On August 11, 2017, the National Football League (NFL) and NFL Commissioner Roger Goodell issued a six-game suspension to star running back Ezekiel Elliott, concluding their investigation into his alleged domestic violence. On November 9, 2017, Ezekiel Elliott began serving that suspension in Week 10 of the NFL’s season. Whether you follow football or not, it was nearly impossible to ignore the news coverage of this drawn-out dispute, but how we got from point A to point B still has many people scratching their heads. To understand this whole case, it’s necessary to back up a few years and compare it with other recent legal battles the NFL has fought with its players. I’ll guide you through what happened, why it matters and what it means for the future.
The Case Against Elliott
While the three-month dispute over Elliott’s suspension felt interminable to many, his case actually began back in July 2016, and the foundations of the legal suit trace back still further. It was on July 17, 2016, that Ezekiel Elliott first reportedly had an altercation with his then girlfriend, Tiffany Thompson, and there were subsequently two more instances over the next week that the NFL investigated.[1] While a police report was filed in Columbus, Ohio, on July 22, 2016, the Columbus City Attorney’s office ultimately determined not to prosecute the matter.[2] The NFL conducted its own investigation of the case, led by former assistant district attorney Kia Roberts, which they released concurrently with the publication of their penalty on August 11, 2017.[3] This investigation and Elliott’s six-game suspension were issued by the NFL under the terms of its updated Personal Conduct Policy that the NFL announced on December 10, 2014. This policy change was a reaction to two similar scandals the NFL confronted that year, and the policy established new case review procedures, harsher penalties for violations and community resources meant to prevent such situations.
How is the NFL able to regulate player conduct?
The authority of the NFL to discipline players comes first and foremost from the collective bargaining agreement (CBA) that the league and its players negotiate every few years. In addition to disciplinary procedures, this agreement regulates issues such as player wages, hours, working conditions and a myriad of other issues pursuant to the National Labor Relations Act.[4] The most recent NFL collective bargaining agreement went into effect in 2011 upon the resolution of an NFL lockout, and will last through the 2020 season. Article 46 of the collective bargaining agreement between the NFL and the National Football Players Association (NFLPA), which governs personal conduct, does not include a “just cause” provision for penalties imposed by the commissioner.[5] The absence of a “just cause” provision means that the NFL is not entirely bound by the standards of industrial due process as they relate to “double discipline” and “disparate treatment,” but the league must still be fair and consistent in its disciplinary decisions.[6] Legal challenges to the league’s discipline by individual players or by the NFLPA must demonstrate that the punisher abused their discretion in reaching a penalty that was arbitrary and capricious. [7] The events of the past few years should make the disciplinary powers of the commissioner a more contentious topic in the next round of negotiations than it ever was before.
Commissioner Goodell announced the first iteration of the Personal Conduct Policy in April of 2007, with the support of then NFLPA head, Gene Upshaw, as part of a sweeping move to resuscitate the League’s image following a series of high-profile player arrests. When issuing the first two punishments to Pacman Jones and Chris Henry, Goodell explained “your conduct has brought embarrassment and ridicule upon yourself, your club and the N.F.L., and has damaged the reputation of players throughout the League … You have engaged in conduct detrimental to the N.F.L. and failed to live up to the standards expected of N.F.L. players.” The Commissioner’s statements illuminate the league’s goal of protecting its brand image, which is instructive for how the court of public opinion can influence their assessment of penalties.
The Cases That Came Before Elliott’s
Since 2007, the NFL has issued numerous suspensions pursuant to its Personal Conduct Policy, with the two main precursors to Ezekiel Elliott’s case being those of Ray Rice and Adrian Peterson in 2014. While many also analogized the situation to Tom Brady’s protracted legal battle with the NFL during 2015 and 2016, the uniqueness of that case’s facts do not provide as much insight as the similar offenses of Rice for domestic violence and Peterson for child abuse. For those who recall those suspensions and the litigation that followed, one key difference likely jumps out: both Ray Rice and Adrian Peterson won their court appeals of the NFL suspensions. Why did they succeed where Elliott failed? Well, the NFL learned something from those missteps, addressing some in their new 2014 policy, and others as Elliott’s case unfolded.
