For the latest on U.S. District Judge Katherine Failla's decision to reinstate Ezekiel Elliott's six-game suspension, check out the Observer's Monday night update.
Just before 3 a.m. July 22, 2016, Tiffany Thompson called Columbus, Ohio, police to report an assault. Officers met her at a short-term rental property at 29 W. Third Ave., where she told them that Ezekiel Elliott had repeatedly assaulted her over the last week. The final assault happened there, at the rent house, during a celebration of Elliott’s 21st birthday, she said.
Thompson identified Elliott as her boyfriend and maintained that they lived together for three months. She stood shirtless on the street as officers took pictures of bruises on her shoulders, forearms, hips and neck.
At the scene, Elliott told police that Thompson had never been his girlfriend. He’d paid her rent, he said, but the two never lived together. Thompson’s bruises, Elliott said, came from a bar fight earlier that night.
Police declined to arrest Elliott. They said later that the conflicting statements about what happened and their inability to determine whether the two had ever lived together helped shape their decision. Police told Thompson that if she wanted to pursue the matter further, she should go to the Columbus City Attorney’s Office.
It didn't take long for Elliott's camp to start a campaign to defend him. As details from Columbus became public later that day, Stacy Elliott, Ezekiel's dad, claimed that the allegations weren't true, saying Thompson made them up because she was angry with the younger Elliott.
"The reported allegations and internet postings regarding our son are completely false," Stacy Elliott said. "Ezekiel has done nothing wrong. The police have investigated this matter, and eyewitnesses have verified the lack of any wrongdoing. The actual evidence in this matter clearly indicates what the real motivation was behind the police being called."
Six weeks later, Columbus City Attorney Richard Pfeiffer announced that his office would not pursue charges against Elliott. “This is primarily due to conflicting and inconsistent information across all incidents resulting in concern regarding the sufficiency of the evidence to support the filing of criminal charges,” he said.
Along with Pfeiffer's decision, the city attorney's office released the evidence it collected during the course of its investigation. The trove included interview notes from July 22 and pictures of the injuries Thompson said were caused by Elliott. The police also released text messages between Thompson and her friend Ayrin Mason in which Thompson asked Mason to lie about the incident outside the after-party.
Had this occurred before 2007, this would be the end of the story. With no arrest or charges, Elliott would be impervious to league action. That changed a decade ago, however, when the NFL Players Association conceded power over player discipline to Commissioner Roger Goodell. Goodell would be Elliott’s judge, jury and appellate arbiter, free to hand out punishment based on his interpretation of the evidence.
In the 10 years since, the NFL has suffered a string of domestic violence embarrassments despite Goodell's newfound power. In 2014, Goodell suspended Ray Rice, who played for the Baltimore Ravens, for two games after Rice was charged with assaulting his fiancee, who's now his wife. Goodell changed his mind and suspended Rice indefinitely after TMZ got its hands on video of the incident, but an arbiter eventually vacated this decision.
Greg Hardy allegedly choked a woman and tossed her onto a couch covered with guns, but his suspension while playing for the Cowboys was reduced from 10 games to four in 2015 because of procedural errors made by Goodell. Giants kicker Josh Brown was suspended for the first game of the 2016 season based on domestic violence allegations made by his wife before passages from Brown's diary containing graphic depictions of abuse became public.
The commissioner and Elliott have been locked in combat for the past year. The conflict has been bitter but hardly decisive. Elliott’s status, the league’s credibility and the Cowboys' season are still up in the air. But the stakes are growing higher, and one phone call to Ohio police has become the most significant challenge to Goodell’s power in years.
On Aug. 25, 2016, Elliott made his first preseason appearance in Seattle against the Seahawks. That night, Cliff Avril hit Cowboys quarterback Tony Romo at the end of a scramble, breaking a bone in Romo’s back. The focus of Cowboys nation shifted from Elliott to Romo’s replacement, Elliott’s fellow rookie Dak Prescott.
But the league didn't forget. Its investigation into Elliott started as soon as Thompson’s allegations became public in July. As the Cowboys' 13-3 season played out, the turmoil in Ohio bubbled to the surface every three or four weeks. The news cycle seemed to repeat stories by reporters citing unnamed team or league sources claiming that the investigation was about to wrap up.
Throughout the fall and winter of 2016-17, Cowboys owner Jerry Jones repeatedly insisted that the league had no evidence on Elliott regarding domestic violence. According to ESPN The Magazine reporter Seth Wickersham, Jones told one of two NFL investigators assigned to the case that “your bread and butter is going to get both of us thrown out on the street.”
