NEW ORLEANS (CN) – Fifth Circuit judges Monday heard arguments on whether Dallas Cowboys running back Ezekiel Elliott must begin serving a six-game suspension for allegations of domestic violence.
NFL Commissioner Roger Goodell suspended Elliott in August after a year-long NFL investigation into allegations Elliott had physically hurt his former girlfriend while they were still a couple. In suspending Elliott, Goodell said the NFL “had substantial and persuasive evidence” that Elliott had assaulted the young woman.
Before the investigation, Elliott’s then-girlfriend posted photos on social media that appeared to show bruises up and down her arms. She wrote in captions that Elliott had physically attacked her.
After the investigation, prosecutors in Ohio did not take up the case, saying there was too much conflicting evidence, and that Elliott said under oath that he is innocent.
Elliott’s suspension was halted last month when a federal judge in Texas found Elliott did not receive a “fundamentally fair hearing” because an arbitrator refused to allow him to cross-examine his accuser or call Goodell to testify during his appeal. The judge granted the NFL Players Association’s request for a preliminary injunction.
The players’ union sued the NFL on Aug. 31, claiming the six-game suspension resulted from of a conspiracy to hide critical information that exonerates Elliott.
The NFL said the lawsuit should be tossed because it was filed after an arbitration agreement had been reached.
A three-judge panel of the Fifth Circuit grilled attorneys on both sides Monday seeking specifics of the case.
Pratik Shah, on behalf of the NFL, told the judges that granting a stay allowing Elliott’s suspension to continue would be an unprecedented decision by a circuit panel.
Fifth Circuit Judge Jennifer Walker Elrod asked if it was “ordinary” that the commissioner did not include the investigators’ report when handing down his decision.
Shah said the commissioner has to have sole authority in such matters.
“This is the regime that has been negotiated upon,” Shah said.
Fifth Circuit Judge James E. Graves Jr. pointed out that sports careers have short timelines and that serving a six-game suspension this season will be a lot of time lost. Graves seemed particularly troubled that Elliott may be innocent.
Shah replied that the longer Elliott’s suspension is put off, the worse the injury will be.
“What about ‘Let a player play?’” Elrod asked.
“The NFL has a serious interest in deterring domestic violence from its players,” Shah said. “Letting this go undermines that goal.”
During arguments on behalf of the players’ union, Elrod was feisty in questioning attorney Jeffrey Kessler about the unions’ motivations for filing the lawsuit on behalf of Elliott after an arbitration agreement had been reached.
Kessler said the arbitration agreement was released on a Tuesday, which happens to be the day NFL players are picked for games.
He said Goodell’s fact-finding sheet after the investigation “was so confusing, you cannot tell what the commissioner knew.”
But the NFL’s point, Elrod told Kessler, “is that it would undermine the NFL’s entire discipline system – or whatever you call it.”
Chuckling came from the gallery, which was about three-quarters full, mostly with people who appeared to be lawyers or reporters.
“In the past,” Kessler said, “they did not suspend the player,” merely on what appears to be unsubstantiated accusations.
“Does any court accept your position that once the record is closed you can go ahead and file a lawsuit?” Elrod asked.
Kessler began to talk.
“So your answer is ‘No,’” Elrod said. “No: that no court accepts your position.
“Why didn’t you file here immediately after you got the award?” she continued.
“We would be in exactly the same place,” Kessler said.
Judge Graves chimed in.
“In a normal case, you don’t have interlocutory appeal every time you disagree without something,” he said.
Kessler said the players’ union intends to seek discovery.
Outside the courtroom afterward, Kessler declined to comment on the case.
The judges could decide on the matter as early as Tuesday, though no timeline was given.
Judges Edward Prado and Jennifer Walker Elrod are appointees of George W. Bush; Graves is an appointee of Barack Obama.
If the stay is denied, Elliott will be able to continue playing.
If the stay is granted, the NFL will be able to enforce the suspension immediately.
A third possibility would be for the court to grant the stay, vacate the injunction and order the lower court judge to dismiss on grounds that it should not have been heard in the Eastern District of Texas to begin with, which is what the NFL has requested.