NFL takes on the “irreparable harm” argument in Elliott case

AP

The paperwork filed by the NFL in response to Cowboys running back Ezekiel Elliott‘s lawsuit aimed at blocking his suspension is, for the most part, persuasive and expected. The league claims Elliott began the race to the courthouse prematurely by filing suit before a ruling from arbitrator Harold Henderson was issued, which justifies not only a denial of the effort to block the suspension pending the conclusion of the litigation but also a dismissal of the lawsuit entirely.

But the league undermines its otherwise well-crafted arguments by relitigating an issue that it has lost multiple other times: The NFL claims that a player who is kept from playing games while he potentially attacks a suspension successfully in court does not suffer “irreparable harm.”

From the StarCaps case to the Tom Brady lawsuit, judges consistently have agreed that football players who are kept from playing — and who later win a ruling that their suspensions were invalid — suffer harm that can’t be repaired with a traditional award of financial compensation for the wages lost during the suspension. A comparison of football players to other workers simply doesn’t fly in this setting; most employees would welcome what eventually becomes a post-hoc paid vacation. In contrast, many football players would play for free, and most if not all are chasing award, legacies, and team goals like making it to the playoffs and winning a Super Bowl.

So why include a losing argument in otherwise impressive legal documents? Apart from the fact that over-lawyering happens all the time (especially when lawyers are paid by the hour), the league knows that the same argument regarding “irreparable harm” applies to the still-new procedure for putting players on paid leave pending the resolution of criminal charges.

The league stubbornly insists that it’s not punishment to put a player on paid leave, since the player receives his regular salary while on the Commissioner’s Exempt list. At some point the league may have to defend that position in court. So the league can’t concede in Elliott’s case that he’ll suffer irreparable harm if he eventually gets paid for the six games he’ll miss, since that could become the foundation for an eventual attack on the league’s use of paid leave.

44 responses to “NFL takes on the “irreparable harm” argument in Elliott case

  1. Good grief NFL, stop trying be a vigilante justice group. Drop the charade of tarnishing the shield.

    Fans, quit supporting these suspensions.The NFL has brainwashed people into thinking players should be choirboys. They play football, we watch football. What difference does the players off field activities make to our enjoyment of the game?

  2. It was collectively bargained into the CBA so quit yer bitchin. Don’t do the crime if you can’t do the time (within the context of the CBA of course :))

  3. What the NFL does though is because they know the exact timing of their announcement they preposition their lawyers at the courthouse and then coordinate so the announcement and filing are within seconds of each other. What is the NFLPA to do, have their own lawyers follow the NFL lawyers so they can be standing there too physically blocking the NFL lawyers while they shoot their own filing? Do they bring NFL players to handle the blocking? Why does this start sounding like a football game?

    How important is it who files first?

  4. I would argue that a player does suffer irreparable harm if they miss any games for a suspension that is in the end deemed to be invalid. If the player fights and the suspension is lifted completely yet they were forced to miss a game or two, then the leage can’t just compensate missed salary. It would have impacted the players off the field value and it would have possibly impacted his role with the team. Many other things. I would argue just accusing a player is irreparable harm if it ends up being invalid. Particularly in a case where there is no criminal charge.

  5. In contrast, many football players would play for free, and most if not all are chasing award, legacies, and team goals like making it to the playoffs and winning a Super Bowl.

    ——————————-

    What a crock of self serving baloney. The NFL would be happy to let it’s players play for free. Good luck getting any of these players who equate the size of their paychecks to how much they are respected to actually do it.

    To think the players are any less greedy than the owners is to be willfully blind. The difference is the owners think long term with their greed and the players think short term with theirs.

  6. Let’s assume hypothetically that Elliott is 100% guilty but there was no suspension. Can any NFL fan explain how that would lessen their enjoyment of the games?

    Why do fans care if players use recreational drugs, get into fights, etc.? If the players off field conduct is all you’re thinking about while watching a game you probably should be watching something else.

