Anyone watching the recent legal and media combat between the NFL and Dallas Cowboys running back Ezekiel Elliott has a right to be confused. The NFL has hit Elliott with a six-game suspension stemming from domestic violence allegations. He is appealing that suspension, and the legal battle is winding its way through federal courts.
Late Thursday afternoon, the 5th U.S. Circuit Court of Appeals ordered a lower court to vacate an injunction that allowed Elliott to continue playing football. While the NFL said it's requiring Elliott to begin serving his suspension immediately, it isn't clear whether Elliott will be on the field Oct. 22 when the Cowboys kick off their next game against the 49ers in San Francisco. If not, Elliott will be eligible to return to team activities Friday, Nov. 24, after the Cowboys' Thanksgiving game against the Los Angeles Chargers.
In a brief statement, the NFL Players Association, which is working with Elliott, said it is "considering all options" in the wake of the decision. The group noted that the 5th Circuit's ruling addressed the timing of the initial lawsuit filed by Elliott and the association — the court threw out the injunction because Elliott sued the NFL before the league's final ruling on his internal suspension appeal — rather than the merits of Elliott's case.
The strategies taken by both sides during the next weeks and months will determine the outcome. Here's a rundown of the next steps to help make sense of the sparring ahead.
It seems clear that Elliott and his lawyers are going to continue fighting the suspension. Throughout his league appeal and subsequent legal action, Elliott has shown a willingness to do whatever is necessary to avoid the suspension. This includes releasing damaging information about his drug use at Ohio State University, his lifestyle since being drafted by the Cowboys and the nature of his former relationship with his accuser, Tiffany Thompson. He's already missed his opportunity to accept his punishment quietly and serve his suspension.
Elliott has a couple of legal options. Most likely, he will ask the U.S. District Court for the Southern District of New York in Manhattan for a new temporary restraining order or temporary injunction. After NFL arbitrator Harold Henderson denied Elliott's suspension appeal, the league filed suit in the New York court, asking that it confirm Elliott's suspension. Federal courts generally adhere to the "first filed" principle: The first party to file a timely action gets to set the venue. Because Elliott's suit in Texas was filed too early, that's the league's lawsuit.
Alternatively, Elliott could ask the 5th Circuit for an "en banc" hearing, in which all 15 judges on the court would review Thursday's decision, which was handed down by a three-judge panel. He could also appeal the 5th Circuit decision to the United States Supreme Court, asking it to stay the lower court's ruling. It is unlikely that either of those options would end in success for Elliott's defense team. The 5th Circuit rarely grants en banc reviews, and Samuel Alito, the Supreme Court justice in charge of issuing stays stemming from 5th Circuit cases, generally favors employers over employees in labor disputes.
Another unlikely scenario: Elliott resubmits his suit in Mazzant's court, asking the judge to ignore the "first-filed" principle because the league's request for confirmation in New York was filed only to set a favorable venue for the league in the case.
We Believe Local Journalism is Critical to the Life of a City
Engaging with our readers is essential to the Observer's mission. Make a financial contribution or sign up for a newsletter, and help us keep telling Dallas's stories with no paywalls.
Support Our Journalism
The potential outcomes
Assuming Elliott's lawyers proceed in Manhattan, the district court will likely hear oral arguments on a potential restraining order or injunction next week, so that it can take action before the Cowboys' next game. If it denies Elliott's request, the case will proceed, but Elliott will serve the suspension this season. All he'll be eligible to get back, should he choose to keep going, are the six game checks he's slated to miss out on.
There is a decent chance, however, that the district court will give Elliott another preliminary injunction. In New York, Elliott's attorney's will have the advantage of pointing to Mazzant's ruling, as well as a dissenting opinion from 5th Circuit Judge James Graves, both of whom argued that Elliott was denied "fundamental fairness" in his league appeal hearing because Henderson refused to order NFL Commissioner Roger Goodell and Thompson, to testify. The 5th Circuit's majority opinion doesn't speak to the fairness issue, leaving Mazzant's and Graves' opinions as potential guidance for the New York court.
While the same district court eventually vacated a preliminary injunction given to Tom Brady by the 2nd U.S. Circuit Court of Appeals during the "Deflategate" case, it handed down its initial decision based on similar fairness grounds after Goodell, the arbitrator in that case, refused to require NFL general counsel Jeff Pash to testify at a league appeal hearing. In Brady's case — which Mazzant acknowledged in his decision granting Elliott's initial preliminary injunction — the 2nd Circuit ruled that potential testimony provided by Pash would've been "not material and pertinent to the case" and not important enough to make Brady's appeals process fundamentally unfair. Elliott's case was different, Mazzant wrote, because Thompson's testimony would've been "material, pertinent and critically important to Elliott’s case."
If the district court in New York gives Elliott another temporary injunction, he will play the rest of 2017 season as that court, and then the 2nd Circuit, make final decisions as to the fairness of the league's disciplinary action.