Goodell remained largely silent about the league’s investigation until December, when reporters pressed him on why the investigation was taking so long.
"Well, the best way to be fair to a player is to be thorough and to take your time and get it right. So that is what we're working on. We have professionals that are working on this," Goodell said Dec. 14. "We're not putting a timetable on it. We want to make sure they get it right, they get all the facts. And when they reach to a conclusion, we'll all know about it."
Goodell appointed former prosecutors Lisa Friel and Kia Roberts as co-lead investigators on the case. Lisa Friel is special counsel for investigations for the NFL; Roberts is the league's director of investigations.
Friel and Roberts divvied up the investigative duties. Roberts handled the NFL's interviews with Thompson, speaking with her six times. Friel did not participate in those conversations. Roberts said later that she was the "boots on the ground in the investigation" while Friel took a more supervisory role.
Thompson’s story — the one she told Columbus police that night — remained fairly consistent, according to documents from the investigation and information released by the NFL. Elliott arrived in Columbus on Saturday, July 16, 2016, planning to celebrate his birthday in the city where he’d spent three years at Ohio State. Thompson said she and Elliott went out on the town that night and that when they got home, she asked Elliott why he’d received calls and texts from another woman throughout the evening. After that, she said, Elliott attacked her.
“He picked me up by the neck and threw me around,” Thompson said. “My right forearm is bruised from him hitting it due to me trying to cover my face.” These attacks, she said, continued throughout the week. “He came home Tuesday morning and started choking me and smacking my face, telling me that I’m his puppy dog and I need to sit down before he beats my ass even more,” she said.
On July 22, the morning Thompson called the police, she said Elliott attacked her the night before as she sat in a car outside the party. “As soon as he pulled up tonight, he grabbed me by the right arm and dragged me out of the car, leaving my right hand and wrist bruised and red,” Thompson said.
Elliott told the police and NFL that he’d never hit Thompson. Her bruises, Elliott said, could have come from any number of things, including rough sex, bumping into tables as she worked as a bottle-service waitress or a fistfight that Thompson had with a woman she accused of sleeping with Elliott.
Elliott's defense dredged up some unsavory details, which it made public seemingly as preemptive disclosures. The player told Friel that he smoked pot during his time at Ohio State, he enjoyed a party lifestyle as a Cowboy and that Thompson had an abortion after becoming pregnant with his child.
Witnesses' testimony didn't support Thompson's claims. One of Elliott's closest friends, Alvarez Jackson, told Columbus police that he didn’t see any bruises on Thompson or hear any fights although he spent most of the week with the couple. Even Thompson's friend Mason denied that the incident outside the after-party occurred and corroborated that Thompson got in a fistfight with a woman. Other witnesses — all Elliott's friends — said they heard Thompson scream at Elliott the morning of July 22 that she was going to ruin his life.
Both Friel and Roberts found reasons to doubt both Elliott's and Thompson’s stories. Roberts later testified that she did not find Thompson credible and did not believe Elliott should have been suspended.
As the league continued its investigation, Elliott made his mark on his new hometown. In December, he scored a major public relations victory when he hopped in an oversized Salvation Army kettle after scoring against the Bucs on Dec. 19 at Jerry World. After the Cowboys season-ending playoff loss to the Packers on Jan. 15, Elliott said he just wanted the investigation, then in its seventh month, to be over.
“I would rather them not drag it on as long. I think if there was something to find, which there’s not, they would’ve found it by now. The police did a very thorough investigation,” he told reporters after the game. “I will tell you this: It just seems like they’re dragging their feet right now. Who knows, man? I just want it to end.”
Elliott and the Cowboys continued to wait for Goodell’s decision throughout the spring as Roberts and Friel worked to compile their final investigative report. In March, Elliott made the news for the wrong reasons again.
Pattern of behavior
Dallas’ annual St. Patrick’s Day parade down Greenville Avenue can be raucous. Like a Mardi Gras parade, women bare their breasts and men flash whatever they feel like flashing. But when an opportunistic videographer captured Elliot pulling down a female acquaintance’s top, to her seeming dismay, it resonated with the public. To Elliott, it was no big deal. He later testified at his appeal hearing that the woman must not have minded flashing the crowd too much because she and Elliott had sex later that day.
