August 13, 2017
The NFL has botched a number of domestic violence investigations over the past few years unleashing a public relations nightmare for the league. A seemingly contrite Roger Goodell pledged to do better after public outrage from the Ray Rice fiasco nearly cost the NFL a lucrative Anheiser Busch relationship. Part of his new “get tough plan” included a baseline six-game suspension for first-time domestic violence offenders. Then last year he reduced that suspension for unknown mitigating circumstances to a mere one-game suspension for Giants’ kicker Josh Brown; that is until Brown’s own journal admitting abuse surfaced in the media. Another firestorm of public rage erupted, again bringing into question the NFL’s seriousness in regard to domestic violence. The NFL needed to get the next one right. Enter Ezekiel Elliott.
On Friday, the NFL announced a six game suspension for Elliott after more than a year of investigation into accusations stemming from a series of incidents that took place between Elliott and his former girlfriend Tiffany Thompson during the week of July 16, 2016. Though Elliott had not yet played his first game for the Cowboys at the time of the incidents, he had been drafted by the team in April and was therefore under contract and bound by the terms of the league’s collective bargaining agreement.
Thompson alleges several acts of physical violence perpetrated by Elliott; Elliott denies the allegations. Columbus, Ohio police declined to press charges due to insufficient evidence and conflicting testimony, but this is not unusual in domestic violence cases. In and of itself a lack of charges does not necessarily imply that nothing took place, but rather law enforcement was unable to determine exactly what did occur. Typically when testimony of victims and the accused and/or witnesses conflict, and law enforcement does not observe the act in progress or a video of the same, they are unable to determine a primary aggressor or at least gather sufficient evidence for a district attorney to present the case to a grand jury in order to procure a criminal indictment.
The length of time involved in the NFL’s investigation of the matter involving Elliott has faced a great deal of scrutiny. On July 20, Dan Patrick indicated that several owners wanted to see Ezekiel Elliott suspended. If this is correct; it wouldn’t be the first time owners have influenced league investigation outcomes. According to Chris Russo of Sirius radio several owners divulged after a spring meeting that they were after the league’s winningest owner, Robert Kraft during the Deflategate debacle; would it be a stretch to believe that some would have similar feelings about Jerry Jones, who owns the leagues most valuable franchise? According to radio host Dan Patrick, “There is a faction of owners out there who are pressuring NFL commissioner Roger Goodell to punish Elliott in some form or fashion because of previous punishments handed out to other teams.” Speculation swirled in the final weeks leading up to the announcement of Elliott’s suspension. Would it be harsh, or a mere token? Would it be motivated by a sincere desire to deal with domestic violence or a need for some good PR?
The NFL statement, announcing his suspension said all the right things, regardless of the motivation behind the punishment. This time Commissioner Goodell went with the baseline suspension of six games for a first offender. The statement cites witness interviews, including that of the victim, “photographic and digital evidence, thousands of text messages and other records of electronic communications.” The commissioner also sought input from a panel of four expert advisors: former New Jersey Attorney General Peter Harvey, Hall of Fame member Ken Houston, The Women of Color Network CEO Tonya Lovelace and former U.S. Attorney Mary Jo White. Per the statement:
In a letter to Elliott advising him of the decision, Todd Jones, the NFL’s Special Counsel for Conduct, said these advisors “were of the view that there is substantial and persuasive evidence supporting a finding that [Elliott] engaged in physical violence against Ms. Thompson on multiple occasions during the week of July 16, 2016.“
A short time later Elliott’s legal counsel issued their own statement disputing the NFL’s conclusions.
Reaction to today’s 6-game suspension for Ezekiel Elliott from his attorneys, Frank Salzano and Scott Rosenblum. pic.twitter.com/PFsQLvcME8
— Adam Schefter (@AdamSchefter) August 11, 2017
Possibly intentionally on the part of the NFL, the timing of the suspension has Elliott in something of a corner in regard to his options. According the NFL’s press release, “Elliott may appeal this decision within three days. If he does not appeal, Elliott’s suspension will begin September 2, the day of final roster reductions for NFL teams.” In this scenario he would miss the first six games of the Cowboys’ season. Should Elliott decide to appeal the discipline, which seems likely the suspension would presumably be stayed until Arbitrator Goodell (or his designate) rules on Commissioner Goodell’s decision, at which time the suspension if not vacated would become effective.
On Twitter, noted sports law attorney Daniel Wallach posed the possibility that Elliott might try to bypass the league appeal and go straight to court because of the timing issues.
With 31 days to go until Week 1, it will be interesting to see how NFL squeezes in appeal and ruling. Perhaps best move is federal court.
— Daniel Wallach (@WALLACHLEGAL) August 11, 2017
In this strategy Elliott would ask the federal court for an injunction, which if granted would put the suspension on hold until an appeal is final, but in a follow-up tweet, he acknowledged that Elliott’s likelihood of success in that regard would be slim.
Problem with potential Zeke lawsuit: federal courts don’t like interfering with pending arbitrations. Ripeness issue.
