Breaking News: Analyzing the NFL and NFLPA’s Arguments to Fifth Circuit in Elliott Case

Sep 29, 2017

By Jeff Birren, Senior Writer
The war between the NFL and the NFL Players’ Association concerning the NFL’s ability to suspend Ezekiel Elliott is now on its fourth arena. In 2016, NFL Commissioner Roger Goodell began the process of potential discipline for violating NFL rules after reports emerged that Mr. Elliott had engaged in domestic violence. The local police responded in the first instance to complaints, but Elliott was never charged with a crime related to these incidents.
Elliott went on to have a great rookie season in 2016 and was named to four NFL All-First team lists for the season. The NFL internal investigation process moved slowly, and finally ended over a year later on August 11, 2017 when Goodell ordered Elliott suspended for the first six games of the 2017 NFL regular season.
The second arena was an arbitration proceeding between the NFL and NFL Players Association before Arbitrator Harold Henderson. While that arbitration process was still pending, on August 31, 2017 the NFLPA sued in U.S. District Court In Dallas to set aside it decision it assumed that Henderson would issue. It also sought a Temporary Restraining Order to prevent any suspension while the case was pending. The NFLPA was correct, and on Tuesday, September 4, 2017 Henderson affirmed the suspension.
The third arena was the District Court. The parties filed various motions, including a motion by the NFL to dismiss the case for lack of jurisdiction as the arbitrator had yet to rule when the case was filed. On Friday, September 8, 2017 United States District Court Judge Amos L. Mazzant blew past the request for a TRO and granted the NFLPA and Elliott a Preliminary Injunction that prevented the NFL from suspending Elliott. On Monday, September 11, 2017 the NFL filed an Emergency Motion to stay the injunction pending its appeal. Judge Mazzant rejected that request on September 18, 2017
Analyzing the Letter Briefs Filed on September 27
The fourth arena upon which the parties will act out this case is the United States Court of Appeals for the Fifth Circuit. After multiple filings by the parties, the Circuit issued the following Order on September 22, 2017:
The Court directs the parties to file a letter, no more than 5 pages by 5 p.m. Wednesday, September 27, 2017 on the issue of whether the district court had subject matter jurisdiction, and what would be the consequences.
Needless to say, the parties complied and submitted their respective letter briefs on Wednesday, September 27, 2017. The NFLPA filed first. It made five major points. The first is that its “allegation that the NFL breached the CBA was sufficient to vest the District Court with subject matter jurisdiction.” It contends that the LMRA gave the District Court jurisdiction once the NFLPA filed its lawsuit. Moreover, it asserts that prior Circuit rulings state “all that is required” is “an alleged violation” of a CBA. It then states that the district court correctly held that the withholding of evidence by the NFL “sufficiently pled that the NFL breached its obligations.”
Its second argument is that exhaustion of remedies “is a prudential consideration, not a jurisdictional prerequisite.” It further asserts that the LMRA does not require exhaustion and that a statement in a case to the contrary by the circuit was “without any analysis.” They also claim that several of the authorities previously “cited by the NFL below specifically confirm that exhaustion under the LMRA is a prudential, non-jurisdictional limitation.”
Its third argument is that exhaustion is satisfied in the Elliott case because there is an exception when application of the rule would defeat the overall purpose of federal labor relations policy. Such is the case when the “contractual remedies” “prove unsatisfactory or unworkable for the individual grievant.” It further argues that “any purported exhaustion deficiency has since been cured given that the arbitrator issued his final award.”
Its fourth argument is that labor policy supports the district court’s ruling that the exhaustion doctrine did not bare relief to Elliott. The NFLPA claims that the courts have a duty to “step in when there is a demonstrated absence of fundamental fairness.” This can occur when “circumstances… have impugned the integrity of the arbitration process.”
Its final argument is that Elliott satisfied the exhaustion requirement even if it is considered jurisdictional. All that was left for the NFLPA to do was “brace for the imminent award.” The NFLPA cited nine cases from the Fifth Circuit, three from the U.S. Supreme Court; two cases each from the First, Sixth, and Ninth Circuit and one from the Third and Second Circuits.
Obviously the NFL did not agree with anything the NFLPA argued. The NFL made less separate points but spent more time with each one. Its first argument was that the “district court plainly lacked jurisdiction over the NFLPA’s premature lawsuit.” What followed that opening was almost a page an a half of citations to support that proposition, including three United States Supreme Court opinions, the Labor Management Relations Act and the Federal Arbitration Act, “which expressly confines federal-court jurisdiction to review of an arbitral ‘award’ that has been ‘made.’” It also quote Wright & Miller: “federal courts lack subject-matter jurisdiction over such cases…if the employee has failed to exhaust contractual procedures for redress.” It quoted a Fifth Circuit opinion for the proposition “that Congress did not confer subject-matter jurisdiction on federal courts under the LMRA ‘unless the employee has exhausted contractual procedures for redress.”
The next argument is that in the Elliott matter, “it makes no difference whether the LMRA’s exhaustion requirement goes to subject-matter jurisdiction in a strict sense or is instead a quasi-jurisdictional mandatory prerequisite to filing suit.” The NFL quotes from recent NFLPA argument in a case. Just last year, the NFLPA “sought dismissal of an action based on a player’s ‘fail(ure) to exhaust his administrative remedies’ under the LMRA because he had not awaited the conclusion of his ‘pending arbitration concerning his potential discipline.’”
The NFL recites one of its Supreme Court decision and another Fifth Circuit opinion. It uses those cases to argue that “the NFLPA/s premature lawsuit must be dismissed regardless of whether the exhaustion requirement is strictly jurisdiction or otherwise mandatory; either way, what matters is that the NFLPA failed to satisfy it.” It goes on to point out that the NFL has argued from “day one” that the case must be dismissed because the NFL failed to exhaust its remedies prior to filing and “its failure to abide by that requirement necessitates dismissal.”
Moreover, that failure is not cured because the final arbitral award was subsequently issued. “Even the district court recognized that subsequent developments cannot cure a premature filing.” Furthermore, “the NFLPA has yet to identify a single case in which a federal court exercised jurisdiction over an arbitral award that was not final at the time the lawsuit was filed, even if the award later issued while the litigation was ongoing.”
The NFL then states that the consequences of the rule against premature filing are twofold. First, the Court should grant the stay of the injunction “as nothing in the stay equities favors maintaining an injunction entered by a court that lacked jurisdiction, and each day that ultra vires injunction remain in effect undermines the NFL’s bargained-for right to impose swift discipline on players who commit domestic violence.”
The other half of the equation is that “this Court can and should vacate the preliminary injunction right now and order the entire action dismissed. When an insurmountable defect is apparent at the outset of appellate proceedings, the appropriate and sensible thing to do is order the action dismissed.” In this last section it cites cases from the Fifth Circuit, the Seventh Circuit and the Eighth Circuit, and have a footnote that cites seven more cases. The letter brief ends as follows: “The bottom line is that the district court had no basis to act, and its ultra vires ruling should not be allowed to engender lingering uncertainty for the remainder of the NFL season.”
So, the issue as framed by the Fifth Circuit has been briefed and the two sides remain intractably apart. Now the attention will shift to the Fifth Circuit. The Court set oral argument on this issue for Monday, October 2, 2017 at 1:00 PM in the Federal Court in New Orleans. The court has given the parties 20 minutes each. This case will undoubtedly get more interesting, and more heated.


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