With NFL Commissioner Roger Goodell choosing Harold Henderson to handle the Ezekiel Elliott appeal hearing, the next question becomes this: What will the appeal hearing look like?
The CBA doesn’t provide much guidance. And by not much, I mean none. Article 46 says nothing at all about the legal standard that applies, the rights of the player to present evidence or confront witnesses, and/or the duty of the NFL to affirmatively prove its case.
The league office tells PFT that the Commissioner’s decision will be reviewed under the “arbitrary and capricious” standard, which means that it would be overturned only if deemed to be (duh) arbitrary and/or capricious. This implies that the question will simply be whether the Commissioner got it sufficiently wrong that it seems random and without rhyme or reason.
It’s unclear what Elliott will be able to do to prove that. Appeals in a court of law typically occur based on a record of evidence that is closed and completed. But the NFL often takes testimony during these hearings, which makes them instantly different from appeals pursued in the justice system.
For Elliott, the real question is whether Henderson will attempt to resolve the credibility of the witnesses, which is something Goodell didn’t do in making the original decision. This presumes that the NFL will actually be introducing its evidence, including testimony from Tiffany Thompson.
It’s unclear whether Thompson or Elliott ever have told their stories under oath. Thompson, whose text exchange with a friend shows a clear financial incentive as it relates to Elliott, has yet to sue Elliott for bodily injury and emotional distress arising from it. She still can; once she does, she’ll eventually be required to testify under oath.
If the NFL is going to stay in the business of supplementing the criminal justice system, the Court of Big Shield needs to look something like a normal court. Players who are accused of wrongdoing should have the right to face their accusers. The lawyers representing the players should be able to cross-examine the accusers.
Without such basic protections, it’s impossible to get to the truth in a manner that respects the rights of the player — especially when it comes to discipline for misconduct that has no connection whatsoever to the workplace.
If guilty of domestic violence, Elliott should pay the price. But the process for determining guilt or innocence must give him a fair chance to rebut potentially false or inaccurate claims. Without those protections, the floodgates will fly open for false and/or inaccurate claims to be made against many more NFL players.