Cowboys, Elliott Twist in Limbo After Court Hearing in New Orleans

After Monday's U.S. 5th Circuit Court of Appeals hearing, neither Ezekiel Elliott nor the NFL should feel comfortable in their nearly year-and-a-half-long legal battle over domestic violence allegations made against the Dallas Cowboy. The league, which desperately wants to enforce a six-game ban handed to Elliott by Commissioner Roger Goodell in August, didn't get the decision from the bench. Elliott, seeking with the NFL Players Association to expose his disciplinary process as a kangaroo court beholden to Goodell's whims, faced at least one judge dubious of his lawsuit's right to proceed.

U.S. District Judge Amos Mazzant III issued a preliminary injunction Sept. 8, stopping the league from enforcing Elliott's suspension. In his opinion, Mazzant agreed with Elliott's lawyers that the NFL's disciplinary process was fundamentally unfair to Elliott because key information was left out of the final investigative report given to Goodell. In addition, Goodell and Elliott's accuser, ex-girlfriend Tiffany Thompson, were not required to testify at Elliott's appeal hearing. The league's argument to the 5th Circuit in favor of blocking the preliminary injunction centers on the fact that Elliott filed his lawsuit against the NFL before Harold Henderson, the arbiter appointed by Goodell to hear the appeal, decided to uphold the suspension.

During Monday's hourlong oral arguments, it seemed clear that each of the parties in the case had one of the three judges on the 5th Circuit motions panel hearing the appeal on its side. Judge Jennifer Elrod, a conservative appointed to the circuit court by George W. Bush, repeatedly pressed Jeffrey Kessler, Elliott's lead attorney, on whether allowing Elliott's suit to continue would violate precedent because it was filed before Elliott exhausting his internal appeal options with the NFL.

Kessler told Elrod that Elliott needed to file his case in advance because the NFL was set to file a lawsuit in its favored New York venue as soon as Henderson, a former league executive, finalized his decision. The league, filed a competing lawsuit in the Southern District of New York, had no reason to file a lawsuit to force the suspension to go into effect other than to get the suit heard in its preferred court, Kessler said. The league prefers the case be heard in New York because of the ultimately favorable ruling it received from the 2nd Circuit during its lawsuit attempting to force Tom Brady's suspension during the Deflategate case.

"When the circumstances are such that, in effect, the tractor trailer is coming at your house, you don't have to wait to be run over," Kessler said. "If we had waited until the decision came down, the decision would've gone into effect before we could even obtain preliminary relief."

Pratik Shah, the attorney representing the NFL at the hearing, argued that, were the court to allow Elliott to continue to play, suspended players could use lawsuits as a "manipulative device" to avoid discipline. "If you allow ... discipline to be rolled over a season or longer, then that undermines the NFL's significant interest in disciplining its players when they commit offenses like domestic violence," Shah said.

Circuit Judge James Graves Jr., a Barack Obama appointee, challenged Shah, pointing to the fact that the league allowed Elliott to play in the Cowboys' season opener against the Giants before Henderson issued his ruling. Elliott could serve his suspension at any time, Graves suggested, but there is no way for him to get any games he might miss back. "Just because it’s agreed to doesn’t mean it’s not irreparable," Graves said, referring to the NFL's player conduct policy.

The third member of the panel, Judge Edward Prado, another George W. Bush appointee, appears to be the swing vote on whether the stay will be upheld. Unlike Elrod and Graves, Prado, considered a moderate by 5th Circuit observers, kept mostly to himself Monday, standing out only when he joked that he was going to suspend Shah from arguing in front of the 5th Circuit for six weeks after Shah went over his allotted speaking time.

Prado's decision will swing the 5th Circuit's ruling on whether to allow Mazzant's stay to continue. If Prado agrees with Kessler that Elliott and the NFL Players Association were within their rights to file their suit before Henderson entered his final ruling, the 5th Circuit will deny the league's stay request. Given the filings and hearings that will ensue, Elliott will likely play the entire 2017 season as the case bounces back and forth between Mazzant's court and the 5th Circuit.

If Prado agrees with Shah that it was inappropriate for Elliott to file his suit when he did, the case will immediately move to Manhattan, where a Southern District of New York court will decide whether Elliott should be given a restraining order or injunction against the suspension. A third option, which seems unlikely after the hearing, is that 5th Circuit could agree that Elliott's filing was appropriate but grant the stay based on the merits. In that case, Elliott would begin serving his suspension immediately.

At the close of the hearing, Prado said that the panel would get back to Elliott and the league "as soon as possible." While the court could rule by the end of the week, it's possible that the ruling could come after the Cowboys' game with the Packers on Sunday, during the Cowboys' bye week.

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