  7. Gosh, this sounds exactly like the deflategate and bountygate cases. I wonder what the outcome will be?

  8. Part of the problem, of course, is that there is no restriction on the NFL as to how long they can postpone issuing a decision.
    The NFL arbitrator can effectively “suspend” the player by delaying their decision on the appeal. (This also happened in the Adrian Peterson case, if I recall).
    It’s almost like there should be policy on this…

  9. Isn’t instituting a suspension of a player, harm to that player’s reputation and name ? Look how we label people, Brady & Belichick are cheaters, Rice & Hardy are woman beaters. Although, Rice has learned from his mistakes and has tried to do all he can to rectify the situation, he’s been kept out of the league. Even a guy who has not been suspended, Kaepernick, has been kept the league for what he did. So, the NFL does much more harm to a player’s name than they realize.

  10. Irreparable harm is only one element. The test is sliding scale with the other element being “chance of success on the merits.” That one tips toward the NFL far stronger than IH tips toward zeke (i.e., has any player won a DV case?). That will be $500 NFL for my consultation on this. You’re welcome.

  11. viffty says:
    September 5, 2017 at 8:55 am
    It was collectively bargained into the CBA so quit yer bitchin. Don’t do the crime if you can’t do the time (within the context of the CBA of course :))
    ================================
    It was collectively bargained to purposely withhold key information from the lead investigator in order to suspend a player? Interesting.

  12. I don’t know what all the whining is about. You guys say just take your punishment like a man. Goodell has the power the nflpa bargained and everyone should just accept it, right?

  13. walker1191 says:
    September 5, 2017 at 9:25 am
    Gosh, this sounds exactly like the deflategate and bountygate cases. I wonder what the outcome will be?

    7 2 Rate This

    ———-

    Goodell will pay off as many judges as he needs to get the result he wants. He will also tell one of the judges to say “the evidence is overwhelming”, even though there is no evidence of any kind.

  14. In contrast, many football players would play for free

    ———————————–

    Oh wait, you’re serious. Let me laugh even harder!

    As usual, you never see “Union” or “NFLPA” in any of these “articles.”

  15. viffty says:
    September 5, 2017 at 8:55 am
    It was collectively bargained into the CBA so quit yer bitchin. Don’t do the crime if you can’t do the time (within the context of the CBA of course :))

    36 69 Rate This

    ———-

    Please don’t vote or procreate.

    Thanks.

    – US Taxpayers

  16. redlikethepig says:
    September 5, 2017 at 8:33 am
    Guilty everywhere but Texas.

    ————————————

    Innocent everywhere but the NFL.

  17. Lovetron says:
    September 5, 2017 at 10:11 am

    Innocent everywhere but the NFL.
    =============================
    And yet people still rush to the defense of the NFL. Even after an established pattern of lying (well before this debacle). Mind numbing.

  18. It would seem that the best way to work this would be that the player doesn’t begin serving a suspension until the case has been fully adjudicated, and the suspension is upheld. That would eliminate any loss of playing time or wages unless or until it’s been determined through the entire process that the suspension is warranted.

  19. “Elliott could have avoided all this by not laying hands on a woman. Is that concept so difficult to understand?”

    Only in Texas.

  20. viffty says:
    September 5, 2017 at 8:55 am
    It was collectively bargained into the CBA so quit yer bitchin. Don’t do the crime if you can’t do the time (within the context of the CBA of course :))

    **************************************************************
    Well, maybe the NFLPA should have had specified that all investigations fair. When you ignore the lead investigators recommendation of no suspensions (she was the only one to speak to the accuser)…..when that same investigator was barred from speaking to Goodell…..when the NFL refuses to turn over notes for Zeke’s appeal….refuses to let the defense team to speak to Thompson….claims they can tell when a bruise was given based on a photograph (which no doctor would ever attest to in court)……how can the NFL claim they didnt start with the premise that Zeke was guilty and work backwards to justify it.

  21. tylawspick6 says:
    September 5, 2017 at 9:57 am

    Goodell will pay off as many judges as he needs to get the result he wants. He will also tell one of the judges to say “the evidence is overwhelming”, even though there is no evidence of any kind.

    ——————————

    Much like the Brady case the people defending Elliot are not arguing the correct case. Does the league have the power to do what it did? Yes or No.

    This isn’t about the merits of Elliot’s accuser. The judges could side with Elliot in that regard but the NFLPA and Elliot would still lose the case because that isn’t what is relevant no matter how many times people post supporting him and tearing her down.

    There will also be another 20 pages of people posting gibberish on how the Elliot will sue the league for defamation and own the league.

