By Jeff Birren, Senior Writer
When this story last appeared, Elliott’s “emergency injunction pending appeal of the district court’s denial of his request for a preliminary injunction” had just been denied by the Second Circuit (National Football League Management Council v. National Football League Players Association, United States Court of Appeals for the Second Circuit, Case. No. 17-3510, November 9, 2017 (“Elliott”)). The court stated that Elliott “had failed to meet the requisite standard” (Id.). The Circuit then terminated the temporary stay.
The Circuit did grant the request for an expedited appeal of the denial of the request for a preliminary injunction. It directed the clerk of the court “to set an expedited schedule and set this appeal for the next available calendar” (Id.). Later that same day, the clerk of the court issued the scheduling order. Elliott’s opening brief was “due November 15, 2017 by 5 p.m.; Appellee’s response brief is due November 21, 2017 at 5 p.m.; Appellant’s reply brief is due November 27, 2017 at noon” (Elliott Order, Document 69, 11-9-17).
The Order placed oral argument on the calendar for December 1, 2017 and gave each side 15 minutes. Although the Circuit had published a calendar for that date, after this Order the Elliott case was placed at the top of the calendar. It will thus be argued on Friday, December 1, 2017 at 10:00 AM (EST) in Courtroom 1703 in the Thurgood Marshall US Courthouse in Manhattan. As of this writing the panel had not been named.
The Immediate Impact
That ruling meant that the NFL was free to suspend Elliott and it wasted no time in doing so. Consequently, Elliott missed the Cowboys’ game with Atlanta Falcons on November 12, 2017. That four-week period would also mean that he would miss the games on November 19, November 26 and Thursday, November 30, 2017.
The fight over Elliott also became a fight between Cowboys’ owner Jerry Jones and NFL Commissioner Roger Goodell. On November 8, 2017 a short item appeared in the Fort Worth Star-Telegram. It stated that “according to a source,” “Jones believes he was lied to by Goodell who told him Elliott, who was never charged or arrested in the case, would face no suspension and considers it an unforgiveable breach of trust” (Fort Worth Star-Telegram, Clarence E. Hill, Jr. “Report: Angry Jones Hires Lawyer” (November 8, 2017)). Media reports also stated that Jones had hired litigator David Boies in a threat to sue the NFL to block a contract extension for Goodell. The proposed contract would guarantee Goodell $50 million a year and provide him with a free private jet for life.
Back In The District Court
Prior to the Second Circuit’s action, the NFL had sought a conference to set the schedule for summary judgment motions. The NFLPA opposed this step while the case was in the Second Circuit, as any such ruling “will result in guidance…on the issues central to the parties’ cross-motions” (Elliott, Letter to Judge Katherine Polk Failla, November 7, 2017, Document # 65). The judge granted that application. It ordered that within 24 hours of a decision from the Circuit, “the parties shall jointly submit either a single proposed briefing schedule or, the parties are unable to so agree, each party’s proposed briefing schedule” (Id. at 3)(the judge entered this at the end of the NFLPA’s letter).
As another interesting twist, NFLPA Executive Director DeMaurice F. Smith was admitted to appear pro hac vice by the court on 11-6-17, (Elliott, Document #62). It is hard to imagine that he will actually argue the case, however interesting that might be.
And then, with less than 24 hours to file Elliott’s opening brief, his agent, Rocky Arceneaux and lawyer, Frank Salzano, released the following statement:
“In consultation with the NFLPA and his lawyers, and after careful deliberation and review of the recent Second Circuit decisions, Mr. Elliott has decided to forego any further appeals and will serve the remaining suspension. This decision arises from a practical assessment of the current legal landscape. Mr. Elliott’s desire for closure in this matter is in his best interest, as well as the best interests of his teammates, family and friends.
This decision is in no way an admission of any wrongdoing, and Mr. Elliott is pleased that the legal fight mounted by he and his team resulting in disclosing many hidden truths regarding this matter as well as publicly exposing the NFL’s mismanagement of its disciplinary process.
Mr. Elliott will maximize his time away from the game and come back even stronger both on and off the field. He intends to release a final personal statement in the upcoming weeks and until then we have no further comment.”
Later in the same day, the NFLPA put out its own statement. It reads, in its entirety as follows:
“On behalf of all players, the Union appealed the suspension of Ezekiel Elliott to its logical conclusion and we are withdrawing our lawsuit.
Our vigilant fight on behalf of Ezekiel once again exposed the NFL’s disciplinary process as a sham and a lie. They hired several former federal prosecutors, brought in “experts” and imposed a process with the stated goal of “getting it right,” yet the management council refuses to step in and stop repeated manipulation of an already awful League-imposed system.”
And with that, it was over. Elliott, who had left the country after the suspension began, will now also miss the games on December 10 and December 17, 2017. He will return for the last two weeks of the regular season.
He obviously realized that in view of the Second Circuit’s timing that there would be no resolution by the Second Circuit on December 1, 2013, and that a 2-1 split in the panel could easily delay the decision past both the game on December 10, 2017 and the game on December 17, 2017. Thus continuing the fight meant weeks more uncertainty with the possibility that even a victory would guarantee that the suspension would be shortened by the Second Circuit. Moreover, the NFLPA wanted to avoid the Second Circuit right from the start due to last year’s loss in the Brady II case (NFLMC V. NFLPA, 820 F.3D 527 (2ND Cir. 2016)). That precedent was now staring Elliott squarely in the face so it is possible that given the timing and the uphill battle to overcome that decision, Elliott decided to simply walk away from the case and accept the suspension.
That said, it is remarkable about how far this case came, literally, in less than three months. On September 8, 2017 a United States District Court judge in Texas issued Elliott a preliminary injunction. It did so, because: “…the Court finds, that Elliott did not receive a fundamentally fair hearing, necessitating the Court grant the request for preliminary injunction” (NFLPA on its own behalf and on behalf of Ezekiel Elliott v. NFL, NFL Management Council, Civil Action No. 4:17-CV-00615, Judge Mazzant, United States District Court for the Eastern District of Texas). Today, less than three months later, the case is over as Elliott walked away and accepted his suspension. It should be a reminder that very often it is better to negotiate than litigate.
Birren is the former general counsel of the Oakland Raiders.