Ezekiel Elliott Allowed to Play During Review of Appeal, But Timing Could Become Very Important

The Second Circuit has granted Elliott an administrative stay, which means the Cowboys RB doesn't have to serve his suspension while his appeal is ongoing. But if Elliott is ultimately forced to serve the suspension, his decision to fight could backfire.

One the most difficult choices for NFL fantasy sports players this season has been how to assess the value of Dallas Cowboys running back Ezekiel Elliott. On one hand, Elliott is among the most productive and dynamic running backs in the league. On the other, he’s spent the entire regular season facing a six-game suspension that, pending a multi-state legal battle, he could be forced to serve at any time.

Odds are that Elliott will eventually serve the suspension. This reflects, among other reasons, the high degree of deference federal courts are obligated to give to arbitration awards involving management discipline of unionized employees. NFL commissioner Roger Goodell suspended Elliott, a member of the NFLPA, pursuant to Article 46 of the collective bargaining agreement between the NFL and the NFLPA. Serving as an arbitrator, former NFL executive Harold Henderson then upheld Elliott’s suspension. Even though there are troubling questions about the process used by the NFL to investigate and discipline Elliott, Article 46 accords substantial deference to Goodell in disciplining players for conduct detrimental to the league. Moreover, at least as written, Article 46 fails to provide meaningful procedural protections to players who seek to rebut allegations of misconduct.

Likewise disadvantageous to Elliott is the precedent he faces in the U.S. Court of Appeals for the Second Circuit. This is the court that will decide whether Elliott plays or sits. It is also the court that ruled against Tom Brady in a 2016 appeal involving similar procedural issues, most notably the right to confront witnesses and the right to review investigative materials (while the factual allegations against Elliott and Brady couldn’t be more different—Elliott is accused of domestic violence and Brady was accused of “general awareness” of an equipment controversy—the players’ legal challenges center on the same set of procedures found in Article 46).

Nonetheless, Elliott’s legal team has used various legal filings to at least delay when he could serve the suspension. The first filings were submitted to Judge Amos Mazzant, III of the U.S. District Court for the Eastern District of Texas. Judge Mazzant ruled for Elliott and highlighted what he regarded as fundamental unfairness in how the NFL punished Elliott. Although the U.S. Court of Appeals for the Fifth Circuit, which has appellate jurisdiction over Judge Mazzant, ultimately ruled against Elliott, the Cowboys running back relied on Judge Mazzant’s ruling to play in the first part of the 2017 regular season.

The litigation then turned to the Southern District of New York, which, through a ruling by U.S. District Judge Paul Crotty, allowed Elliott to play the last two weeks. As in Texas, Elliott’s legal run was eventually tackled. This occurred on Tuesday, when another judge on the Southern District of New York, U.S. District Judge Kathleen Failla, denied Elliott a preliminary injunction. In her order, Judge Failla highlighted the similarities between arguments raised by Elliott and those unsuccessfully raised by Brady.

Judge Failla’s order meant that Elliott would begin to serve the suspension in this Sunday’s Cowboys-Chiefs game.

Or so it seemed.

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On Friday Elliott received a court ruling that will keep him on the field—for this weekend, at least. On behalf of the Second Circuit, court clerk Catherine O’Hagan Wolfe announced that a three-judge panel will review Elliott’s motion for an expedited appeal of Judge Failla’s order. Wolfe does not indicate when the Second Circuit’s review will occur or which three judges will conduct the review. However, she notes that the “next available” three-judge panel will conduct the review. To that end, the Second Circuit has granted Elliott an administrative stay, which bars the NFL from imposing the suspension while the appeal is ongoing. As a result, Elliott, who has played in all seven of the Dallas’s regular-season games, will play in the Cowboys-Chiefs game.

To be clear, Wolfe’s order does not mean that Elliott will win the appeal. It simply means that the court needs time to review the emergency appeal and, out of fairness to Elliott, he ought to be able to play during that review. Indeed, in an effort to preempt confusion by the public, Wolfe is careful to note that the Second Circuit’s order “does not constitute a resolution on the merits.” In other words, the same legal hurdles Elliott has faced from the start remain.

Timing matters: by continuing to litigate, Elliott might later be required to serve the suspension during crucial games

The fact that Elliott’s appeal is for an emergency injunction suggests the three-judge panel will act quickly. But if the three-judge panel does not rule on Elliott’s appeal next week, Elliott would presumably be granted another stay that would allow him to play in the Cowboys-Atlanta Falcons game on Nov. 12. The same arrangement should hold true for the following Cowboys games. Put another way, if the three-judge panel needs significant time to review Elliott’s expedited appeal, he should be able to play for several weeks or perhaps even the remainder of the 2017 regular season.

Will that happen? Anyone who claims to know is lying. The timing of an appeal of this nature is entirely up to the yet-to-be-named three judges. It’s possible that the three-judge panel could quickly dismiss Elliott’s appeal in a two-sentence order. In that scenario, Elliott would likely miss the NFL’s Week 10-15. The only impact of Elliott receiving a weekend reprieve on Friday, then, would be when Elliott starts and finishes his six-game suspension: he would miss the Cowboys-Oakland Raiders game on Dec. 17 instead of missing the Cowboys-Chiefs game on Nov. 5.

I write “likely” because before giving up, Elliott would probably petition the Second Circuit for an en banc review, where, if granted, all of the active judges on the court would review his appeal. If such a petition were unsuccessful, Elliott could then petition the U.S. Supreme Court. As explained in the Brady case, however, the Second Circuit only grants about one percent of en banc petitions and the same low odds face petitions to the U.S. Supreme Court as well.

In an alternative timeline, the three judges—whose schedules are likely booked tight—might decide they require much more time to review Elliott’s appeal. In that scenario, they could take a week or two to schedule a hearing and then additional take weeks to review the relevant arguments. Elliott would then be eligible to play for several additional weeks or even longer.

But such a development would come with risk for both Elliott and the Cowboys: if Elliott loses in a few weeks and if the currently 4–3 Cowboys later advance to the postseason, part of Elliott’s suspension would have to be served during the postseason. Although Goodell’s letter to Elliott explicitly refers to a suspension of “six regular-season games,” NFL spokesperson Brian McCarthy tells The MMQB that Elliott’s suspension can carry into the postseason:

The initial notice of suspension via the letter and also press release was August 11 during the preseason. We said at the time that he would be able to play in preseason games and practices but would not be eligible for six regular season games. It was anticipated that he would miss the first six games of the regular season. But he appealed, which is his right. Suspensions carry over into the playoffs and the Super Bowl. This is the same for other suspensions and players and the union are aware that they run this risk during the appeal process.  ... it is widely known by clubs and the union that suspensions carry over into the postseason. This came up in the Tom Brady case as well.

Further, McCarthy stresses, this practice is consistent with Section 3.2.2 of the league’s Policy and Program for Substances of Abuse. It dictates that suspensions carry into the postseason “if an insufficient number of games remain in the regular season to complete the suspension.”

The MMQB will keep you updated on developments in the Elliott legal saga.

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, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA and My Life in Basketball.

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