NFL Stomping Grounds: The League Attempts to Make a Statement with Ezekiel Elliott Case

by Alexandria Murphy*

Ezekiel Elliott may not have been criminally charged in the alleged domestic abuse case against him, but that did not stop the National Football League (NFL) from conducting its own investigation and handing him a six-game suspension.[1] 

Rather than await his appeal through the NFL disciplinary system, Elliott filed a lawsuit in the United States District Court for the Eastern District of Texas to vacate whatever suspension resulted.[2]  He was allowed to play for the Cowboys in their first regular season game while he awaited the ruling on his temporary restraining order (“TRO”).[3]  On September 8, 2017, a Texas judge granted an injunction, blocking the suspension and effectively allowing Elliott to play for the Cowboys for the full 2017 season.[4] 

The saga between the parties, however, was only just beginning.

NFL Uses Commissioner Power to Set the Stage for Future Cases

In December 2014, the NFL instituted a Personal Conduct Policy (“Policy”) to create a consistent standard for handling future cases.[5]  Under this policy, as employees of the NFL, players are “held to a higher standard and must conduct [themselves] a way that is responsible, promotes the values of the NFL, and is lawful.”[6]

Failure to live up to this standard set by the NFL, regardless of criminal conviction or criminal charges, may result in disciplinary action by the League.[7]  This discipline can take the form of fines, suspension, community service, or “banishment from the league.”[8]  In essence, the personal conduct policy creates its own law for the League, with the Commissioner as judge.[9]  Through the events played out early in the Elliott case, the NFL was faced with the reality that they are “in the business of football, not law.”[10]

Unsurprisingly, the NFL followed the Policy strictly in the Elliot scandal.[11]  After the domestic violence accusations against Elliott in 2016, police conducted a thorough investigation of the alleged incident.[12]  Ultimately, criminal charges were not filed against Elliott, primarily due to “conflicting and inconsistent information.”[13]

The NFL initiated their own investigation, nonetheless, and conducted interviews to gather further information, determining that Elliott’s actions were contrary to the Policy and handing him a six-game suspension.[14]

The NFL Players Association Fires Back

The National Football League Players Association (“NFLPA”) has consistently argued against the Policy and broad commissioner power to penalize NFL players, citing a similar abuse in a case involving Tom Brady, in 2015.[15]  It is a widely-held opinion that Roger Goodell, Commissioner of the NFL, has routinely mishandled disciplinary cases against players in the League.[16]  This was evident in the TRO granted by a judge in favor of Elliott, which stated, “[b]ased upon preliminary injunction standard, the Court finds, that Elliott did not receive a fundamentally fair hearing, necessitating the Court grant the request for preliminary injunction.”[17] 

An important detail of the Elliott case involved lead investigator, Kia Roberts, who spoke with both Elliott and his accuser during the NFL’s investigation.[18]  Roberts found the witness “not credible” and had “serious reservations about disciplining Elliott” for the allegations, however she was not able to personally express her reservations to the players’ union, Elliott, or Goodell.[19] 

The Elliott case is just further support for the argument that the NFL’s disciplinary system is “grossly unfair and gives the commissioner too much power.”[20]

NFLPA and the NFL Go Back and Forth: Who Will Win This War?

The Ezekiel Elliott case became a stir of confusion, with fans having difficulty following the latest news and whether Elliott would or would not be on the field on the upcoming Sunday.[21] First, Elliott was granted a TRO in September, revoking his six-game suspension issued by the NFL Commissioner and allowing him to play.[22]

The NFL responded by appealing the injunction and filing an emergency stay to get Elliott off the field.[23]  The NFLPA immediately asked the court to deny the motion.[24]  Next, after not receiving a decision within the time requested, the NFL filed an appeal for an emergency stay to the Court of Appeals for the Fifth Circuit.[25] 

The NFL’s motive was clear: get Elliott off the field as soon as possible.  On September 18, 2017, Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas denied the NFL the stay.[26]  This left Elliott’s immediate fate in the hands of the Fifth Circuit, but there were many chapters of this saga left to be written.[27]