But for others, it was another incident in a string of immature behavior by Elliott. Another video surfaced showing Elliott in a Seattle marijuana dispensary in August 2016. Text messages between Thompson and Elliott revealed the running back’s fear of a positive drug test.
Another incident surfaced before Goodell’s final decision on Elliott’s discipline. On July 16, almost a year after Thompson called the police in Columbus, Dallas police responded to a fight at Clutch in Uptown. While the Dallas Police Department never mentioned Elliott by name, rumors swirled that Elliott had punched Daryl Ibeneme, a local DJ better known as DJ D-Train. Within a week, however, DPD dropped its investigation into the incident at Clutch, citing Ibeneme’s unwillingness to cooperate with the investigation.
When training camp began for the Cowboys a week later, there was hope that a return to football would slow everything down for Elliott. As camp got underway in Oxnard, California, a consensus developed among local and national media covering the Elliott saga that Goodell would hand out his verdict during the week after the Cowboys' appearance in the Hall of Fame game Aug. 3. Goodell, the thinking went, wouldn’t want to upstage Jones’ Hall of Fame induction by suspending one of the Cowboys owner’s best players.
Eight days later on Aug. 11, Goodell announced Elliott’s suspension. While the timing wasn’t a surprise, the length of Elliott’s ban shocked those who felt that Elliott would get off with a one-game or two-game warning from the league. Instead, the commissioner suspended Elliott for six games, the standard penalty created by the league for domestic violence incidents.
His decision hinged on photos taken by Thompson of bruises on her body. According to a letter sent to Elliott by Todd Jones, the NFL's special counsel on personal conduct, Goodell issued the suspension because he believed Elliott "used physical force that caused injuries" to Thompson on July 17, 19 and 21 in 2016.
"[Thompson] took photos of her injuries. As the league examined the metadata in the phone with respect to those photos, the league discovered the date on which those photos were taken," Peter Harvey, a former New Jersey attorney general who consulted with Goodell, said during a conference call with reporters after the suspension was announced. "They were taken the same day as Ms. Thompson alleged she was injured by Mr. Elliott. We also examined the reports of two medical experts who are knowledgeable about violence issues and evaluating injuries of violence. These medical experts corroborated many of the statements that Ms. Thompson made."
Harvey also addressed a key piece of Elliott's defense — Thompson's text messages asking Mason to lie about the incident in the parking lot. In the league's view, Harvey told reporters, that incident likely didn't occur.
"[Thompson's] false statement that was revealed was she accused Mr. Elliott of yanking her out of a car on July 21 — really it’s the morning of the 22nd because I think it was after midnight. That did not happen," Harvey said. "And she did ask one of her friends to tell the police that it did happen, and the friend had the good sense not to do that. That is true. But as to other statements that she made, both to the Columbus DA as well as to NFL investigators, she was absolutely truthful about them."
According to Cindy Southworth, the executive vice president of the National Network to End Domestic Violence, Thompson's inconsistency shouldn't necessarily be taken to mean she's lying about the other alleged incidents. Coming forward with domestic violence allegations, Southwell says, requires a victim to marshal together all resources she might have at her disposal.
"Anybody who is trying to come forward to share their story of domestic violence, there's incredible pressure not to come forward, even if your partner is the local mail carrier, somebody who's not a public figure," she says. "Victims are terrified that they won't be believed. That might lead somebody to try to drum up additional support, you know: 'Hey, can you help me out? I need witnesses because people aren't going to believe me.'"
Elliott and the NFL Players Association vehemently disagreed with Goodell’s conclusions, contending that the league's investigative report was "replete with factual inaccuracies and erroneous conclusions.” Elliott, his attorneys made clear, was going to appeal Goodell’s decision and was willing to do whatever it took to avoid missing a single game for the Cowboys. The NFL scheduled Elliott’s appeal hearing for Aug. 29 in front of former NFL executive Harold Henderson, Goodell’s chosen arbiter.
As Elliott's team readied its appeal, media reports emerged about Thompson’s alleged harassment of Elliott by phone in September 2016 — a Frisco police report accused Thompson of calling Elliott “50-plus” times in a seven-hour period — and a plot by Thompson to sell sex videos featuring Elliott to the highest bidder. The NFL called out the players association, accusing the union of "attempt[ing] to prove the innocence of the accused by discrediting the victim." In response, the association accused the league of lying.
"This is another example of the NFL's hypocrisy on display and an attempt to create a sideshow to distract from their own failing in dealing with such serious issues. They should be ashamed for stooping to new lows," the union said.