Ray Rice
On February 15, 2014, Ray Rice hit his then fiancée, Janay, in the elevator of an Atlantic City hotel.[8] Ray Rice was subsequently indicted, and under the 2007 Personal Conduct Policy, the NFL needed to wait until all criminal investigations were resolved before issuing any discipline. [9] That is no longer the case. The NFL now conducts more thorough investigations of their own and can react to situations as quickly or as slowly as it pleases, irrespective of criminal cases.[10] When the NFL and Commissioner Goodell first assessed Ray Rice’s case, they issued a two-game suspension. At the time, that matched the harshest penalties ever imposed upon a first-time domestic violence offender.[11] Some expected a harsher penalty and were disappointed by the league’s response, but that outcry grew tenfold when a second video of the blow itself came to light on September 8, 2014. [12] Commissioner Goodell suspended Ray Rice indefinitely in response, claiming that the video displayed a “starkly different sequence of events” from what Rice stated at their June 16, 2014, meeting.[13] When the case reached Judge Jones, she felt that an indefinite suspension for Rice was unlikely to qualify as an abuse of discretion, if that was the initial discipline issued.[14] She came to that conclusion despite evidence that a domestic violence situation never resulted in more than a two game suspension before. However, the indefinite suspension was not the only issue up for review, but also the Commissioner’s determination to increase his initial punishment. Judge Jones ruled that “Rice did not mislead the Commissioner and because there were no new facts on which the Commissioner could base his increased suspension, [she] found that the imposition of the indefinite suspension was arbitrary.”[15] In future cases, such as Elliott’s, the NFL would spend significantly more time and money investigating matters before levying a penalty. The league would also err on the side of harsher penalties from this point on, since they maintained authority to reduce penalties if they chose, but now had a limit on their ability to increase penalties.
Adrian Peterson
On November 4, 2014, Adrian Peterson pled no contest to a misdemeanor assault charge for excessively disciplining his four-year-old son by beating him with a stick.[16] In response to public outcry over this example of child abuse, on the heels of Ray Rice’s domestic violence scandal, Commissioner Goodell chose to suspend Adrian Peterson for the remainder of the NFL season.[17] The length of Peterson’s suspension, while longer than previous suspensions for similar cases, was not the basis of 2014’s second high-profile grievance that the NFL Players Association filed against the league. The union argued this case on behalf of Adrian Peterson because he supposedly reached an agreement with the league that stipulated he could return to playing once his legal case concluded if he accepted placement upon the NFL Commissioner’s Exempt List during the interim.[18] Peterson played the first game of the 2014 NFL season prior to his indictment and the Minnesota Vikings originally announced that he would return for the third game of the season after his release on bond from Montgomery County.[19] The announcement created a whirlwind of disapproval, coming from as high as the governor of Minnesota and U.S. Senators, while numerous corporate sponsors pulled their support.[20] The League helped the Vikings quickly reverse course by negotiating Peterson’s placement on the Commissioner’s Exempt List, giving him full payment but precluding him from playing while his case resolved.[21] Judge Doty concluded, “the Court finds no valid basis to distinguish this case from the Rice matter,” and overturned the suspension, deeming it was another example of the league changing its initial decision about how they would discipline a player.[22] After a second straight defeat, the League needed to change tactics to put themselves on safer footing.
How the NFL Adapted After the Rice and Peterson Cases
The NFL would no longer be in the business of cutting deals with organizations or players. They still expected full cooperation from players during investigations but now made no offers in return. In fact, since the cases of Ray Rice and Adrian Peterson, the league has rarely tipped its hand about potential punishments until the date it is officially announced. This is likely how we arrived at the Cowboys owner, Jerry Jones, telling reporters on July 23, 2017, that domestic violence would not be an issue with the NFL’s yearlong investigation and that he did not expect Elliott to receive any suspension. This was barely two weeks before the Commissioner issued the six-game suspension.
During public outcry about Ray Rice’s second video, Commissioner Goodell sent a letter to the NFL Owners on July 15, 2014, writing that he “didn’t get it right” and was changing the Personal Conduct Policy from one that contained no minimum suspension for first time domestic abusers to a presumptive six-game suspension.[23] The updated Personal Conduct Policy with this specification went into effect on December 10, 2014, after a vote of approval by the thirty-two teams. The suspension Goodell mentioned for first time offenders was the same amount levied against Ezekiel Elliott in 2017.
