Social issues & the extent of the NFL Commissioner’s powers: A review of Ezekiel Elliott caseAdam Banner
Ezekiel Elliott is running back for the Dallas Cowboys. In July 2016, he was accused of assaulting a woman1. When a prosecutor decided2 conflicting evidence disclosed during the police investigation didn’t rise to the level of a prosecutable criminal offense under Ohio law, the National Football League chose to conduct its own year-long investigation into the matter.
The investigation resulted in Elliott being suspended for six games. Elliot then appealed his suspension to the NFL through arbitration and lost. Simultaneously, the NFL Players Association (NFLPA), on Elliott’s behalf, sued the league in federal court3 claiming the NFL violated fundamental fairness through its league-wide disciplinary process for players. The suit relied upon the Federal Arbitration Act and Labor Management Relations Act and claims that the NFL violated both.
This article examines:
The wide ranging powers of the Commissioner under Article 46 of the NFL Collective Bargaining Agreement; and
Elliot’s (ultimately unsuccessful) attempts to challenge the NFL’s six-game suspension in Court.
Article 46 of the NFL Collective Bargaining Agreement controls
A federal district court in Texas initially granted Elliott’s injunction against the league, effectively staying, or pausing, his suspension. In any other situation, few media outlets would bother reporting on a case that’s really more about labor unions, collective bargaining agreements, and contract law – but for the allegations of domestic abuse. Most employers don’t possess the power to punish employees for conduct unrelated to their jobs which occurs away from the workplace. Most employers also don’t have a collective bargaining agreement with their employees though.
The NFLPA, the union which represents NFL players, previously agreed on behalf of all players to the inclusion of Article 46 into the league’s Collective Bargaining Agreement. Article 46 places an enormous amount of power in the hands of the league commissioner to discipline players. Article 46 Section 1(a) states:
League Discipline: Notwithstanding anything stated in Article 43: (a) All disputes involving a fine or suspension imposed upon a player for conduct on the playing field (other than as described in Subsection (b) below) or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player’s approval, may appeal in writing to the Commissioner.4
Once notified of an impending fine or suspension, a player (or the NFLPA) has the right to appeal the decision to the commissioner within three days. A player has the right, which Elliott chose to exercise, to seek arbitration. Unlike the usual arbitration proceedings in which a decision is rendered by a neutral arbitrator, the Collective Bargaining Agreement allows for either the commissioner or an arbitrator selected by the NFL to decide the case.
A review of Article 46 reveals that the provisions governing arbitration hearings are surprisingly sparse. All in all, mandates regarding the rights of players and responsibilities of the league span less than three pages. The section specifically regarding hearings is approximately one page. Most of that section focuses on procedure. Consequently, there is not much in the way of policy or explanation of players’ rights. More language might further interpret certain sub-sections and provisions of Article 46. Not surprisingly, the bare-bones provisions might ultimately play to the NFL’s benefit in the long run.
Only portions of Article 46 were addressed during the various courts decisions
When the Texas federal district court granted a stay of the six-game suspension, the NFL countered by seeking dismissal of the lawsuit while also filing its own action in another federal district court (the Southern District of New York), seeking confirmation and enforcement of the suspension. It’s the same path the league took with Tom Brady and the “Deflategate” controversy. When the Texas district court refused to reconsider its ruling on the stay, the NFL appealed to the Fifth Circuit Court of Appeals, asking it to review the Texas court’s decision.
In a 2-1 decision,5 the Fifth Circuit Court of Appeals ruled the lawsuit filed by the NFLPA in the Eastern District of Texas should be dismissed. The Fifth Circuit found that the NFLPA’s lawsuit was filed too early, thus depriving the Texas court of any jurisdiction to enter orders regarding the matter (since it was yet to be announced that the suspension would be upheld). Interestingly, the one dissenting vote focused on the fact that the NFL’s Collective Bargaining Agreement allows players “to present, by testimony or otherwise, any evidence relevant to the hearing…”6
After Elliott’s lawsuit in Texas was dismissed, he was forced to defend against the NFL’s own lawsuit still pending in the Southern District of New York. Elliott requested an emergency injunction allowing him to play while the lawsuit was litigated in the New York district court. The injunction was initially granted (only because the presiding judge was on vacation) and then ultimately denied. Elliott then appealed that denial to the Second Circuit Court of Appeals while also asking again for an emergency injunction that would allow him to play while his appeal was litigated.
The Second Circuit denied his request for an emergency injunction, but still set his appeal for an expedited hearing on the merits. Six days after that decision though, Ezekiel Elliott withdrew his appeal to the 2nd Circuit Court of Appeals and accepted his suspension.
Options still existed for Elliott to appeal the suspension, but were they worth it?
Elliott still had a fight in federal court if he wanted it. Courts will not rubber stamp arbitration rulings that are devoid of fundamental fairness. Elliott had a real, tangible argument in his favor.
Sure, Elliott’s appeal would have been an uphill battle, as the United States Supreme Court has previously limited7 federal courts’ ability to expand their already limited scope of judicial review in arbitration cases. That means terms agreed upon by the parties will usually be upheld. As such, Elliott’s fight against the Collective Bargaining Agreement’s hearing-procedure, as interpreted by the NFL, would have been a steep climb. Though there are very few grounds8 for vacating or modifying an arbitration award to begin with, a successful challenge could be made, in theory, when an arbitrator is guilty of “refusing to hear evidence pertinent and material to the controversy…”9
Consequently, as the dissenting vote in the Fifth Circuit opinion noted, if Elliott chose to continue his legal battle, it would have been extremely important to maintain the status quo pending the resolution of the dispute. The status quo should have been for Elliott to continue playing, and thus earning his paycheck, until his federal appeal was decided on the merits of his argument. You can always enforce a suspension later; you can never take the suspension back once it starts.
The Law of Diminishing Returns…
And apparently that was the last straw for Elliott and his legal team. When the Second Circuit refused to allow him to keep working during the pendency of his appeal, maybe the writing was on the wall. As a criminal defense attorney, I have seen plenty of clients give up the ghost and accept punishment for various reasons. Regardless, I always see an underlying similarity. There comes a point in any situation, for any person, where the potential benefit is simply outweighed by the definite detriment. For Ezekiel Elliott, it could have been any number of factors, and they all make sense.
Domestic violence brought the Elliott case to national attention, but any potential battle regarding the now intact six-game suspension would have likely revolved around the specific language of the Collective Bargaining Agreement and whether fundamental fairness under a federal law prevails over a labor agreement negotiated between the NFLPA and the league.
Litigating the appeal to conclusion may have been delaying the inevitable, but now he – and the rest of the NFL – will continue to wonder whether the league’s disciplinary procedure is up to snuff. As other star players such as Jameis Winston face investigation by the NFL for their conduct off the field, it is hard to imagine Article 46 will escape more scrutiny.
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- Tags: Arbitration | Collective Bargaining | Dispute Resolution | Federal Arbitration Act | National Football League (NFL) | National Football League Players Association (NFLPA) | United States of America (USA)
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About the Author
Adam R. Banner is the founder and lead attorney at the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. Mr. Banner’s practice focuses solely on state and federal criminal defense including plea negotiations, jury trials, and criminal appeals. He represents the accused against allegations of sex crimes, violent crimes, drug crimes, and white collar crimes.