On October 12, 2017, the Court of Appeals for the Fifth Circuit ruled in favor of the NFL, formally reinstating Elliott’s suspension.[28]  The NFL was content with a win and Elliott off the field, but fans would not likely notice, as the Cowboys were on a “bye” week.[29]  During this bye week, the NFLPA and Elliott fought back, and the NFL’s win was short lived.[30]

To make things more complicated, the U.S. District Court for the Southern District of New York granted Elliott another TRO on October 17, 2017, again putting his suspension on hold and allowing him to play against the San Francisco 49ers in Week 7 and the Washington Redskins in Week 8.[31]  Although Elliott’s fate for the 2017 season was still up in the air, to the distaste of the NFL, he was certain to be on the football field until October 30, 2017.[32]

The Next Chapter

Ezekiel Elliott’s preliminary injunction hearing with the U.S. District Court for the Southern District of New York was October 30, 2017, the same day his TRO ran out and the day following a Cowboys win against the Washington Redskins.[33] 

The hearing culminated in the District Court denying the NFLPA’s request for an injunction, reinstating Elliott’s suspension, and turning the tables in the case, yet again.[34]

The court found that the NFL has a substantial interest in obtaining the benefits of its bargain and reinforced the precedent set in the Tom Brady case, that is federal courts are not the place to settle disputes between the NFL and the NFLPA.[35]  The court found that Commissioner Goodell acted within his authority in suspending Elliott.[36]

Pendulum Briefly Swings Back in Favor of the NFLPA

The NFLPA responded by filing an expedited appeal and emergency injunction requests with the Second Circuit, but it seemed Elliott was running out of chances to remain with the Cowboys for the full 2017 season.[37]

Elliott’s suspension was subsequently put on hold, yet again, thanks to a temporary stay by the Second Circuit, which allowed him to play in Week 9 against the Kansas City Chiefs.[38]  But the pendulum immediately swung back in favor of the NFL, bringing down the high of the Cowboys Week 9 win on, and off, the field.[39]  On November 9^th, the Second Circuit formally denied the emergency injunction pending his appeal, putting Elliott’s suspension back in place effective immediately.[40]

Although this case between the NFL and Elliott once appeared never-ending, it seemed this time Ezekiel Elliott would be permanently on the losing side.[41]  Beginning with Week 10, the clock of Elliott’s suspension started ticking and the Cowboys would play without him.[42]

Nothing Left but a Hail Mary

Elliott had very few options left to get back on the field before Week 16, akin to a “Hail Mary” pass at the end of the game.[43]  The Court of Appeals for the Second Circuit ordered that Elliott be granted an expedited appeal, scheduled for December 1, 2017.[44]  In the best case, and very unlikely, scenario, Elliott could have been back on the field for the Week 14 game against the New York Giants.[45]

With the odds not in his favor, Elliott chose to withdrawal his final appeal and face his full six-game suspension.[46]  This decision was largely due, in part, to the “nearly limitless discretion [given] to Goodell” by the NFL Collective Bargaining Agreement (“CBA”) in investigating, punishing and reviewing player conduct.[47]

Elliott returned from his suspension to play in Week 16 against the Seattle Seahawks and the final game of the season against the Philadelphia Eagles.[48]  The Cowboys had three wins and three losses during their time without their superstar running back and did not make the NFL Playoffs.[49]

The Aftermath

Jerry Jones, owner of the Cowboys, has vocalized his criticism of the rulings in the Elliott case, finding them to have more to do with the scope of commissioner authority than the issue of whether Elliott is guilty.[50]  Jones found Elliott to be a “victim of overcorrection” after the lack of discipline in previous domestic violence cases, namely the Ray Rice case.[51]

The ruling of the Second Circuit was a solid win for the NFL.[52]  The last thing the NFL wanted at the end of this saga was precedent that a court can interfere with the Commissioner’s decision.[53]  The situation turned from a battle between Elliott and the NFL, to an even greater power struggle between the NFLPA and the NFL over the fairness of the current player disciplinary practice.[54]

It looks as if the scope of the broad commissioner authority will remain intact until the CBA expires after the NFL’s 2020 season.[55]  After the saga of the Elliott case, this issue will likely be high on the agenda of the NFLPA in 2021 negotiations.[56]  If previous disputes are any indication, the battle between the NFL and the NFLPA is set to be a lengthy one.[57]

* Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D./M.B.A. Candidate, May 2019, Villanova University Charles Widger School of Law

[1] See Complaint at 5, NFL Players Ass’n v. NFL, No. 4:17-CV-00615 (E.D. Tex. Sept. 8, 2017) (stating NFLPA request, on behalf of Elliott, for TRO or preliminary injunction); see also Sarah Hardy, A Comprehensive Timeline of Ezekiel Elliott’s Domestic Violence Case, SBNATION (Nov. 30, 2017, 5:03 PM), https://www.sbnation.com/2017/8/29/16151642/ezekiel-elliott-timeline-domestic-violence-police-report-nfl-suspension-appeal (detailing events surrounding allegations against Ezekiel Elliott and NFL’s response to allegations).

[2] See Hardy, supra note 1 (explaining lawsuit primarily stated there was “league-orchestrated conspiracy . . . to hide critical information” and NFL director of investigations Kia Roberts found accuser was not credible in her allegations).

[3] See id. and accompanying text (discussing upholding of six-game suspension on September 5, 2017 but Elliott was allowed to play in Week 1 while awaiting ruling on attempt to block suspension).

[4] See NFL Players Ass’n v. NFL, 270 F. Supp. 3d 939, 955 (E.D. Tex. 2017) (noting court’s limited role in case, because “[t]he question before the Court is merely whether Elliott received a fundamentally fair hearing before the arbitrator.  The answer is [Elliott] did not”); see also Hardy, supra note 1 (stating judge granted request for preliminary injunction based on an unfair hearing, which will allow him to play until case plays out in court, effectively giving him his entire season on field).

[5] See generally National Football League, Personal Conduct Policy (2014),  http://static.nfl.com/static/content/public/photo/2014/12/10/0ap3000000441637.pdf (discussing new personal conduct policy, an extension of policy in place since 1997, and new measures included in policy).

[6] See id. at 2 (noting policy applies to players under contract—as well as other parties including owners, coaches and Commissioner—and prohibits conduct which includes “[a]ctual or threatened physical violence against another person, including dating violence, domestic violence, child abuse, and other forms of family violence”).

[7] See id. at 5 (discussing considerations and investigatory measures taken by League in advance of a disciplinary decision, noting “[y]ou have violated this policy if you have a disposition of a criminal proceeding (as defined), or if the evidence gathered by the league’s investigation demonstrates that you engaged in conduct prohibited by the Personal Conduct Policy”).

[8] See id. at 6 (discussing discipline that may be determined by League, specifically stating that “[d]epending on the nature of the violation and the record of the employee, discipline may be a fine, a suspension for a fixed or an indefinite period of time, a requirement of community service, a combination of the three, or banishment from the league”).

[9] See Roger Groves, The Ezekiel Elliott Appeal Is a Potential NFL Nightmare, Forbes (Aug. 17, 2017, 8:30 AM), https://www.forbes.com/sites/rogergroves/2017/08/17/the-ezekiel-elliott-appeal-is-potential-nfl-nightmare/#1efd43e75b7f (discussing NFL’s personal conduct policy and its lack of fairness during investigations, a key part of U.S. judicial system, and noting, “[t]he NFL commissioner is the judge, but he is not trained to judge matters based on the rule of law”).

[10] Id.

[11] See Hardy, supra note 1 (discussing history of enforcing Policy, noting “Elliott is only the third player—and the most recognizable name—to receive the baseline six-game suspension for domestic violence since the personal conduct policy was enacted in December 2014”).

[12] See id. (stating police did thorough investigation of case, with Columbus prosecutor writing “given the totality of the circumstances, I could not firmly conclude exactly what happened. Saying something happened versus having sufficient evidence to criminally charge someone are two completely different things”).

[13] Id. (discussing complete investigation by Columbus, Ohio Prosecutor Office and decision not to file criminal charges).

[14] See id. (discussing an NFL representative stating, “[i]t is not enough simply to avoid being found guilty of a crime . . . . We are all held to a higher standard and must conduct ourselves in a way that is responsible, promotes the values of the NFL, and is lawful”).

