The NFL Versus Ezekiel Elliott, Part Three

Nov 10, 2017

By Jeff Birren, Senior Writer
The New York District: New Judge, New Result
The ongoing battle between the NFL and NFL Players’ Association over Ezekiel Elliott continues to take daily twists and turns. When SLA last looked at the case (SLA, “The NFL Versus Ezekiel Elliott, Resumed” Volume 14, Issue 20, 10-27-17), a hearing was scheduled on Monday, October 30, 2017 before United States District Court Judge Katherine Polk Failla in on the NFLPA’s motion for a preliminary injunction. The judge announced during the hearing that she would issue a ruling that evening. She made good on that promise.
The court issued a 24-page opinion that evening. She noted that the NFLPA had appealed the arbitrator’s decision while the NFL “seeks confirmation of the (underlying) arbitral award” and that “both parties to this action have staked out litigation positions with specific reference to last year’s decision by the Second Circuit” in the Brady II case [(National Football League Management Council v. NFL Players’ Association, Case No. 1:17-cv-06761 KPF, United States District Court, S.D. N.Y. (“Elliott”) 10-30-17) at 1, (Brady II: NFLMC V. NFLPA, 820 F.3D 527 (2ND Cir. 2016)]. The NFLMC “argues that Brady II compels affirmance of the arbitrator’s decision” and the “NFLPA contends with equal force that the ‘fundamental fairness’ argument left open by Brady II applies to the arbitrator’s decision and compels its reversal” (Id. at 2).
The court stated that after “reviewing the parties’ comprehensive written submissions and hearing extensive oral argument earlier today, the Court concludes that, on this record, the NFLPA has failed to demonstrate a substantial question warranting the extraordinary remedy of injunctive relief or a balance of hardships that decidedly weighs in its favor. While reasonable minds could differ on the evidentiary decision made by the arbitrator, the proceedings in their totality accorded with the CBA and PCP (Personal Conduct Policy)—and, to the extent such an inquiry applies, with principles of fundamental fairness” (Id.).
The court reviewed the facts and on page five, took aim at the NFLPA’s filings. “The NFLPA’s submissions are replete with references to intra-league conspiracies, conflicts of interest, and inconsistent (if not false) statements on the part of certain NFL personnel. The Court has found that the bulk of these intimations of nefarious conduct are not borne out by the record” (Id. at 5, fn. 3). The court also spent nearly three pages discussing the procedural history of the dispute. (See also, “Breaking News: Analyzing the NFL and NFLPA’s Arguments to Fifth Circuit in Elliott Case” SLA, 9- 29, 2017).
The court quoted Brady II that “emphasized the ‘narrowly circumscribed and highly deferential’ function that courts playing in reviewing labor arbitration awards under the LMRA” (Id. at 13) (Labor Management Arbitration Act, “LMRA”). The court stated that the “NFLPA’s burden in seeking a preliminary injunction is this case is weighty” (Id. at 14).
The court rejected the NFLPA’s contention that the “fundamental fairness” standard found in the Federal Arbitration Act (“FAA”) applies in LMRA arbitration cases (Id.). The NFLPA argued that it was likely to prevail on the merits, or alternatively, that it had raised a serious question as to the merits and thus was entitled to a preliminary injunction because the balance of hardships tips in its favor. The court disagreed: “Under scrutiny, neither of these conclusions holds water” (Id.).
The court noted that the Second Circuit had never applied the “fundamental fairness” standard from the FAA to LMRA arbitration awards, quoting from Brady II. Moreover, the Supreme Court “has long held, courts reviewing arbitral awards under the LMRA may not vacate an award even if the arbitrator “committed serious errors” (Id. at 16).
The court cited one commentator who found “that courts reviewing arbitral awards have been more receptive to arguments raised by NFL players than other unionized workers, thereby creating unequal access to justice among workers who participate in arbitrations subject to the LMRA, (citation omitted.) An enlarged scope of judicial review in LMRA cases would therefore have practical, injurious effects for parties to collective bargaining agreements engaged in arbitrations to resolve labor disputes” (Id. at 17).
The court also analyzed the case under the fundamental fairness standard. Shifting through the evidence, it concluded, “the NFLPA has failed to show that Elliott’s arbitration hearing fell below this standard” (Id. at 18). For example, the NFLPA argued that the arbitrator failed to issue a subpoena for the complaining witness, Ms. Thompson. “Even under fundamental fairness review, however, arbitrators are not required to apply the normal rules of evidence that might otherwise compel a right of confrontation (citation omitted). The CBA thus provides no express authority for an arbitrator to compel anyone, much less a non-NFL employee to testify” (Id. at 19). The court further found that the arbitrator was “within his authority in denying the NFLPA’s request for the NFL’s investigator notes, as nothing in the CBA required him to accede to that demand. Moreover, the Second Circuit rejected an almost identical argument in Brady II, when the NFLPA sought interview notes from outside investigators based on the slim discovery provision in the CBA” (Id. at 20, fn. 5).
