Judge Reinstates Cowboys’ Ezekiel Elliott’s Suspension

Dallas Cowboys’ Ezekiel Elliott stands on the field after a 35-31 loss to the Green Bay Packers in Arlington, Texas on Oct. 8. (AP file photo/Michael Ainsworth)

MANHATTAN (CN) — Citing the National Football League’s effort to clamp down on off-the-field violence, a federal judge reinstated a six-game suspension late Monday night against Dallas Cowboys star Ezekiel Elliott.

“The pertinent terms of the [collective bargaining agreement] reside at the crossroads of the public’s desire for the controlled carnage that is the sport of football and the NFL’s ability to discipline players for off-the-field violence,” U.S. District Judge Katherine Polk Failla wrote in a 24-page ruling.

Elliott denies that he battered his ex-girlfriend Tiffany Thompson, who accused the running back of causing the bruises on her body that she photographed and posted to Instagram in August 2016.

“Thrown into walls,” the photo caption said. “Being choked to where I have to gasp for breath. Bruised everywhere, mentally and physically abused. It’s not okay. So I want each and every one of you girls to step away now from domestic violence.”

After a yearlong investigation, NFL Commissioner Roger Goodell concluded in September that there was “substantial and persuasive evidence” that Elliott assaulted Thompson on at least three occasions.

“Mr. Elliott’s behavior during that event was inappropriate and disturbing, reflecting a lack of respect for women,” the league found in a Sept. 5 letter. “When viewed together with the July incidents it suggests a pattern of poor judgment and behavior for which effective intervention is necessary for your personal and professional welfare.”

The NFL Players’ Association immediately contested that decision on Elliott’s behalf in Texas and New York federal courts, where two judges separately found the league’s arbitration proceedings to be unfair.

Overruling her colleague in New York, Judge Failla found that the NFL gave Elliott a sporting chance to defend himself.

“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,” she wrote.

NFL Players’ Association attorney Jeffrey Kessler did not immediately respond to an email request for comment.

Elliott’s legal team is expected to appeal to the Second Circuit immediately, hoping to overturn the ruling before the Cowboys’ Sunday game with the San Francisco 49ers.

Failla’s opinion and order was the latest see-saw in the legal battle between the NFL and the player’s union. After a Texas judge initially ruled for Elliott, the Fifth Circuit this month dissolved this ruling on jurisdictional grounds, reinstating the six-game suspension.

But on Oct. 17, U.S. District Judge Paul Crotty ruled for Elliott in New York, finding he was “denied the opportunity to confront the accusing witness and it had no opportunity to examine this witness on the alleged domestic violence.”

“This is significant because there were substantial questions concerning the credibility of the accusing witness,” Crotty added.

Spared from warming the bench before for the season opener, Elliott scored three touchdowns to lead the Cowboys to a 40-10 victory against the 49ers the following weekend, but Crotty’s temporary restraining order was  meant only to give the running back breathing room until Failla returned from vacation.

At a two-hour hearing on Monday, Judge Failla made clear that she would view the case with fresh eyes.

“Judge Crotty was very concerned about not stepping on my toes,” she said in court.

Kessler, from Manhattan-based Winston & Strawn, told the judge that the NFL’s arbitration should have given Elliott the opportunity to cross-examine Thompson.

“I can’t conceive of a more crucial witness we could have called on this issue than the accuser herself,” Kessler said.

Reprising similar arguments he made on behalf of New England Patriots quarterback Tom Brady in the “Deflategate” case, Kessler portrayed the NFL’s arbitration review as a rigged system of NFL functionaries conspiring against the players.

Failla seemed skeptical.

“Conspiracy?” she asked from the bench. “Them’s fighting words.”

Kessler said the NFL’s own investigator concluded that none of Thompson’s allegations could be believed, but that it kept the arbitration judge in the dark on this and soft-pedaled Thompson’s credibility problems.

Failla found that the Constitution’s confrontation clause did not extend to NFL arbitration proceedings.

“Even under fundamental fairness review, however, arbitrators are not required to apply the normal rules of evidence that might otherwise compel a right of confrontation,” she wrote.

The NFL’s attorney Paul Clement, a former U.S. solicitor general, warned that forcing women to testify at these proceedings would set a “dangerous” example for a league attempting to crack down on domestic violence.

“I think it sets a terrible precedent … that the alleged victim has to be cross-examined by the alleged perpetrator,” he said.

Clement disputed the union’s view that the NFL hid the credibility problems.

“If you read that report, this is not a report that tells a one-sided story,” he said.

Thompson, a resident of Columbus, Ohio, reported her accusations to local authorities, who declined to prosecute Elliott. NFL investigators later obtained text messages suggesting that Thompson considered blackmailing Elliott with sex videos, according to reports on the league’s findings, which are not public.

Noting that the NFL credited only three of Thompson’s five accusations, Clement said these conclusions were corroborated by forensic analysis of the accuser’s photos and a medical report.

“In both cases, credibility concerns were front and center,” he said.

Elliott’s attorneys have said that missing games could harm their client’s reputation, finances and ability to win awards such as the Pro Bowl selection.

But Failla found that the league had even more on the line, if the penalty were overturned.

“Indeed, all parties to this litigation are keenly aware of recent criticisms of the NFL’s efforts to redress and combat domestic abuse by NFL players,” she wrote. “Put simply, Elliott’s personal concerns, while not insubstantial, are outweighed by the broader, league-wide concerns proffered by the NFL [Management Council].”

Sitting silently in court in a blue suit and tie, Elliott signed autographs for fans after the hearing, but he dodged reporters’ questions before darting out of the Thurgood Marshall Courthouse with his attorneys to a black SUV.

Kessler and Clement also refused to take questions from a small throng of reporters.

Failla reinstated the suspension later than 10 p.m., some three and a half hours after the hearing —  enough time, she said, to give the “aggrieved party” an opportunity to file an emergency Second Circuit appeal before game night on Sunday.

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