    I’m still waiting on that Brady defamation suit where he would own the league. It must be true because every Patriot fan posted it a million times.

  22. eagleswin says:
    September 5, 2017 at 10:42 am

    Much like the Brady case the people defending Elliot are not arguing the correct case. Does the league have the power to do what it did? Yes or No.
    —————————–

    The league has the power, but they are still required to follow the law when they use it. So far, they haven’t figured that out.

  23. Remember all the Cowboys’ fans defending Brady when Goodell and the NFL made up lies and admitted in open court that they have no evidence of Brady doing anything? Yeah….me either.

    Time for Elliott to take it like a man. At lease he won’t get injured early in the season.

  24. Zeke is good enough and the team is good enough that he could be a legitimate MVP Candidate and the team has a chance to win the Super Bowl. If he gets suspended and the team gets off to a rocky start because of it, all of that could go away. How does the NFL think they can just back-pay a guy for a wrongful suspension and make it even when you consider that he could lose millions in endorsements from the deal? Not to mention what his teammates could lose, or what he already might have lost from being drug through the mud.

    This doesn’t just apply to Zeke. Tom Brady probably lost MVP last year because he missed the first four games. Sean Payton and the Saints haven’t been the same since he lost a year to BountyGate. This isn’t just a straight “paycheck per game” transaction. It affects everything on a much larger scale than whether or not a guy misses a paycheck.

  25. eagleswin says:
    September 5, 2017 at 10:42 am

    There will also be another 20 pages of people posting gibberish on how the Elliot will sue the league for defamation and own the league.
    ————————-

    The league disregarded the findings of the Columbus Police, and their lead investigator, and went ahead and branded Elliott as a domestic abuser.

    With all of the evidence that has been released, the NFL would have a hard time defending themselves if a case were brought against them and they had to actually defend the merits of their decision.

  26. monarch76 says:
    September 5, 2017 at 11:00 am
    The players need a better CBA. They agreed to the kangaroo court. Next CBA grow a pair and be an actual union.

    ***************************************************
    Again…..the NFLPA acted in good faith and incorrectly assumed that all investigations would be fair and just. Lets look at the person the NFL has hitched its wagon to:

    – She lied to the police about the abuse the night of Zeke’s bday party
    – She asked her friend to lie to the police about that night.
    – She was in a violent bar fight that night
    – She threatened to ruin Zeke after he refused let her into his party
    – She was having her bills paid by Zeke
    – She called Zeke 50 in 7 hours after he moved to Dallas prompting a harassment claim.
    – She hacked his email and contacted all his female contacts.
    – She discussed selling or extorting Zeke over a sex tape for the purpose of a boob job.
    – She created an email account for the purpose of selling the tape.
    – She taunted Zeke with the news she was having sex with Lucky Whithead (according to the NY Post story yesterday), which more than likely was the real reason Dallas so quickly parted ways with Whitehead.

    Zeke is NO saint either…he has done some dumb things that on its own should be 1 or 2 games away from the team. BUT, the NFL was clear that those things were not part of their decision…so you cant take those into account now.

    What kind of person lies to the cops, hacks someones email, calls incessantly after someone has moved away, talks about selling or extorting a sex tape for boob job money…then has sex with his coworker and then taunts him over it…..THIS IS THE PERSON THE NFL IS TYING THEIR OWN CREDIBILITY TO!!!!! Credibility is a two way street…..you don’t get to poke holes in Zekes credibility while ignore all of the shady and underhanded things this woman his done.

  27. eagleswin says:
    September 5, 2017 at 10:42 am
    tylawspick6 says:
    September 5, 2017 at 9:57 am

    Goodell will pay off as many judges as he needs to get the result he wants. He will also tell one of the judges to say “the evidence is overwhelming”, even though there is no evidence of any kind.

    ——————————

    Much like the Brady case the people defending Elliot are not arguing the correct case. Does the league have the power to do what it did? Yes or No.

    This isn’t about the merits of Elliot’s accuser. The judges could side with Elliot in that regard but the NFLPA and Elliot would still lose the case because that isn’t what is relevant no matter how many times people post supporting him and tearing her down.

    There will also be another 20 pages of people posting gibberish on how the Elliot will sue the league for defamation and own the league.

