Thanks to a request from the NFL to expedite the hearing of the case, that decision could come down as early as the first week of November. It's still anyone's guess, however, as to what that decision will be, leaving open the possibility that a settlement for both sides can be worked out before any definitive ruling. Given the way things stand in the case, both Elliott and the NFL could benefit greatly from a negotiated peace.
Both sides have something significant to lose if the case goes the distance, according to Daniel Wallach, a Florida-based gaming and sports attorney. The league, were it to lose the case, risks compromising the disciplinary process for which Commissioner Roger Goodell fought so hard in 2007 after a series of incidents involving Cincinnati Bengals cornerback Adam Jones. A loss also could compromise the league's 2014 anti-domestic violence policy, adopted after video emerged of then-Baltimore Ravens running back Ray Rice knocking out his fiancee in Atlantic City elevator.One far reaching consequence of losing in court is that the league may require live testimony from accusers during arbitration proceedings.
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"What could potentially be a far-reaching consequence of losing in court is that the league may require live testimony [from accusers] during an arbitration proceeding," Wallach says. "The league is proceeding on the premise that it can conduct its own internal interviews with the accusing witness but not have to produce her during an arbitration proceeding. If Elliott succeeds here, all future domestic violence victims that cooperate with league investigators, while they may not be required to testify during an arbitration hearing because they're beyond subpoena power of the NFL or the arbitrator, their failure to testify could undermine the NFL's chances of succeeding [in an appeal]."
A settlement would benefit Elliott and his team, Wallach says, because it could allow him to miss fewer games than he would otherwise. It would also score a key incremental victory for the NFL Players Association as it fights a disciplinary process it believes to be unfair.
"Even if [Elliott] were to win the federal court lawsuit, the remedy is another [league arbitration hearing]," Wallach says. "Now that he has the maximum leverage that he may ever have in this case, right now could be the best possible time to strike a settlement where he could shave games off of his suspension."
In August, when Goodell issued the suspension, it was almost a foregone conclusion that Elliott would serve the suspension, thanks to the broad disciplinary powers afforded the commissioner. Elliott appealed his suspension, but it was rubber-stamped by former NFL executive Harold Henderson, Goodell's chosen arbiter. During Elliott's appeal hearing, however, Henderson made several key errors that opened the door for Elliott's federal court fight.
Chief among those errors was Henderson's decision to neither require Thompson to testify during the appeal hearing nor hand over notes from previous interviews with Thompson to Elliott's attorneys. In doing so, two federal judges have written, Henderson likely denied Elliott a "fundamentally fair" appeal.
U.S. District Judge Amos Mazzant III initially granted Elliott a preliminary injunction that would've guaranteed his right to play as long as his legal fight went on. Mazzant's decision was vacated by the 5th U.S. Circuit Court of Appeals not because of the merits of the case but because Elliott filed his lawsuit before Henderson issued his final arbitration decision for the league.
Last week, after the case was transferred to the New York court in which the NFL filed a suit to confirm Elliott's suspension as soon as Henderson's ruling came, U.S. District Judge Paul Crotty granted a temporary restraining order. In his ruling, Crotty also cited Henderson's actions as potentially being fundamentally unfair, but he left the task of making a further-reaching decision to U.S. District Judge Katherine Failla, who's assigned to the the case but is on vacation.
Wallach says that Elliott and his team could present a settlement as a way to preserve the judge's opinions about the unfairness of the process, rather than an admission that Elliott assaulted Thompson.
"It could be sold this way. ... Elliott and the players' union could say that by settling now, the union will at least have the benefit of these federal court rulings, which could benefit all of its constituent players in future cases. The risk that Elliott and the NFLPA run by dragging this out to an appeal where they night lose at the 2nd Circuit [which oversees New York federal courts] is that they will undo all of those lower court opinions."