Before the hearing, Elliott’s camp petitioned Henderson to ask several people to testify, including Thompson, Friel, Goodell and Roberts. Henderson agreed to make Roberts and Friel available for questions but declined to ask Thompson or Goodell to be at the hearing. Henderson’s decision to exclude Thompson and Goodell would come back to haunt the league.
At the New York hearing, Roberts was the star witness for Elliott’s defense. During her testimony, she told Henderson that she did not believe Elliott should have been suspended because she was unsure of Thompson's credibility after a series of inconsistencies in their conversations.
Roberts' conclusion was not included in the final investigative report given to Goodell, nor was she allowed to take part in a meeting between her fellow lead investigator and Goodell.
Additionally, a medical expert called by Elliott's defense said it was impossible to tell from photos taken by Thompson — the NFL's key evidence against Elliott — when bruises on her body might have been caused. Dr. Lone Thanning, one of the doctors the league consulted about the photos, was not available for testimony at the appeal hearing, apparently because of illness.
“We have reason to believe that that is false,” Elliott’s lawyer Jeffrey Kessler told Henderson, according to a transcript of the hearing. “So I’m going to submit to you the declaration of a private investigator, Mr. Scott Whitlock. Mr. Whitlock will, as you’ll see in this declaration, testify that, in fact, Dr. Thanning was in her [residence] all day yesterday ... and he went to her door and she answered and that he stayed there all day really into the night and she never left the residence.”
Dr. Lorraine Giordano, the other doctor on whom the league relied to determine the provenance of Thompson's bruises, said at the hearing that she “had no reason to disagree” with defense expert testimony that it is impossible to tell the age of a bruise from a photograph.
Before Henderson issued his appeal decision, Elliott's defense team pre-emptively filed a lawsuit in U.S. District Court, claiming decisions made by the arbitrator during the league's appeal process, including his refusal to make Thompson or Goodell available for questioning, made the process fundamentally biased against Elliott. Thompson's testimony, the defense said, would've been essential to appropriately evaluate her credibility. Goodell’s testimony, Kessler said, was necessary to evaluate what evidence the commissioner determined to be “credible,” the standard required for suspension under the league’s conduct policy.
Elliott asked U.S. District Judge Amos Mazzant III for a preliminary injunction as his suit moved through the courts, so he could could continue playing while the courts determined the status of his suspension. If the league could force him to begin serving the suspension, Elliott argued, he would suffer irreparable harm because the games he missed could not be given back. The potential for irreparable harm is a key factor in determining whether an injunction or restraining order should be issued.
"This isn't just about the money Elliott would lose if he sits out six games,” said Chad Ruback, a Dallas attorney who specializes in appellate law. "This is about Elliott's ability to perform competitively in a relatively short season within a relatively short career of an NFL football player. If he has a fantastic season this year, it will impact his earnings for his entire career. He is right now in the prime of his career, and being deprived of a huge chunk of a season in the prime of his career is something he could never, ever get back."
On Tuesday, Sept. 5, a cheering throng of Cowboys fans waving “Free Zeke” signs greeted Elliott in downtown Sherman. Inside the courthouse, the star running back's legal team requested an injunction. The NFL made two arguments against Elliott’s request. First, Elliott should have waited to file his suit until after Henderson denied his appeal — which he did during the hearing. Second, the league argued, Goodell has almost total discretion in NFL disciplinary matters, thanks to the collective bargaining agreement. Any decision to delay or limit Elliott’s suspension would, according to the league, infringe on Goodell’s ability to wield that power.
Mazzant sided with Elliott, granting the running back a preliminary injunction that, left unchallenged, likely would’ve allowed him to play the entire 2017 season as the case wound through the courts.
"The question before the court is merely whether Elliott received a fundamentally fair hearing before the arbitrator," Mazzant wrote in his opinion. "The answer is he did not. The court finds, based upon the injunction standard, that Elliott was denied a fundamentally fair hearing by Henderson's refusal to allow Thompson and Goodell to testify at the arbitration hearing. Their absence ... effectively deprived Elliott of any chance to have a fundamentally fair hearing."
Mazzant ruled that, because Thompson's statements and photos were the basis of Goodell's decision to punish Elliott, her testimony would've been essential to a fair appeal hearing, especially in light of Roberts' questions about her credibility. "In this situation, where credibility is questioned and a dissenting opinion regarding the case and the credibility of Thompson are withheld from, at a minimum, the NFLPA and Elliott, the ability to cross-examine Thompson is both material and pertinent," he wrote.
