This post is written by Senior Editor John Roberts. Opinions and views expressed herein are those of the writer alone.
In late July, 2016, an ex-girlfriend alleged that Dallas Cowboys’ star running back Ezekiel Elliott committed multiple acts of violence against her that amounted to domestic violence. Weeks later, Ohio prosecutors announced that Elliott would not be charged with domestic violence, citing conflicting evidence gathered in their investigation. However, as Elliott soon would soon find out the hard way, the lack of criminal charges did not immunize him from discipline in the workplace. On August 11, 2017, over a year after the alleged incidents took place, the NFL suspended Elliott six games for a violation of their personal conduct policy. The suspension triggered a fascinating legal tug-of-war that has yet to conclude to this day. This post will explore the intricacies of that legal battle that has assuredly confused many NFL fans unfamiliar with the law, and attempt to hash out the likely outcome for Elliott.
To begin, it is important to note what gave the National Football League [“NFL”] the power to suspend Elliott despite Ohio prosecutors declining to press charges. As an employee of the NFL, Elliott is subject to the terms of the Collective Bargaining Agreement [“CBA”], the management-labor relationship entered into between the NFL and the NFL Players’ Association [“NFLPA”]. Article 46 of the CBA, titled “Commissioner Discipline”, empowers the commissioner to punish a player who engages in “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” The effect of Article 46 is that the NFL commissioner, currently Roger Goodell, is given widespread authority to determine what conduct is actionable under this section. In Elliott’s case, the NFL’s investigation yielded enough credible enough to convince the commissioner (and his four hired experts) that Elliott did violate the CBA’s personal conduct policy, leading to Elliott’s six-game suspension.
Next, before he could realistically file a lawsuit, Elliott had to utilize all administrative remedies available to him under the CBA. Pursuant to Article 46 of the CBA, Elliott was required to appeal the suspension back to Goodell. Article 46 instructs the commissioner to consult with the NFLPA and appoint a hearing officer to hear the appeal, reflecting a right collectively bargained for by the NFLPA. After the appeal hearing but before the hearing officer came down with a decision to uphold, reduce, or vacate Elliott’s suspension, Elliott joined with the NFLPA in filing a complaint against the NFL in the U.S. District Court for the Eastern District of Texas. The complaint, filed on August 31, 2017, sought that the court vacate any discipline upheld by the pending appeal pursuant to the CBA. The lawsuit was a “forum-shopping” tactic adopted by the NFLPA and its lawyers in attempt to have his lawsuit heard in a favorable court for him, a forum that avoided the U.S. Court of Appeals for the Second Circuit where the NFL could rely on favorable precedent in the Brady case a year prior. In addition to the filing of the complaint, Elliott filed a separate petition for a temporary restraining order [“TRO”] a day later. The TRO, if granted, would prevent the NFL from imposing any suspension until after the completion of the lawsuit.
It is important to note that Elliott’s success in court relied on him showing that the process employed by the NFL was badly flawed, not whether his conduct amounted to domestic violence against his former girlfriend. The TRO presented the first question to be decided in Elliott and the NFLPA’s lawsuit against the NFL. Under the Federal Rules of Civil Procedure, a plaintiff seeking a TRO 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.” This was an uphill battle faced by Elliott and his lawyers, as they had to convince a judge who had widespread discretionary power that all of the four factors were met. As to the first element, Elliott cited a number of shady tactics employed by the NFL that amounted to the NFL denying him of his rights in the appeal process, including the NFL’s obscuring of evidence that weighed in his favor and the denial of his ability to cross-examine his ex-girlfriend on appeal. Elliot also argued that he would be “irreparably harmed” without an injunction because even though monetary damages could make up for lost game checks, an NFL career lasts on average less than four years and missing part of the season could deprive Elliott of individual successes and honors. In siding with Elliott on the first two elements and finding that issuing an injunction does not eviscerate the internal procedures employed under the CBA, on September 8, 2017, the U.S. District Court for the Eastern District of Texas granted the TRO and – stunningly – a preliminary injunction, which allowed Elliott to start the season and play for the foreseeable future until the court case was resolved in the federal court system.
