Update: Ezekiel Elliott will not take the field with his Cowboys teammates Sunday afternoon in Atlanta. The 2nd U.S. Circuit Court of Appeals ruled Thursday afternoon that Elliott must begin serving his NFL-imposed suspension immediately, denying the running back's request that the suspension be put on hold as he continues to fight the league in federal court. Read the new ruling at the bottom of the Dallas Observer's coverage here.
After a Thursday afternoon court hearing in Manhattan, both sides will be left with little recourse other than to wait for a decision from the 2nd U.S. Circuit Court of Appeals. When that decision comes down, both sides are going to have to move on — at least for now.
Today's hearing at the Thurgood Marshall Courthouse in New York is, in many ways, the mirror image of a hearing in early October at the 5th U.S. Circuit Court of Appeals. At that hearing, the NFL was scrambling, after a ruling by a lower-court judge, to get Elliott's suspension reinstated. The league did so; the circuit court decided that Elliott's initial suit against the league never should have been filed in Texas in the first place.
This time around, it's Elliott and NFL Players Association that need the circuit court to issue a stay against a lower-court ruling. After Elliott's Texas case was dismissed, the court of record in the skirmish over Elliott's suspension — handed down by Goodell after domestic violence allegations made by Tiffany Thompson, Elliott's ex-girlfriend — became the U.S. District Court for the Southern District of New York.
The district judge assigned to the NFL's suit to confirm Elliott's suspension, Katherine Failla, is the first judge who's heard arguments in the case so far to rule that Elliott will not suffer irreparable harm if he misses games for suspension and then eventually prevails on his claims that the process by which the NFL suspended him was fundamentally unfair. Failla dismissed Elliott's argument on the merits as well, ruling that NFL arbitrator Harold Henderson was under no obligation to ask Thompson or Goodell to testify at Elliott's league appeal hearing.
Failla split with U.S. District Judge Amos Mazzant III, who heard Elliott's Texas case, on both counts. Elliott and the NFL Players Association appealed Failla's ruling to the 2nd Circuit, leading to today's hearing, which will determine whether Elliott will be allowed to play, likely for the rest of the 2017 season, as his case against the league winds through the legal system.
The key issue at the circuit court hearing will be whether the three-judge panel hearing Elliott's appeal — Dennis Jacobs, Debra Livingston and Christopher Droney — believes that Elliott's fundamental unfairness argument raises significant legal questions that should by decided after further argument. While it is likely that the judges will disagree with Failla's assessment that Elliott's missing games does not amount to irreparable harm — that opinion is out of line with decisions in several previous suspension appeals, including those of Tom Brady and Adrian Peterson — the 2nd Circuit's decision to eventually uphold Brady's suspension for allegedly deflating footballs before the 2014 AFC championship game looms large.
The key difference in the two cases is that the witness the NFL did not produce for Brady's appeal, league vice president Jeff Pash, was not deemed to be an important one by the court. In Elliott's case, Thompson is the most important witness because she is the only witness against Elliott. If the circuit court rules that a fundamental fairness standard should be applied to NFL arbitration proceedings — the 2nd Circuit opinion in Brady never definitively says whether it should — there's a chance Elliott could get his stay of Failla's decision to reinstatement the suspension. If he does, he'll play against the Falcons and, most likely, the rest of the Cowboys' 2017 opponents as well.