The league appealed Mazzant’s decision to the 5th U.S. Circuit Court of Appeals on the previously argued basis that Elliott’s lawsuit had been filed prematurely. The NFL said that Mazzant’s injunction should be dismissed, leaving the case to be fought in the league’s preferred Manhattan venue, the U.S. District Court for the Southern District of New York.
As soon as Henderson entered his decision against Elliott, the league filed a motion to confirm the suspension with the New York court, a tactic it also used in its 2015-16 legal fight with Tom Brady. Because the league’s claim was the first filed appropriately, according to the 5th Circuit’s ruling, the case moved to New York.
The NFL wanted to take on Elliott in New York largely because of the outcome in Brady’s case. After a district court judge ruled that Brady, like Elliott, had been denied a fair process by the NFL, the 2nd U.S. Circuit Court of Appeals overturned the decision, deciding that Jeff Pash, an NFL attorney whom Goodell did not force to testify at Brady’s appeal hearing, was not an important enough witness to render the New England quarterback’s treatment fundamentally unfair.
By the time Elliott’s case migrated, he’d played in the Cowboys' first five games, thanks to Mazzant’s injunction. Like the rest of his team, Elliott didn't live up to his 2016 season. The Cowboys were 2-3 and faced losing Elliott through Thanksgiving.
Elliott’s New York case was assigned to U.S. District Judge Katherine Failla, who was out of town on vacation when the 5th Circuit made its decision. With Failla gone, a fill-in judge, Paul Crotty, determined whether Elliott would get the temporary restraining order he needed to play Oct. 22 against the 49ers. Crotty granted the restraining order, which effectively gave Elliott two more games as his next hearing was scheduled for Oct. 30, the day after the Cowboys' Oct. 29 game against the Redskins.
"Elliott has established that, without a temporary restraining order, [he] would experience irreparable harm because he stands to miss more than one-third of the NFL's regular season," Crotty said in his opinion. "Improper suspension can undoubtedly result in irreparable harm."
Crotty also pointed out that the NFL's disciplinary process may have been unfair to Elliott by denying him the chance to cross-examine the woman whose domestic violence allegations led to his suspension. He left it to Failla, however, to determine whether Elliott would receive a longer-term preliminary injunction as the case played out.
Chances of a settlement
Both sides in the case now have a lot to lose. According to Daniel Wallach, a Florida-based gaming and sports attorney, the league risks compromising the disciplinary process for which it 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 Rice knocking out his fiancee in an Atlantic City elevator.
"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 said. "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]."
If Elliott and the NFL Players Association continue to fight the case to a final federal court decision, they risk giving up the gains they’ve made in the case so far. The players association could use Mazzant's and Crotty’s rulings in the future, Wallach said, as precedents that prove the NFL’s disciplinary process must, at least, be fair to the player being disciplined. He said Elliott should at least consider settling the case before its final disposition.
"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," Wallach said. "The risk that Elliott and the NFLPA run by dragging this out to an appeal where they might lose at the 2nd Circuit is that they will undo all of those lower-court opinions."
While Elliott’s suspension fight will be over sometime next year at the latest, its legacy could be felt far longer. The NFL’s collective bargaining agreement expires after the 2020 season. When it does, the NFLPA will likely push for neutral arbitration for cases in which Goodell’s punishment decision is appealed, an idea the union first proposed in 2015. If the union and the league don’t change the process, legal battles like Elliott’s will become the uncomfortable new normal.
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After an afternoon court hearing Oct. 30 in New York, Failla denied Elliott's request for a temporary injunction. She rejected both Elliott's claim that he would suffer irreparable harm were he to sit for six games and eventually prevail on the merits of his case, as well as his argument that Henderson denied him a fair hearing when he failed to ask Thompson and Goodell to testify at the NFL appeal hearing.
"The arbitrator gave Mr. Elliott ample opportunity, in terms of both proceedings and evidence, to challenge the Commissioner’s decision before the arbitrator; the arbitrator’s ultimate decision against Mr. Elliott does not render these proceedings any less fair. Accordingly, the Court dissolves the temporary restraining order that has been in place since October 17, 2017, and denies the NFLPA’s motion," Failla wrote.
On Tuesday afternoon, Elliott's defense team filed an emergency motion with Failla, notifying the judge of its intention to appeal her decision to the 2nd Circuit. The defense asked Failla to stay enforcement of her ruling and the suspension until the 2nd Circuit appeal is settled.