Today, you get this employer lawyer’s insights on not only the status of National Football League Players Association‘s efforts to overturn the National Football League‘s 6-game suspension of Ezekiel Elliott, but also real information about when Elliott may return to action.
The latest.
Elliott is playing in Week 1 against the Giants. The NFL has confirmed that.
Will Elliott play in Week 2?
That’s to be determined. Let’s briefly recap why:
- August 11, 2017: NFL Commissioner Roger Goodell announced that the league was suspending Elliott for six games. The NFLPA took the matter to arbitration.
- August 31, 2017: Before, the arbitrator issued his decision, the NFLPA, on its own behalf and on behalf of Elliott, filed a petition in federal court to vacate the arbitration award. The case was assigned to Judge Amos Mazzant. That’s the same Judge Mazzant who just struck down the U.S. Department of Labor’s proposed overtime rules. (Sorry, I’ll try to keep this focused on fantasy football).
- September 1, 2017: The NFLPA filed an emergency motion for a temporary restraining order against the enforcement of the arbitration award. The one that the arbitrator still had yet to issue.
- September 4, 2017: The NFL responded to the NFLPA’s motion and moved to dismiss the action as premature. (Remember, the arbitrator still had yet to rule).
- September 5, 2017: The parties appeared in court before Judge Mazzant. During the hearing, the NFL indicated that it would allow Elliott to play on Sunday and Judge Mazzant indicated that he would issue his ruling by Friday at 5 pm. Later that day, the arbitrator upheld the 6-game suspension.
- September 6, 2017: First, the NFLPA supplemented its brief. Essentially, it argued that, whether it filed early or not, Judge Mazzant should weigh in on the arbitrator’s decision. Then, the NFL responded by doubling down on its position that the NFLPA acted prematurely. (“Just as a party cannot appeal a verdict while the jury is deliberating, it cannot petition to ‘vacate’ an arbitration decision that has not yet issued….This Court indisputably lacked power to grant Petitioner any relief at the time the suit was filed.”)
So, that leaves a couple of possibilities:
- Judge Mazzant sides with the NFL, dismisses the case on procedural grounds, and the arbitrator’s decision stands for now. That means that Elliott returns to the field on November 5 for a Week 8 matchup with Kansas City. Unless…
- Judge Mazzant sides with the NFL, dismisses the case on procedural grounds without prejudice, and the immediately NFLPA re-files its action (because the arbitrator has issued his ruling). This seems more likely than option #1. Judge Mazzant would not reach the merits of the NFLPA’s claim until next week at the earliest. That leaves Elliott’s Week 2 status in doubt.
- Otherwise, Judge Mazzant could rule on the merits now.
Now, generally, judges don’t vacate arbitration awards. Indeed, when the arbitrator’s decision is in line with the NFL collective bargaining agreement, then the outcome will stand. So, if Judge Mazzant connects those dots, we won’t see Elliott until he returns in Week 8. If however, Judge Mazzant walks in the footsteps of NY federal judge Richard Berman, who overturned Tom Brady’s 4-game suspension, then Elliott could miss no time at all. Alternatively, Judge Mazzant could vacate the arbitration award and remand the case to the arbitrator to fix any underlying procedural defects. If that happens, Elliott returns immediately and would continue to play indefinitely.
Other far less likely options would involve:
- Judge Mazzant siding with the NFL and staying the suspension pending appeal; or
- Judge Mazzant reducing the suspension to something less than six games
Is this Deflate-Gate all over again?
Probably not.
Judge Berman’s decision rested on a few bedrock principles:
- Tom Brady lacked notice that deflating footballs (as opposed to steroid use, for example) could lead to a 4-game suspension, as opposed to a mere fine. With Elliott, however, there is precedent for a suspension based on allegations of domestic violence. Indeed, the NFL has a personal conduct policy, which covers domestic violence. Still, the length of the suspensions has varied. So, that may cut in favor of Elliott. Then again, Judge Berman contrasted Brady’s predicament with other cases involving domestic violence:“In both the Ray Rice case and the Adrian Peterson case, the players could, perhaps, be said to appreciate that acts of domestic violence might be deemed “conduct detrimental.” And yet, in both of these cases, the players were disciplined only after findings were made under the specific domestic violence policy.” Obviously, that doesn’t bode well for Elliott.
- Commissioner Goodell denied Brady the opportunity to examine the lead investigator.
- Brady did not have access to the investigative files.
The NFLPA here argues a mixed bag for Elliott. That is, it argues that the underlying facts don’t support a six-game suspension plus Elliott was denied certain due process along the way. To me it reads a bit like spaghetti against the wall.
Therefore…
My prediction.
- Judge Mazzant rules on the merits by Friday at 5 pm local time.
- The suspension stands.
- Elliott plays this weekend.
- Elliott misses Weeks 2-7.