The court spent several pages rejecting the NFLPA’s assertion that the balance of harms tipped decidedly in its favor, though this “is a closer question” (Id.). “As for damage to Elliott’s reputation, cases in this Circuit require a more concrete economic impact than mere negative publicity to constitute irreparable harm” (Id. at 21). The court distinguished the NFLPA’s cited cases that supported the finding of irreparable harm.
Finally, the court rejected the NFLPA’s remaining arguments. It found that “the harms identified by the NFLPA are either speculative, insufficient to warrant the extraordinary remedy of injunctive relief, and/or outweighed by the concerns identified by the NFLMC. Turning finally to the issue of public interest, the Court finds that here, too, the NFLPA’s arguments fail to carry the day” (Id. at 23).
The court concluded by denying the preliminary injunction, but stayed enforcement of the order “for 24 hours, to afford the parties an opportunity to consider their appellate options” (Id. at 24). “24 hours” greatly exceeded the length of time before the next court filing.
Jerry Jones Weighs In
NFL owners rarely publicly comment on legal maneuverings involving the NFL and one of the team’s players, but now we are speaking of Jerry Jones. The day of the hearing before Judge Failla, Jones got out his message to Elliott, the team’s fans and courts. Jones was quoted in NFL Media, and, stating that what “is important is he gets a fair shake. Zeke has in no way, by any standard in this country, done anything wrong. He’s done nothing wrong. We, the league, have tried to say he’s done something we disagree with. We don’t agree with that. I want him to get a fair shot. He deserves that” (, Mike Florio, 10-30-17). Jones apparently thinks little of the arbitration proceeding.
Jones continued his media campaign the next day. He said the Elliott suspension was “absolutely” to appease the public. “I am very troubled by the swings we’ve had.” I’m sure (Goodell) would like to take back his initial Ray Rice decision and others…Because of that, Zeke is an overcorrection” (USA Today, Scott Gleeson, 10-31-17). Then, after the Second Circuit granted a temporary stay to Elliott on Friday, 11-3-17, Jones stated that he had “never seen such an ambiguous circumstance” as the Elliott matter, (, Josh Alper 11-3-17).
Jones clearly intended his comments to be viewed as criticism of Goodell as he did not stop there. This same week, the CEO of Papa Johns, John Schnatter, an NFL sponsor, blasted the NFL’s leadership. Jones then called Schnatter a “great American” (, Michael David Smith, 11-3-17). Is it irrelevant that Jones is the joint owner of 120 Papa John’s restaurants in Texas?
Back in Court
The NFLPA wasted no time in essentially telling judge Failla that she was wrong and that she should stay her order, apparently indefinitely. The day after her ruling, on 10-31-17 the NFLPA filed an “Emergency Motion for an Injunction Pending Appeal” in the case” (Elliott, Order 10-31-17, at 1). Moreover, the NFLPA stated that if she did not grant their requested stay, they would have “no choice” but to seek relief in the Second Circuit. The court declined to do so. “For the Court to grant the NFLPA’s motion for a stay at this stage would, in effect, be to reverse its decision of last evening denying the NFLPA’s motion for injunctive relief. The NFLPA’s memorandum in support of its motion for a stay, which memorandum focuses largely on sematic differences and non-precedential decisions, does not cause the Court to question its conclusion that, under the relevant precedent, the NFLPA has failed to demonstrate a substantial question of the merits and a balance of hardships tipping decidedly in its favor. Accordingly, the motion is DENIED” (Id. at 1-2) (emphasis in the original).
The Tuesday Surprise: Judge Failla, and Her Husband
The same day that Judge Failla rejected the NFLPA’s request for a stay of her order, it became public knowledge that Judge Failla is married to a partner at a law firm that has provided labor assistance to the NFL. More specifically, John E. Failla is a partner at Proskauer, Rose in the firms’ Insurance Recovery and Counseling, and Financial Services practice areas. Years ago, the NFL hired Proskauer labor partner Bob Batterman to assist in the CBA negotiations and strategy that led to the July 25, 2011 CBA. The NFL again retained Batterman in 2016 to again provide advice about the next round of negotiations.
Presumably, Mr. Failla has not been involved in the Elliott matter. Furthermore, Proskauer is not counsel for the NFL in the Elliott matter. The Model Code for Judicial Conduct Rule 2.11 (A)(1) and (A)(2)(a) would require Judge Failla to recuse herself in from the case if Failla or Proskauer was acting as counsel in the proceeding. Since Proskauer is not in the case, the recusal was not required by (A)(2)(a).