[15] See Ken Belson, Federal Judge Halts Ezekiel Elliott’s Suspension, N.Y. Times (Sept. 8, 2017), https://www.nytimes.com/2017/09/08/sports/federal-judge-halts-ezekiel-elliotts-suspension.html (discussing similarity between Elliott’s case and case involving Tom Brady in 2015, as well as  player union’s argument about distraction commissioner discipline causes, stating, “[t]his ‘imposed’ system remains problematic for players and the game, but as the honest and honorable testimony of a few N.F.L. employees recently revealed, it also demonstrates the continued lack of integrity within their own league office”).

[16] See id. (discussing lack of criminal charges against Elliott, inconsistent witness statements, and that “Goodell did not hear out an N.F.L. investigator who doubted there was enough evidence to justify the penalty”).

[17] See NFL Players Ass’n v. NFL, 270 F. Supp. 3d 939, 943 (E.D. Tex. 2017); see also Hardy, supra note 1 and accompanying text.

[18] See Michael Rosenberg, Even If the NFL Gets Its Way with Ezekiel Elliott, Roger Goodell Once Again Comes out the Loser, Sports Illustrated (Sept. 8, 2017), https://www.si.com/nfl/2017/09/08/ezekiel-elliott-suspension-roger-goodell-loses-again (“Kia Roberts, the league’s Director of Investigations, had serious reservations about disciplining Elliott for abusing his ex-girlfriend.”).

[19] See id. (discussing NFLPA’s contention that “the NFL withheld this information from the union, Elliott, and ‘possibly Commissioner Goodell’”).

[20] See Rosenberg, supra note 18.

[21] See Dom Cosentino, What’s Going on with the Ezekiel Elliott Case, and What Happens Next?, Deadspin (Sept. 7, 2017, 10:37 AM), https://deadspin.com/whats-going-on-with-the-ezekiel-elliott-case-and-what-1800818113 (discussing stir of confusion involving Elliott case and  “ongoing mystery about whether Elliott can play this season, and when”).

[22] See Hardy, supra note 1 (stating, on August 31, “Elliott’s attorneys filed a lawsuit in the U.S. District Court of Eastern Texas to vacate whatever suspension results from the appeal process. The lawsuit’s main contention is that there was a ‘league-orchestrated conspiracy . . . to hide critical information’”).

[23] See id. (discussing NFL’s appeal of Elliott’s injunction, noting that appeals process is often lengthy).

[24] See Hardy, supra note 1 (quoting NFLPA’s opposition to NFL’s appeal, “[t]he NFL faces no threat of irreparable harm if the stay is not granted, while others, including both Elliott and the Cowboys, will suffer substantial—in fact, severe and irreparable—harm”).

[25] See NFL Players Ass’n v. NFL, 874 F.3d 222, 229 (5th Cir. 2017) (noting NFL filed appeal to Fifth Circuit contending District Court lacked subject matter jurisdiction to issue preliminary injunction); see also Hardy, supra note 1(discussing NFL’s threat to file emergency stay to Fifth Circuit if their appeal was not decided within time requested).

[26] See Hardy, supra note 1 (noting District Court denied NFL’s motion, but Elliott’s fate ultimately is in the hands of Fifth Circuit).

[27] See id. (noting oral arguments for Fifth Circuit were set for October 2, days past NFL’s September 26 request for decision).

[28] See NFL Players Ass’n, 874 F.3d at 229 (noting Fifth Circuit decision to vacate ruling of TRO granted by District Court); see also Around the NFL Staff, Cowboys’ Ezekiel Elliott Eligible to Play this Weekend, NFL (Oct. 18, 2017, 8:31 AM), http://www.nfl.com/news/story/0ap3000000863279/article/federal-judge-grants-ezekiel-elliott-temporary-restraining-order (discussing latest events in Elliott case and TRO granted by Southern District of New York); see also Hardy, supra note 1 (explaining Fifth Circuit ruled in favor of NFL due to premature filing and lack of jurisdiction).

[29] See Hardy, supra note 1 (noting particular week of Fifth Circuit decision was also “bye” Week for Cowboys).

[30] See id. (stating NFLPA asked Fifth Circuit for en banc rehearing to be heard before every judge rather than three-judge panel, as well as filing TRO in U.S. District Court for the Southern District of New York).