What Happened in Ezekiel Elliott’s Case
Elliott appealed his suspension first within the NFL and, pursuant to the conduct policy, it was heard by Commissioner Goodell’s designee, Harold Henderson, on August 29, 2017.[24] In years past, a suspension appeal often meant a reduced sentence and that everyone would move forward, but after two high-profile losses, the League needed to show it meant business. Its revised policy put the League on stronger footing to hold its ground. The appeal hearings lasted two and a half days, and with the regular season only ten days away, Elliott filed a petition in the Eastern District of Texas to vacate the pending decision.[25] The argument against the suspension was predominantly that the suspension and arbitration processes were unfair because the review was incomplete after certain pieces of evidence and potential witnesses were barred from consideration. The NFL relied upon the broad disciplinary powers provided to it in the collective bargaining agreement, and the later drafted Personal Conduct Policy, to review whichever evidence it deemed relevant and asserted that those requirements were met during this process.[26] Elliott also filed his first motion for a temporary restraining order of the suspension.
A temporary restraining order (TRO) in this case provided for an emergency hearing to prevent the suspension from going into effect. To secure that ruling, Elliott needed to demonstrate that he would suffer immediate, irreparable injury unless the order was issued. In Elliott’s case, the potential for irreparable harm was always pretty clear with the season so close to starting. Waiting for the court to schedule a full hearing on the merits would mean that Elliott was forced to miss games and effectively serve part of his suspension before the court ruled on its legality. While appealing in the Eastern District of Texas, the NFL’s arbitrator, Harold Henderson, issued his ruling on September 5, 2017, that the six-game suspension would stand, and the NFL filed in the Southern District of New York, where the arbitration was held, to get an order affirming its decision.[27] The Texas judge granted Elliott the TRO on September 8, 2015, and the NFL appealed to the U.S. 5th Circuit Court on the grounds that Elliott filed this case prematurely because he opposed the arbitrator’s decision before finding out what it was.[28] On October 12, 2017, the 5th Circuit agreed with the NFL, rescinded the TRO, and ordered the District Court in Texas to dismiss the claim, which temporarily reinstated the suspension.[29]
On October 16, 2017, Elliott filed in the Southern District of New York to get another TRO issued, while in the meantime he was unable to practice or have contact with coaches.[30] The Court held a hearing the following day and the judge granted a TRO, thereby allowing Elliott to play in the next 2 games because the TRO was effective for fourteen days, as most are. On October 30, 2017, Elliott had another hearing before the Southern District to determine whether they would issue the one-time extension of their TRO for his case, but this request was denied.[31] Extensions to a TRO are given out sparingly since they are intended to be a short-term stopgap before a more developed review of the case takes place through a petition for a preliminary injunction. A preliminary injunction, unlike a TRO, can stay in place up until a case gets to trial, but it carries an additional burden to the petitioner. Along with showing irreparable harm, petitioners must demonstrate it is more likely than not that they will win the case at trial to receive a permanent injunction.
Elliott applied for such a preliminary injunction with the U.S. 2nd Circuit Court of Appeals and on November 3, 2017, they issued an administrative stay postponing the suspension yet again until they could conduct a hearing on his request.[32] On November 9, 2017, the 2nd Circuit denied his motion for a preliminary injunction, leaving him with few legal options to avoid serving the six-game suspension.[33] Why did they reject his request? While the irreparable harm analysis still cut in Elliott’s favor, the Court supported the NFL’s position that it had broad authority over what evidence to consider in levying suspensions and what the appropriate severity should be.[34] After the ruling by the 2nd Circuit’s three judge panel, Elliott had exhausted his guaranteed appeals under the law and only had two immediate options. He could appeal en banc to the 2nd Circuit and have all of its judges sit and rehear the request, or he could appeal directly to the U.S. Supreme Court. Neither court was obligated to accept his request to consider the issues, so on November 15, 2017, Elliott announced that he would give up his fight against the suspension and serve the remaining games.[35]
What This Means for Future Cases
Elliott’s acceptance of the suspension occurred at the same stage of the case as when Tom Brady elected to discontinue his appeal. After a couple losses seemingly chipped away its authority, the NFL had won two high-profile cases in a row—that is, if you consider it winning to have a multi-year process drag a prominent league star through extensive legal proceedings for them to eventually miss a quarter or more of your sports season. Ultimately though, these battles were as much for the future of League discipline as they were for the individual cases. The League needed the courts to reassert its broad authority under the CBA and its Personal Conduct Policy to hopefully ensure smoother disciplinary resolutions in the future. After getting that affirmation, the NFL Players’ Association will likely strike back through their negotiations on the next CBA, which must be ratified for the 2020-2021 season, rather than continued challenges in court. With a number of contentious issues set for this next negotiation, including revised profit sharing, the right of players to protest, concussion concerns, and guaranteed contracts, the Personal Conduct Policy and player discipline may become another issue pushing the league towards a work stoppage. However, both sides seem to desire a smoother resolution to future disciplinary disputes like Ezekiel Elliott’s, so perhaps that serves as a bridge or a bargaining chip to weigh against the NFL’s many other labor issues.
