s claim.
With Elliott’s suspension and potential lawsuit, the Cowboys are now preparing to start the season without their star running back. And unfortunately for the Cowboys and their fans, potential losses of other key personnel (drug violations for David Irving and Randy Gregory, drunk driving for Nolan Carroll and aggravated assault charges for Damien Wilson) will not be factors in mitigating Elliott’s punishment.