[31] See NFL Mgmt. Council v. NFL Players Ass’n, No.17-cv-06761-KPF, 2017 U.S. Dist. LEXIS 171995, at *2–3 (S.D.N.Y. 2017) (noting TRO was granted in favor of Elliott until return of The Honorable Katherine P. Failla); see also Hardy, supra note 1 (stating TRO granted by U.S. District Court for the Southern District of New York only lasts until Monday, October 30, 2017, which is after Week 8 game against Washington Redskins); see also Austin Knoblauch, Ezekiel Elliott Eligible to Play Week 8 After Court Ruling, NFL (Oct. 23, 2017, 11:29 AM), http://www.nfl.com/news/story/0ap3000000866001/article/ezekiel-elliott-eligible-to-play-week-8-after-court-ruling (discussing NFL’s request for expedited preliminary injunction hearing).

[32] See Around the NFL Staff, supra note 28 (quoting NFL Network Insider, Ian Rapoport, “[w]hat happens now, of course, [is] impossible to predict but at the least [Elliott] will get a hearing to keep his suspension at bay a little bit longer”); Hardy, supra note 1 (discussing NFL’s multiple attempts to reinstate Elliott’s August 2017 suspension).

[33] See A.J. Perez, Judge Turns Down NFL Request to Move Up Ezekiel Elliott Hearing, USA Today (Oct. 23, 2017, 2:24 PM), https://www.usatoday.com/story/sports/nfl/cowboys/2017/10/23/judge-turns-down-nfl-request-move-up-ezekiel-elliott-hearing/789774001/ (discussing TRO granted until presiding judge returns to hear case on October 30, 2017).

[34] See NFL Mgmt. Council, 2017 U.S. Dist. LEXIS 171995, at *30–31 (discussing authority of  NFL CBA and denying NFLPA’s motion for preliminary injunction); see also Lindsay H. Jones, NFL ‘Pleased’ with Judge’s Ruling in Ezekiel Elliott Case, USA Today (Oct. 31, 2017, 1:14 PM), https://www.usatoday.com/story/sports/nfl/cowboys/2017/10/31/nfl-pleased-judge-ruling-ezekiel-elliott-cowboys-case/817050001/ (discussing outcome of district court hearing in favor of NFL).

[35] See A.J. Perez, Could Ezekiel Elliott Setback Keep Players from Going to Court to Settle Disputes?, USA Today, (Oct. 31, 2017, 8:27 AM), https://www.usatoday.com/story/sports/nfl/cowboys/2017/10/31/could-ezekiel-elliott-cowboys-setback-keep-nfl-players-going-court-settle-disputes/816303001/ (stating Judge Fallia cited precedent set in Tom Brady’s “Deflategate” case multiple times in her ruling against Elliott).

[36] See id. (discussing negotiated CBA between NFL and NFLPA).

[37] See Around the NFL Staff, NFLPA, Ezekiel Elliott Seek Emergency Stay on Ruling, NFL (Nov. 2, 2017, 4:19 PM), http://www.nfl.com/news/story/0ap3000000870468/article/nflpa-ezekiel-elliott-seek-emergency-stay-on-ruling  (discussing NFLPA’s response to District Court ruling in effort to get Elliott back on field).

[38] See Michael McCann, How Ezekiel Elliott Could Cut Two Games off Suspension, Sue Roger Goodell and NFL for Defamation, Sports Illustrated (November 9, 2017), https://www.si.com/nfl/2017/11/09/ezekiel-elliott-suspension-roger-goodell-defamation (discussing temporary stay issued by Second Circuit).

[39] See id. (discussing November 9, 2017 ruling by Second Circuit).

[40] See id. (stating that, while Elliott has been able to play with Cowboys for first part of season, “[his] season-long run from a six-game suspension has come to an end”).

[41] See id. (explaining reinstatement of Elliott’s suspension likely means he will miss next six games).

[42] See id. (stating that Elliott will likely be suspended until Week 16, Christmas Eve matchup with Seattle Seahawks).

[43] See id. (discussing limited options left to allow Elliott to return prior to Week 16, all which seem to be “plausible, albeit unlikely”).