In response, the NFL predictably appealed the case to the Fifth Circuit Court of Appeals seeking an emergency stay on the injunction, which would result in Elliott’s suspension being imposed immediately if granted. The NFL asserted two main arguments: (1) Elliott’s lawsuit was not “ripe for review” in the sense that he had not exhausted administrative remedies when he filed the lawsuit before the appeal was upheld by a hearing officer under the CBA, and (2) the NFL complied with the relatively vague process agreed upon by the NFL and the NFLPA in the CBA. On October 12, 2017, the Fifth Circuit was convinced by the NFL’s argument to vacate the preliminary injunction, stressing that Elliott failed to wait for the potential resolution through the private arbitration process, and that judges have not been persuaded to recognize rights that the NFLPA failed to acquire through collective bargaining with the NFL.
Although Elliott had lost his injunction in the Fifth Circuit, the NFL had previously filed a lawsuit in the Southern District of New York, effectively seeking to have the Court confirm and enforce the arbitration discipline. This gave Elliott a chance to litigate the rest of the case in New York or seek the long shot of review from the Supreme Court; Elliott of course decided to keep fighting the suspension in the New York court. He filed for the identical TRO that he had in place in the Texas court, only in New York. At this point, Elliott had been fortunate enough to have not missed a game yet in the NFL season, but the tides were turning in the NFL’s favor. Just as it seemed he would miss his first game of the season in week 8, the Southern District of New York granted his request for a TRO in a October 17, 2017 ruling. This allowed him to play until his preliminary injunction was ruled on within the next fourteen days. When it came time to rule on the preliminary injunction though, Judge Katherine Failla of the Southern District of New York dissolved the TRO and denied his motion for a preliminary injunction on October 30, 2017. This was the likely outcome in New York, which was a decidedly less favorable forum due to precedent from the Tom Brady “deflategate” ruling passed down in the Second Circuit the previous year.
However, the familiar theme in this case is that as long as there is a higher court, the party ruled against will continue appealing up the board. This led Elliott to seek a temporary stay of his suspension with the Second Circuit Court of Appeals, which was the rung of the ladder above the New York federal court. On November 3, 2017, the stay was granted until the Second Circuit Court of Appeals could hear his motion for an injunction, basically setting a placeholder to maintain the status quo until the Second Circuit could hear the argument in full. Finally, on November 9, 2017, a Second Circuit three-judge panel denied Elliott’s motion for an injunction, reinstating his suspension effective immediately.
What does this mean for the future? If this case has taught us anything, it is that there is always another avenue to receive a favorable ruling. As it stands, Elliott is suspended until an expedited December 1, 2017 ruling, meaning he will miss at the very least the Cowboys’ next four games. Then, depending on the decision that is rendered, he will more than likely continue serving the remaining two weeks on his six-game suspension given the Second Circuit precedent from the Brady ruling. However, if on December 1, Elliott is successful in convincing the Second Circuit that Judge Failla incorrectly sided with the NFL, he could receive monetary damages for the four games he missed (an empty victory in his mind) but would more than likely be able to play out the rest of the season until the Second Circuit could decide on his appeal in the offseason. However, as the battle rages on, it appears less and less likely that Elliott will be able to somehow sit out less than six games. The most likely outcome here is that the Second Circuit will side with Judge Failla and the NFL, which would likely cause Elliott to request an en banc review in front of all judges on the Second Circuit. These reviews are granted in only one percent of cases. In the same vein, Elliott could then appeal to the Supreme Court of United States, which only reviews one percent of those cases. All things considered, the December 1, 2017 ruling is in all likelihood Elliott’s last bite at the seemingly never-ending apple. Unfortunately for him and the Cowboys, if he is unsuccessful, he will be sitting out weeks 10-15 of the NFL season, which are pivotal in setting up for the playoffs. Despite the back and forth in the United States federal court system, it looks like Ezekiel Elliott’s appeal will join the ranks of unsuccessful appeals previously fought by players such as Adrian Peterson and Tom Brady. If the NFLPA can learn anything from the NFL’s more contested enforcement of the personal conduct policy, it is that when it comes time to collectively bargain for a new CBA, the NFLPA should fight for a personal conduct procedure that seeks to level the playing field between the players and the commissioner.
 2011 Nat’l Football League Collective Bargaining Agreement art. 46 (Aug. 4, 2011), archived at https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf.
 Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008).