— Daniel Wallach (@WALLACHLEGAL) August 11, 2017
I spoke with Wallach by phone to discuss Elliott’s legal options. He felt the most likely scenario is that Elliott will appeal the discipline to the commissioner as established in the collective bargaining agreement. A hearing would then be scheduled within ten days where Goodell or his appointee would hear any evidence Elliott and the NFLPA wish to present.
The only time frame specified for the time in rendering a decision in the CBA is “[a]s soon as practicable,” which could leave Elliott suspended at any point in the season. A lengthy delay would likely lead to speculation regarding intent to further hurt the Cowboys’, at least from their fan base, but as Wallach quickly pointed out, “if the NFL over-expedites the appeal and issues a ruling too quickly, it will have the odor of a predetermined result.”
A race for the courthouse would then ensue. Two years ago when Arbitrator Goodell upheld Commissioner Goodell’s 4-game suspension of Tom Brady, the NFL immediately filed a federal lawsuit in the Southern District of New York, asking the court to uphold Brady’s suspension. The Southern District of New York, has strong legal ties to the NFL, since that is the location of their corporate offices; rulings in that district have also typically been favorable for the NFL. And despite Judge Richard Berman’s surprise decision to vacate Goodell’s arbitration, the Second Circuit Court of Appeals reversed Berman creating powerful precedent for the district courts in that judicial circuit.
Although Brady quickly filed a lawsuit in Minnesota district court, where decisions had typically been more favorable to players, the lawsuit had no true ties to Minnesota and was moved to New York.
In Elliott’s case, a similar scenario would probably develop. Since the NFL is aware of the time that their arbitration ruling will be released, they have a jump on Elliot to the court and could possibly file in SDNY to head off Elliott as they did Brady.
“Elliott and the NFLPA are not going to touch the Southern District of New York with a ten-foot pole,” Wallach said, pointing out that Minnesota is probably out as well due to the circuits trying to cut down on venue shopping, as the case must have legitimate ties there. “Elliott’s most viable options would either be in the Northern District of Texas or maybe in Ohio, where the incident took place,” Wallach informed, adding, “Ohio seems to be a favorite forum of those taking on the NFL.”
If Elliott is successful in having his case heard outside New York, I asked if the Second Circuit’s precedent, which for all practical purposes leaves Goodell’s power as a non-neutral arbitrator completely unchecked, would be binding in a different circuit. He said that it would be considered but would not be binding. “The Second Circuit decision is binding only to other lower federal courts within the same circuit,” he affirmed. “But, given that there are only two recent cases testing the scope of the commissioner’s power under the CBA and Article 46, those two cases being Brady and Peterson, it will likely be afforded great weight by another federal court.”
Once a case seeking vacatur of an arbitration award reaches a federal court, in order for the plaintiff to prevail, a procedural defect in the arbitration must be established and argued successfully.
Wallach feels that the timing of Elliott’s suspension might be a possible avenue for Elliott to pursue, along with the fairness issues presented by Brady and Peterson if Goodell presides over the arbitration and upholds his own disciplinary decision.
Guilt or innocence of the party does not come into play in a federal courtroom – only the correctness of the arbitration. Still Goodell seems to have his ammunition lined up for this case with his utilization of a respectable advisory panel as opposed to a “science for hire” corporation like Exponent, and a baseline suspension for a first-time domestic violence offense in contrast with an unprecedented suspension for an alleged equipment violation. Even if contradictory evidence is brought forth in Elliott’s case however, and it is not given weight in the arbitration, it would likely have no bearing, as both Second and Ninth Circuit precedents agree that the arbitrator can get it wrong and still be upheld if his actions are derived from the collective bargaining agreement. “The question isn’t so much the weight [Second and Ninth Circuit precedent] is granted but more importantly the arguments within the purview of one of the exceptions to arbitrator deference. He has to make the appropriate case,” Wallach explained.
In light of this, I asked if the Katzmann dissent in Brady might prove helpful to Elliott if the judge should lean toward his arguments. “If the judge was to lean favorably toward Elliott or against fairness of the commissioner’s power then Judge Katzmann’s opinion of dissent could be cited,” Wallach said, calling it “an interesting possibility.”
Elliott’s case is of great importance in two respects, that of challenging the commissioner’s unchecked authority and of how the NFL plans to deal with domestic violence in the future. Wallach pointed out how in Elliott’s case, the NFL went with the baseline suspension for a first offender, but didn’t take into account as extenuating circumstances (at least officially) his prior altercations in college nor the St. Patrick’s Day incident in which he exposed a woman’s breasts, nor the bar fight in which he is accused of breaking a man’s nose. The stern warning of possible banishment for a repeat offense was emphasized in the letter to Elliott.
“This is lined up to be sort of a resounding make-up call for all the other past incidences where the league was criticized for its handling of domestic violence time and again,” Wallach said. He found it “inevitable” that “eventually they were going to take a stance and be immovable from the baseline suspension; to do otherwise would have been another embarrassment.”
If the league is going to take on domestic violence, then it does, indeed need to be consistent in its application of discipline and transparent in its actions and investigations. Assistance, concern, and care for the victim would be a welcome reform also as sports psychologist Mitch Abrams pointed out on Twitter.
The help of the victim is the unsung question…a pound of flesh doesn’t treat trauma…
— Dr. Mitch Abrams (@MitchAbramsPsyD) August 12, 2017