[44] See id. (stating Second Circuit has not yet ruled whether District Court properly sided with NFL).

[45] See id. (stating that, while unlikely, if Elliott were to prevail upon appeal he would be allowed to play in Week 14 and would be reimbursed for four missed games).

[46] See Michael McCann, What Is the NFLPA’s Game Plan After Losing Elliott’s case?, Sports Illustrated (Nov. 16, 2017), https://www.si.com/nfl/2017/11/16/ezekiel-elliott-appeal-suspension-dallas-cowboys-nflpa (noting Elliott withdrew his appeal and began serving full six-game suspension, although this move did not mean that he admitted to allegations against him and continued to insist events never happened).

[47] See McCann, supra note 46 (discussing history of courts looking upon NFL Commissioner discretion favorably).

[48] See Patrik Walker, Ezekiel Elliott: ‘I’m Itching to Play’ Versus Eagles in Finale, 247Sports (Dec. 28, 2017, 7:51 AM), https://247sports.com/nfl/dallas-cowboys/Bolt/Dallas-Cowboys-RB-Ezekiel-Elliott-Im-itching-to-play-versus-Philadelphia-Eagles-in-finale-112812942 (discussing Elliott’s return to field in Cowboys loss to Seattle Seahawks and his desire to play in inconsequential final game of season against Philadelphia Eagles).

[49] See Todd Archer, Ezekiel Elliott Won’t Wonder What Could Have Been for the Cowboys, ESPN (Dec. 31, 2017), http://www.espn.com/nfl/story/_/id/21927883/ezekiel-elliott-not-thinking-how-dallas-cowboys-season-gone (discussing Elliott’s return to NFL after his suspension and how Cowboys fared during their time without him on field).

[50] See Todd Archer, Cowboys Owner Jerry Jones Says Ezekiel Elliott Paying for NFL’s Mistakes with Ray Rice, ESPN (Oct. 31, 2017), http://www.espn.com/nfl/story/_/id/21236774/dallas-cowboys-owner-jerry-jones-says-ezekiel-elliott-paying-mistakes-made-ray-rice (discussing comments made by Jerry Jones following U.S. District Court for the Southern District of New York ruling in favor of NFL).

[51] See id. (stating that Jones criticized broad Commissioner power and extremely harsh nature of penalty in Elliott case).

[52] See Daniel Rapaport, Ezekiel Elliott’s Preliminary Injunction Denied, Suspension Back in Place, Sports Illustrated (November 9, 2017) https://www.si.com/nfl/2017/11/09/ezekiel-elliott-suspension-news-preliminary-injunction-court-case (stating Second Circuit ruling was legal victory for NFL in case that has been ongoing throughout 2017 season).

[53] See Around the NFL Staff, supra note 28 (discussing attempt by NFL to confirm Commissioner Goodell’s authority to issue punishment based on “conduct detrimental” to League and to maintain that for which NFL believes they collectively bargained).

[54] See Hardy, supra note 1 (“Now, the situation is threatening to turn into a long, even nastier battle, not just as Elliott fights the suspension but as the NFL and NFL Players Association engage in another power struggle over the league’s disciplinary process.”).

[55] See Adam Sites, NFLPA Is Warning Players to Start Saving Money Now for a 2021 Lockout, SBNATION (May 30, 2017, 12:55 PM), https://www.sbnation.com/2017/5/30/15712404/nflpa-cba-nfl-lockout-2021-leverage-negotiations (discussing preparations of NFLPA for lockout in 2021 when NFL CBA is up for renegotiation, in hopes of NFLPA and players being on winning end of battle with League over CBA).

[56] See Tom Ryle, Ezekiel Elliott’s Case Is Really the First Skirmish in the Next CBA Negotiation, SBNATION (Oct. 24, 2017), https://www.bloggingtheboys.com/2017/10/24/16504558/ezekiel-elliotts-case-first-skirmish-in-the-next-cba-negotiation-dallas-cowboys-nflpa-roger-goodell (stating win for NFLPA in Elliott case would give them substantial leverage in upcoming CBA negotiations with NFL).

[57] See Sites, supra note 55 (discussing NFL lockout in 2011, which lasted for over four months).