[1] See John Breech Lead NFL Investigator In Ezekiel Elliott Case Reportedly Recommended No Suspension, CBSSports.com, (September 1, 2017), https://www.cbssports.com/nfl/news/lead-nfl-investigator-in-ezekiel-elliott-case-reportedly-recommended-no-suspension/
[2] Id.
[3] Id.
[4] See 29 U.S.C. § 159(a).
[5] See NFL CBA 2011-2020, Art. 46 §1(a) available at https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf.
[6] Ray Rice, Tr., 164:25-165:6 (Goodell); Ray Rice, Tr., 385:2-386:13 (Birch); see also Bounty, 16 Final Decision 4 (Dec. 11, 2012); Ray Rice, Exhibit 33.
[7] Id.
[8] In the Matter of Ray Rice, Decision, 1 (Nov. 28, 2014).
[9] See National Football League, 2008 Personal Conduct Policy 1-3 (2007), available at http://www.prostaronline.com/draftee/personal_conduct_policy.pdf.
[10] NFL Communications, Key Elements of New Personal Conduct Policy, NFLcommunications.com, (Dec. 10, 2014), https://nfllabor.files.wordpress.com/2014/12/12-10-14-key-elements.pdf.
[11] See In the Matter of Ray Rice, Decision, 2 (Nov. 28, 2014).
[12] See id.
[13] Id.
[14] See Ray Rice, Decision, 15.
[15] Id. at 18.
[16] Id.
[17] Id.
[18] See id.
[19] Molly Bloom, Adrian Peterson’s Suspension: What You Need To Know, MPRNews.org, (Nov. 18, 2014, 10:33pm), http://www.mprnews.org/story/2014/11/18/adrian-peterson.
[20] Id.
[21] Id.
[22] NFLPA v. NFL Management Council, CASE 0:14-cv-04990-DSD-JSM, 13, (USDC Dist. Minn. 2015).
[23] Ray Rice, Exhibit 42; Ray Rice Tr. 204:3-21.
[24] See Kate Hairopoulos Ezekiel Elliott Timeline: The Suspension, The Appeal, And Where The Cowboys RB Stands Now, Sportsday.Dallasnews.com, (November 15, 2017), https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/11/09/ezekiel-elliott-timeline-suspension-appeal-cowboys-rb-stands-now
[25] Id.
[26] See Kate Hairopoulos Ezekiel Elliott Timeline: The Suspension, The Appeal, And Where The Cowboys RB Stands Now, Sportsday.Dallasnews.com, (November 15, 2017), https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/11/09/ezekiel-elliott-timeline-suspension-appeal-cowboys-rb-stands-now
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] See Jeanna Thomas Ezekiel Elliott Suspension Back On Effective Immediately With 2nd Circuit’s Latest Ruling, SBNation.com, (November 9, 2017), https://www.sbnation.com/2017/11/9/16603064/ezekiel-elliott-6-game-suspension-domestic-violence-appeal
[35] See Kate Hairopoulos Why Ezekiel Elliott Withdrew Appeal Of Six Game Suspension; What’s Next For The Cowboys RB, Sportsday.Dallasnews.com, (November 15, 2017), https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/11/15/ezekiel-elliott-withdrawing-appeal-six-game-suspension-according-report
