Another round of player v. Goodell

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Dallas Cowboys star second-year running back Ezekiel Elliott finished opening weekend with 104 rushing yards on 24 rushing attempts, tacking on an additional 36 receiving yards on 6 catches. Elliot’s season debut came as a bit of a surprise following over a year’s worth of investigation by the National Football League (NFL) into Elliott’s alleged violent assaults on a former girlfriend.

Since the allegations were directed at Elliott, the young running-back from Ohio State has been the subject of investigation by the NFL, been suspended for 6 games, and had the suspension temporarily enjoined through his challenging of the suspension in federal court. Elliott’s challenge of the suspension is only the most recent lawsuit filed against the NFL by a current player under suspension, and lawsuits from other similarly situated players in the future seems likely.

Investigation into Elliott’s conduct began in the summer of 2016, when sports news website Deadspin posted several screen-grabs of a series of Instagram posts by a woman named Tiffany Thompson. The photos depicted bruises on the young woman’s knees, wrists, forearms, and neck. The first post was a call to action, asking any woman in an abusive relationship to step away from the violence. The second post, which included additional photos of bruising, was directed toward Elliott by tagging his Instagram handle in the post description. This was as clear of an allegation as one could make, at least in today’s social media age.

Thompson soon after filed a complaint with the Columbus City Attorney’s Office alleging domestic violence by her boyfriend, Elliott, on 5 separate occasions. The Prosecutor’s division ultimately declined to approve the criminal charges for any of the 5 alleged incidents. The City Attorney’s Office stated “conflicting and inconsistent information across all incidents result[ed] in concern regarding the sufficiency of the evidence to support the filing of criminal charges.”

In other words, the Prosecutor’s division believed the witnesses to be untrustworthy, and/or the physical evidence to be weak or absent, to the point that the office did not feel that it could prove the charges beyond a reasonable doubt. This decision is well within the prosecutor’s discretion. It should be noted, however, that a decision to disapprove criminal charges is not an espousal of the suspect’s innocence.

It should also be noted that the NFL is quite familiar with allegations of domestic violence by its players. In the last few years, several high-profile players such as former Baltimore Ravens running-back Ray Rice, former Dallas Cowboys and Carolina Panthers defensive-lineman Greg Hardy, and former New York Giants kicker Josh Brown have all been the subjects of suspension, and essentially blacklisting, for their clear and undeniable violent actions against women.

The NFL’s Collective Bargaining Agreement (CBA) authorizes NFL Commissioner Roger Goodell and the League office to conduct investigations into potential violations of the League’s Personal Conduct Policy.

In Elliott’s case, the lack of criminal charges did not stop the NFL from conducting its own individual investigation into the allegations and punishing Elliott with a 6-game suspension. The NFL’s Collective Bargaining Agreement (CBA) authorizes NFL Commissioner Roger Goodell and the League office to conduct investigations into potential violations of the League’s Personal Conduct Policy. The League can effectuate investigations by way of use of its own security personnel, independent parties, or a combination of the two.

The League may use essentially any information they can find through its individual investigations to lead it its ultimate decision. Important to remember is that the Fifth Amendment’s protection against self-incrimination does not apply to workplace investigations, so the NFL can compel a player to cooperate fully in the process and can punish the player for any noncooperation or obstruction.

The NFL announced on August 11, 2017 that Elliott would be suspended for 6 games following its investigation into Elliott and the surrounding allegations. Specifically, the League stated it had found “substantive and persuasive” evidence that Elliott was violent towards his ex-girlfriend, Tiffany Thompson. Elliott responded by filing a lawsuit, along with the NFL Players’ Association (NFLPA), in the United States District Court for the Eastern District of Texas. The Plaintiffs demanded the court vacate an anticipated arbitration decision by NFL hearing officer Harold Henderson. Elliott also filed a separate petition for a temporary restraining order (TRO) that would enjoin the League from enforcing the 6-game suspension.

United States District Court Judge Amos L. Mazzant III granted a request by the NFLPA for a preliminary injunction, putting on hold the 6-game suspension while Elliott’s case is pending. The ruling was made on September 8 following the September 5 hearing in which the NFLPA argued that Elliott would be irreparably harmed if he were forced to sit out during the challenge of the suspension. Judge Mazzant also endorsed the temporary restraining order (TRO).

The court stated that based upon the preliminary injunction standard, Elliott did not receive a fundamentally fair hearing, necessitating the granting of the injunction. As noted by ESPN’s Michael McCann, injunctions are considered “extraordinary measures in law” and Elliott had to prove four necessary prongs to obtain injunctive relief. Those four prongs are: 1) he enjoys a substantial likelihood of success of proving that the NFL unlawfully conspired against him; 2) there is a substantial threat that Elliott would suffer irreparable harm if the judge does not grant the TRO (this harm typically refers to harm that cannot be remedied through monetary damages awards); 3) the injury Elliott faces without the TRO outweighs the potential damage to the NFL caused by the injunction; and 4) an injunction in favor of Elliott and against the NFL would not be against the public’s interest.

Judge Mazzant found that Elliott met all four of these prongs due to the “unique and egregious facts” and “extreme circumstances” which necessitated the granting of the injunction. The judge essentially reasoned that the steps that the NFL took and the decisions they made were so unfair that the granting of the injunction was absolutely necessary. It can be argued whether or not Elliott actually satisfied the four-prong test, especially with regard to prong two: that Elliott would suffer irreparable harm, but not the kind that could be remedied through monetary damages. Judge Mazzant was careful, though, to correctly lay out the law and analyze each of the four prongs with sufficient justification.

Elliott is likely going to be free to play the rest of the season for the Cowboys with the chance of having his suspension reinstated for the 2018-2019 season.

The League has, of course, appealed the granting of the preliminary injunction. The NFL filed its notice of appeal in the United States Court of Appeals for the Fifth Circuit on Monday, September 11. Argument will not likely be heard on this appeal for months though, meaning Elliott is likely going to be free to play the rest of the season for the Cowboys with the chance of having his suspension reinstated for the 2018-2019 season.

Underlying Elliot’s case and the cases of other players is an important question: whether the NFL should even be in the business of suspending players for off-field conduct, alleged or proven. No one can doubt that the NFL has the power to effectuate punishments pursuant to the CBA and the Personal Conduct Policy. The NFL is a private employer and employment disputes like this are often handled in-house. But just because the NFL has the authority to handle disputes of its players does not mean it is capable of doing so in a consistent and fair manner, though.

Perhaps the NFL truly has a sense of justice, but more likely, the multi-billion dollar industry simply wants to save face and look tough for the public. Players like Ray Rice, Greg Hardy, and Josh Brown, all mentioned above, are examples of players whose punishments included not only suspension, but also being put in the position of being blackballed by individual teams within the NFL. Their punishments likely reflect an economic balancing test of sorts; teams are refusing to sign these highly talented players because their off-field conduct would provide more of a detriment to their bottom line than their play would enhance the teams value. It can be argued that when the market creates its own punishments, the NFL’s central authority does not need to interfere. In many instances, fans’ voices and market considerations may do more justice than Roger Goodell can.