After further review, the ruling of a Texas district court was overturned by the 5th Circuit Court of Appeals yesterday, resulting in the dismissal of Ezekiel Elliott’s case against the NFL, and clearing the way for Elliott to begin serving a six-game suspension.
The Dallas Cowboys running back was suspended in August for allegedly assaulting an Ohio woman on multiple occasions in July of 2016. The incidents were reported to the Columbus Police Department, who investigated alongside the Columbus city prosecutor. Although the prosecutor “generally believed” the complainant’s account of “all of the incidents,” Elliott was not arrested and criminal charges were not pursued.
An NFL player does not need to be charged with a crime to face discipline under the league’s personal conduct policy. Merely engaging in prohibited conduct—which includes actual or threatened violence against another person—can subject a player to discipline. The league thus conducted its own investigation of the allegations against Elliott.
NFL investigators interviewed a dozen witnesses, including the complainant, examined photographic evidence, and reviewed thousands of text messages. The league had medical experts opine on the complainant’s injuries, and consulted with a number of independent advisors, including a former player, a former Attorney General, a former U.S. Attorney, and the CEO of an anti-violence initiative.
Elliott denied the allegations, and presented his own account of the events to the investigators and advisors, in which he raised concerns about the complainant’s credibility and motives.
NFL Commissioner Roger Goodell reviewed the evidence and acknowledged the conflicting versions of events, but ultimately concluded that Elliott “used physical force that caused injuries” to the complainant’s face, neck, arms, wrists, hands, hips, and knees. Goodell found that there was no dispute that Elliott and the complainant “were together in the same location on the dates identified,” and that there was no evidence that the injuries were caused by someone else, as Elliott had suggested. Goodell detailed his conclusions in an August 11th, 2017 letter, which also announced the six-game suspension.
Pursuant to the NFL’s collective bargaining agreement with the NFLPA, Elliott contested Goodell’s decision in an arbitration proceeding, over which former NFL executive Harold Henderson presided from August 29th to 31st.
It was during the arbitration hearing that Elliott’s counsel first learned that one of the league’s lead investigators—Kia Roberts—“had concerns about the accuser’s credibility,” and concluded that there was insufficient evidence to discipline Elliott. Others on the investigative team disagreed, but Roberts’ opinions and conclusion did not make it into the comprehensive investigative report, and may not have been shared with Goodell prior to his issuance of the disciplinary decision.
While Elliott’s lawyers were permitted to cross-examine Roberts, their requests to compel the testimony of both Goodell and the complainant were denied by the arbitrator.
The parties concluded the arbitration hearing on August 31st, with the arbitrator’s decision set to follow in the coming days. Also on August 31st, the NFLPA filed a lawsuit on Elliott’s behalf, seeking to vacate the expected decision on the grounds that Elliott did not receive a fair hearing, as required by the CBA.
The NFLPA did not file suit in New York however, where the league offices are based and the arbitration was held. It filed instead in the Eastern District of Texas, not far from the Cowboys’ home stadium in Arlington.
On August 31st the NFLPA also filed, in the Texas proceeding, a motion for an injunction seeking the immediate stay of Elliott’s suspension. The injunction hearing was held on September 5th, which was the same day that the arbitrator released his decision upholding the suspension.
On September 8th, the Texas court issued its opinion on the injunction, in which it ruled that the arbitrator’s refusal to compel the attendance and testimony of Goodell and the complainant, “effectively deprived Elliott of any chance at a fundamentally fair hearing.” The court’s order enjoined the NFL from enforcing the suspension, which meant that Elliott could play in the Cowboys’ week 1 game against the rival New York Giants.
The NFL appealed the Texas court’s decision to the 5th Circuit Court of Appeals. The issue on appeal was not whether Elliott had been deprived of a fair hearing, rather it was whether the Texas court had the power to adjudicate Elliott’s case in the first place.
Federal labor law has long held that a party cannot file a lawsuit to enforce rights under a collective bargaining agreement—and a court cannot exercise jurisdiction over such a lawsuit—until the grievance procedures under that collective agreement have been fully exhausted. Outside of a few limited exceptions, the failure to exhaust those grievance procedures—and in this case receive the arbitrator’s final decision—strips a court of the power to adjudicate the case.
The NFLPA contended that one of those exceptions applied, and that it need not wait for the arbitrator’s decision before filing suit, because the NFL repudiated the grievance process when the arbitrator refused to compel the testimony of Goodell and the complainant. But as the Court of Appeals noted, for the “repudiation” exception to apply, “the NFL would have had to completely refuse to engage in the process.” Since that was not the case here, the exception did not apply.
The 5th Circuit Court of Appeals held that, since the NFLPA filed the Texas action on August 31st, six days before the arbitrator issued his opinion, the Texas court did not have jurisdiction to adjudicate the matter and issue the injunction. The Court of Appeals noted:
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.
As there was no final decision, Elliott had not yet exhausted the contracted for remedies.
The Court of Appeals vacated the injunction and ordered the Texas court to dismiss the NFLPA’s case, and the league announced immediately that the suspension would be enforced.
This dispute is likely not over. Now that the arbitrator has issued his opinion and the arbitration process is final, the NFLPA can re-file its claims and a court will likely exercise jurisdiction. The problem for the NFLPA, and Elliott, is that on September 5th, moments after the arbitrator issued his opinion, the NFL filed suit in a New York federal court seeking to confirm the award issued in the just-concluded arbitration proceeding. The New York case was stayed pending the decision of the 5th Circuit Court of Appeals, but now that the 5th Circuit had made that decision and the Texas case is about to be dismissed, the New York case will likely proceed.
The NFLPA could attempt to re-file in Texas, but the existence of the pending claim in New York—over which the New York court has proper jurisdiction—makes it likely that any Texas-filed case would be transferred to New York and consolidated with the New York case. Given the general deference afforded to arbitration awards, and the NFL’s success in New York in the Tom Brady “Deflategate” case, the league is probably comfortable proceeding there.
Elliott’s attorneys have given no indication that they will walk away from this dispute. Protracted litigation is harmful to all parties involved, and it is possible that the NFL, NFLPA, and Elliott will reach a compromise resulting in a reduced suspension. Emboldened by the results in the Brady case, and unwilling to appear weak on domestic violence issues, the NFL may also refuse to compromise and take its chances in court.