Yet Rule 2.11 (A) also states, in relevant part, that: “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” Once this news became public there were media outlets in Dallas publicly questioning Judge Failla’s decision to not recuse her. That is the way of modern media, but it is undeniable that if Elliott is ultimately suspended during the season, Cowboy fans will question the suspension by a New York judge, whose spouse is a partner for a law firm that gives labor advice to the NFL, which is a party in the Elliott case. Unfortunately for Cowboys’ fans, under current law, that decision rests with Judge Failla.
The NFLPA Files an Emergency Stay
The same day that the NFLPA moved for a stay in the district court, 10-31-17, it also filed a notice of interlocutory appeal in the Second Circuit. The next day, it filed for an emergency injunction along with a request for an expedited appeal in the Circuit. The NFLPA also sought an alternative remedy of an administrative stay while the Second Circuit considered their motion for an injunction. Their papers stressed the balance of hardships and focused on the number of cases wherein NFL players received injunctive relief during the pendency of their cases.
The NFL filed its opposition the next day, November 2, 2017. The NFL’s position was that there was no basis for both altering the status quo during the appeal and for the extraordinary relief of granting an injunction while the NFLPA appealed. The NFLPA filed a reply brief later that day.
Back in The Fifth Circuit, Or Not
When the events from the case in Texas and the Fifth Circuit were examined in this publication, the NFLPA had unsuccessfully sought to recall the mandate issued by the Fifth Circuit to the District Court to dismiss the case. One might expect that a petition for rehearing or hearing en banc would be filed. The Federal Rules of Appellate Procedure states that such a petition “may be filed within fourteen days of entry of judgment” (F.R.A.P. 40(a)(1). The Fifth Circuit entered judgment on October 12, 2017.
The NFLPA filed a Motion to Recall Mandate but the Circuit denied it on October 17, 2017. Judgment was entered by the District Court on October 17, 2017. However, as of this date, no petition for rehearing or rehearing en banc had been filed in the Fifth Circuit. Judge Failla noted of the lack of such a filing, and included that in her Opinion. “As of the date of this decision, the NFLPA has not filed a petition for rehearing en banc” (Elliott at 11). So, unless the Fifth Circuit’s docket sheet is incorrect seemingly there will be no more fun in the Fifth Circuit in this case. So, from the Big Easy we head back to the Big Apple.
A Stay Is Granted
On Friday morning, 11-3-17, Second Circuit Judge Susan I. Carney referred the NFLPA’s motion for an injunction pending appeal and for an expedited appeal “to the next available three-judge motions panel. IT IS FURTHER ORDERED that Appellant’s request for an administrative stay of the district court’s order is GRANTED. We note that the issuance of an administrative stay does not constitute a resolution on the merits” (NFL Management Council, Appellee v. NFL Players’ Association, Appellant, United States Court of Appeals For the Second Circuit, Case 17-3510, 11-3-17) (NFLMC v. NFLPA). With that, Elliott can play, at least until the three-judge panel weighs in, whenever that might be.
That same Friday, Elliott spoke to David Moore of the Dallas Morning News. He told Moore that: “this is bigger than a suspension. It’s bigger than football, them [the NFL] trying to make me something I’m not…. This is my name, and this is my reputation. This is something I’m going to have to life with beyond football. Every day is worth fighting” (, “Elliott On His Legal Fight” Charean Williams, 11-3-17.)
On Sunday, November 5, 2017 Elliott helped lead the Cowboys to victory over Kansas City Chiefs, rushing for 93 yards and one touchdown. The next day brought him welcome news.
The Second Circuit Acts
On Monday, November 6, 2017 Second Circuit Chief Judge A. Kratzman issued an order. The order states: “A motion for injunction pending appeal of the district court’s denial of a preliminary injunction, for an expedited appeal, and administrative stay filed in the above-reference case has been added as an argued case to the substantive motions calendar for Thursday, November 9, 2017 at 2:00 PM in the Thurgood Marshall U.S. Courthouse, New York, NY 10007, 17th floor, Room 1705.” The court’s website revealed that the panel will be Dennis Jacobs, Debra Ann Livingston, and Christopher F. Droney.
This case is the only item on the court’s 2 PM “Motions” calendar, and that calendar states that it will be held in Room 1703, not 1705 so yes, someone in the system made a mistake. Each side has been allotted fifteen minutes for argument. It will be an interesting afternoon in Manhattan and no doubt the room will be crowded. It will be the second time in a little more than a month that this case will have appeared before one of the Federal Circuit Courts.
These pages will cover for further developments in this case, whatever and whenever they might be.
Editor’s Note: Late Thursday afternoon, the Second U.S. Circuit Court of Appeals denied the NFLPA’s request to block Elliott’s suspension. More details will follow in future issues.
Birren is the former General Counsel of the Oakland Raiders.


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