What the Ezekiel Elliott Decision Means for Him, the NFL and Other Players
In a decision that has stunned the NFL, U.S. District Judge Amos Mazzant III, endorsed a temporary restraining order (TRO) and—more importantly—granted a preliminary injunction against the league on Friday, barring it from enforcing the six-game suspension NFL commissioner Roger Goodell imposed on Dallas Cowboys running back Ezekiel Elliott.
While a TRO only last 14 days, the preliminary injunction could last for months. Unless the NFL successfully appeals Judge Mazzant in the interim (see below), the injunction will continue until Judge Mazzant has an opportunity to review the merits of Elliott’s accompanying lawsuit. Elliott’s lawsuit demands that Judge Mazzant vacate an arbitration award (the “award” being hearing officer Harold Henderson’s recent decision to uphold Elliott’s six-game suspension). Such a review will require hearings and must align with Judge Mazzant’s docket, which already has time set aside for trials and hearings for other cases.
If Judge Mazzant doesn’t schedule the review of Elliott’s accompanying lawsuit for months, it is possible that Elliott could play the entire 2017 season and the playoffs. That said, much depends on when the lawsuit goes to court. We simply don’t yet know.
Why Elliott won the injunction: “egregious facts”
Elliott faced very long odds in obtaining injunctive relief. Injunctions are considered “extraordinary” measures in law, and Elliott had to run the table and prove the necessary four prongs. As noted in previous SI articles, 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—which normally refers to harm that can’t be remedied through monetary damages—if Judge Mazzant doesn’t grant the TRO; 3) the “injury” facing Elliott without a TRO would outweigh any damage to the NFL cause by an injunction; and 4) an injunction against the NFL and in favor of Elliott would not disserve the public interest.
Cowboys’ Ezekiel Elliott Granted Injunction, Court Puts Six-Game Suspension On Hold
In his opinion, Judge Mazzant openly acknowledged that he was obligated to accord high deference to the NFL. “It is a narrow exception and rare circumstance,” the judge wrote, “[in] which a court interferes with an arbitral award.” This language is important since if the NFL appeals, the league will contend that Judge Mazzant misunderstood and misapplied the law. So in his order, the judge wanted to correctly enunciate the law. Despite this deference, Judge Mazzant found the NFL’s review of Elliott to consist of “unique and egregious facts” along with “extreme circumstances” which collectively “necessitated” the judge’s intervention.
Put more basically, Judge Mazzant reasoned that the NFL had to be really bad in its review and punishment of Elliott in order for the judge to grant an injunction. Judge Mazzant found that the NFL was, in fact, really bad.
Returning to the four prongs, Judge Mazzant stresses that Elliott has a high probability of success on the merits for several reasons. In doing so, the judge, as expected, highlighted the league inexplicably obscuring the knowledge of Kia Roberts, the NFL’s Director of Investigations and the only co-league investigator who interviewed Elliott’s accuser, Tiffany Thompson. Compounding that problem, Judge Mazzant reasoned, was the decision-making of Henderson. Judge Mazzant sharply criticizes Henderson for denying Elliott access to the investigator’s notes or an opportunity to cross-examine Thompson.
Judge Mazzant, of course, acknowledged that the NFL couldn’t force Thompson to testify—the league is a private company and has no subpoena power. However, the judge stresses, “the record indicates that the NFL did not even ask Thompson to testify. Thompson was cooperative throughout the entirety of the NFL’s investigation, and there is nothing in the record to suggest that she was unwilling to testify at the arbitration hearing.”
Further, Judge Mazzant pays substantial attention to Henderson, who, Judge Mazzant asserts, denied Elliott a fair appeal. Indeed, Elliott and the NFLPA “had the burden of convincing [Henderson] that Commissioner Goodell’s decision was arbitrator and capricious.” Yet Henderson, Judge Mazzant concludes, essentially made it impossible for Elliott to meet that burden by denying Elliott access to critical evidence.
Judge Mazzant’s lengthy criticism of Henderson is noteworthy since it suggests that Elliott would likely win his lawsuit if it is ever reviewed by Judge Mazzant.
Judge Mazzant also found that Elliott met prong two by showing how he would be irreparably harmed without an injunction. Although the NFL could ultimately reimburse Elliott for lost game checks, the judge stressed that missing part of the season “potentially deprives Elliott of the ability to achieve individual successes and honors.” Further, Judge Mazzant notes that NFL careers are “short and precarious,” so Elliott missing mere weeks is akin to most of us missing months or years of our careers.
Further, Judge Mazzant concluded that issuing an injunction “does not eviscerate the internal procedures of the NFL and NFLPA.” This point goes to the third prong—that issuing an injunction would cause more harm to the NFL than the amount of harm Elliott would suffer if an injunction were denied. Judge Mazzant found that, “given the current set of facts,” an injunction “merely ensures the internal procedures [of the CBA] are being carried out in the appropriate manner.”
Lastly, Judge Mazzant found that issuing an injunction advanced public policy, and thus comports with prong four. “While the Court agrees that there is a preference for private settlements,” Judge Mazzant wrote, “the Court still retains review over the arbitral process to maintain minimum standards of fairness.”
