As things stand, Ezekiel Elliott will not be starting at running back for the Cowboys when the team returns to the field Oct. 22 against the 49ers. Instead, he could begin serving his six-game suspension stemming from domestic violence allegations his ex-girlfriend made against him in 2016.
If the team had a game tomorrow, Elliott wouldn't be allowed to play. But in the 10 days before the Cowboys are scheduled to play the 49ers, that may change as the court case likely moves to a new venue.
On Thursday afternoon, the 5th U.S.Circuit Court of Appeals sided with the NFL. The court vacated a stay issued to Elliott by U.S. District Judge Amos Mazzant III that would've allowed Elliott to continue playing as his appeal of the NFL suspension decision worked its way through the federal courts. In its ruling, the 5th Circuit agreed with league attorneys who argued that Elliott prematurely sued the league Sept. 1.
Here's the key paragraph, in which the three-judge panel says Elliott and the NFL Players Association were obligated to wait for NFL arbitrator Harold Henderson's decision on Elliott's league appeal before filing their lawsuit:
"The NFLPA’s lawsuit on Elliott’s behalf was premature. The procedures provided for in the collective bargaining agreement between the NFL and NFLPA were not exhausted. The parties contracted to have an arbitrator make a final decision. That decision had not yet been issued. Although the NFLPA argues there were final procedural rulings, those rulings were not necessarily indicative of the arbitrator’s final decision. At the time the NFLPA filed the complaint, it was possible the arbitrator could have issued a final decision that was favorable to Elliott. Elliott cannot show it was futile to wait for a final decision simply because he believed the arbitrator would issue an unfavorable ruling. As there was no final decision, Elliott had not yet exhausted the contracted-for remedies."
The circuit court's ruling does not mean Elliott's fight is over. Because the opinion dismissed Elliott's case for lack of subject matter jurisdiction, the fight over his underlying claims remain undecided. That includes whether Henderson and the league acted fairly when they didn't require NFL Commissioner Roger Goodell or Elliott's accuser, Tiffany Thompson, to testify at Elliott's appeal hearing. That issue and a slew of others will now likely be heard by the U.S. District Court for the Southern District of New York, the venue in which the league has filed suit to confirm Elliott's suspension.
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The Manhattan court will be charged with making the same decision already made by Mazzant — whether the league's disciplinary process was "fundamentally unfair" to Elliott. The league has argued that Goodell's decision, based on a report compiled by investigators Kia Roberts and Lisa Friel, met the requirements of the collective bargaining agreement between the league and its players, which requires only that the commissioner find "credible evidence" in order to suspend a player.
Elliott's lawyers point to appeals hearing testimony from Roberts that notes her lack of support for a suspension because she questioned Thompson's credibility. This recommendation was not passed on to Goodell and, according to the suit, hindered the commissioner's ability to do his job.
Previous NFL cases in the U.S. District Court for the Southern District of New York are a mixed bag. In the most prominent, the Tom Brady "Deflategate" case, Brady secured an injunction, allowing him to play the entire 2015 season. The U.S. Court of Appeals for the 2nd Circuit eventually enforced his four-game suspension, requiring him to serve it at the beginning of the 2016 season. Similar circumstances could follow here, with Elliott serving the suspension next year, or the court could lean on the Brady precedent and require Elliott to begin serving his suspension against San Francisco this month.