If Goodell places Elliott on the “Exempt List” expect Elliott to seek another injunction from Judge Mazzant
Elliott will play in Week 1. But Judge Mazzant’s order doesn’t necessarily guarantee that he will play in Week 2. The order blocks the NFL from imposing the suspension.
The order does not block the NFL from placing Elliott on the “Exempt List.” This list is controversial for a variety reasons, including that it is explained not in the CBA—a document assented to by players—but instead in a league-issued document, the NFL Player Personnel Policy Manual. A player placed on the Exempt List is essentially put on paid suspension. He receives paychecks but is denied the chance to work. In most workplaces, this type of punishment is referred to as “administrative leave.”
If Goodell places Elliott on the Exempt List, Elliott and the NFLPA will immediately seek an injunction from Judge Mazzant. They would contend, with good reason, that placement of Elliott on the Exempt List would undermine the existing injunction issued by Judge Mazzant. This is particularly true in regards to Judge Mazzant’s reasoning on irreparable harm: Elliott missing games—which would be true whether he is suspended with or without pay—would damage his career since he would be denied a chance to accumulate statistics and improve his skills.
Ezekiel Elliott Case: There Are No Winners
The NFL will appeal and the NFL does well on appeals
Cowboys fans and fantasy football owners who have Elliott on their team are likely happy tonight. The current landscape of Elliott’s legal situation is that he will be available for perhaps months, maybe the entire 2017 season.
Notice the word “current” and recall how Brady and Adrian Peterson won at the district court level as well. Both later lost on appeal.
The NFL can—and almost surely will—appeal the preliminary injunction to the U.S. Court of Appeals for the Fifth Circuit. The NFL could file a notice of appeal as soon as this weekend and submit an accompanying brief early next week. The speed of an appeal is uncertain at this point, but remember when U.S. District Judge Susan Nelson issued a preliminary injunction for NFL players during the 2011 lockout: the NFL immediately appealed to the U.S. Court of Appeals for the Eighth Circuit, and within four days—yes, four days—a three-judge panel on the Eighth Circuit stayed the injunction, meaning the NFL obtained a reversal in the same week.
You might observe that when the NFL appealed Tom Brady’s victory before U.S. District Judge Richard Berman in September 2015, the appeal wasn’t heard until March 2016 and wasn’t decided until the end of April 2016. That would all be true, but Brady obtained a different type of legal “win.” He persuaded Judge Berman to vacate the arbitration award (i.e. hearing officer Roger Goodell upholding commissioner Roger Goodell’s four-game suspension of Brady). Elliott, in contrast, has only persuaded Judge Mazzant to enjoin the arbitration award’s accompanying suspension—in other words, the award still exists. Also, appeals for injunctions tend to move faster than those for other kinds of remedies.
The NFL is probably optimistic it will win at the Fifth Circuit. At some point after the appeal is filed, a panel of three Fifth Circuit judges will review the appeal. The Fifth Circuit is known in legal circles as very friendly to management and business. Republican presidents nominated nine of the 14 judges on the Fifth Circuit. It is a favorable court for the NFL.
In an appeal, the NFL will re-litigate the four prongs and insist that Judge Mazzant misapplied them. The league will also stress its legal victories over Tom Brady and Adrian Peterson. While those decisions are non-binding in the Fifth Circuit, they are persuasive authority and, in terms of procedure, in some ways on-point.
For instance, the Second Circuit ruled that Brady was not entitled to investigative notes because Article 46 doesn’t express that right. Judge Mazzant—just like Judge Berman before him—viewed that topic differently, finding that fairness requires that those notes be shared. Mindful of the Brady decision, Judge Mazzant attempted to distinguish the two sets of evidence and testimony by arguing that investigative materials for Elliott are “material, pertinent, and critically important.” The NFL would contend there is no viable distinction. Further, the NFL would, like in Brady and Peterson, assert that Article 46 accords nearly unlimited authority to Goodell to determine whether a player committed “conduct detrimental to the league” and if so, what ought to be the punishment.
If Elliott ultimately prevails at the Fifth Circuit . . .
If Elliott can overcome the odds yet again and defeat the NFL on appeal before the Fifth Circuit, it would be a true game-changer. Suspended players would try to file lawsuits in that forum, knowing that precedent in the Fifth Circuit favored players when challenging NFL suspensions. For its part, the NFL would appeal Elliott’s appellate win to the U.S. Supreme Court and there would be a chance the Supreme Court takes it: the Fifth Circuit’s reasoning on Article 46 would seemingly be incompatible with the reasoning of the Second Circuit (Brady) and Eighth Circuit (Peterson). To be sure, the Supreme Court only accepts about 1% for review, but you never know—so-called “circuit splits” are prime candidates for review. Perhaps this is one reason why the NFL seeks to move the Elliott case to the U.S. District Court for the Southern District of New York: to avoid a potential defeat in the Fifth Circuit and subsequent “forum shopping” by players.
Only time will tell and only one thing is for sure: these are interesting days in the world of NFL justice.
Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law.