    I’m still waiting on that Brady defamation suit where he would own the league. It must be true because every Patriot fan posted it a million times.

    Every Patriot fan? Million times? Glad to see there’s no hyperbole today.

  28. steelerdeathstar says:
    September 5, 2017 at 10:28 am
    It would seem that the best way to work this would be that the player doesn’t begin serving a suspension until the case has been fully adjudicated, and the suspension is upheld. That would eliminate any loss of playing time or wages unless or until it’s been determined through the entire process that the suspension is warranted.
    =============================
    And yet, ironically, we should have already arrived at that point which tells you all you need to know about the National Farce League

  29. whatjusthapped says:
    September 5, 2017 at 10:31 am
    Elliott could have avoided all this by not laying hands on a woman. Is that concept so difficult to understand?
    =====================
    Or allow Kia Roberts to testify. Just sayin’.

  30. eagleswin says:
    September 5, 2017 at 10:42 am

    Much like the Brady case the people defending Elliot are not arguing the correct case. Does the league have the power to do what it did? Yes or No.

    This isn’t about the merits of Elliot’s accuser. The judges could side with Elliot in that regard but the NFLPA and Elliot would still lose the case because that isn’t what is relevant no matter how many times people post supporting him and tearing her down.

    There will also be another 20 pages of people posting gibberish on how the Elliot will sue the league for defamation and own the league.

    I’m still waiting on that Brady defamation suit where he would own the league. It must be true because every Patriot fan posted it a million times.
    ————————
    All very possible )probable). And it will do little to change the fact the NFL got it wrong (again) and suspended a player without any semblance of evidence. So no, it’s not about what happens in the court room. It never was.

  31. How does the league compensate for performance bonuses? Sure, the player can be re-paid salary, but performance bonuses, roster bonuses etc. can’t.

    And what about the team? You can’t go back and replay the games that the player missed due to a wrongful suspension.

    And the NFLPA needs to put a stop to these off-the-field activities suspensions. It’s none of the league’s business what a player does during the off-season, or off the field, unless it directly affects the on-field activities.

  32. stealthjunk says: When was the last time a player “played for free”?
    Brock Osweiler is playing for free this year. After the Browns cut him, he had 16M guaranteed. But he is choosing to play for the same money.

    Players also take paycuts in the playoffs.

  33. “Gosh, this sounds exactly like the deflategate and bountygate cases. I wonder what the outcome will be?”

    The NFL eventually lost in the Bountygate case in the sense that Tagliabue canceled all the player suspensions. They apparently only won in the Deflategate case because Brady’s lawyers weren’t ready for the NFL to re-argue Brady’s guilt in what was supposed to only be an appeal on the soundness of Judge Berman’s decision.

    A 2-1 win on appeal of a case lost at the District Court level is hardly a ringing endorsement of the NFL’s legal position. To my eyes, the most important victory the NFL won was the establishment of the Second Circuit (NY) as the de facto location for any NFL-related litigation. They really needed to get out of Minnesota, where they repeatedly lost their lawsuits.

  34. Oh, and yes, the NFLPA absolutely has to be willing to strike over the absurd farce that Goodell’s system of “discipline” has become. If they can suspend Elliott for six games for an incident where prosecutors refused to file charges, any player can be fitted for the blame game and trotted out as a “bad guy” on any amount of flimsy and unreliable evidence.

    We have a legal system already to determine whether players’ off-field activities are abusive or not. It’s not perfect, but it’s a hell of a lot better than the kangaroo court the NFL puts its power behind.

    And the actions of Goodell still carry the stamp of presumed validity in the wider world. Aside from hardcore fans who know how corrupt he is, other people generally assume that if he’s punished somebody, he must have had reason to do so. They’re not really quite ready or willing to contemplate the opposite possibility: that Goodell isn’t even remotely concerned about fairness or evidence.

  35. whispersd says:
    September 5, 2017 at 1:18 pm

    And the actions of Goodell still carry the stamp of presumed validity in the wider world. Aside from hardcore fans who know how corrupt he is, other people generally assume that if he’s punished somebody, he must have had reason to do so. They’re not really quite ready or willing to contemplate the opposite possibility: that Goodell isn’t even remotely concerned about fairness or evidence.
    ==========================
    Nor does his BS in Economics even remotely make him qualified to legislate player discipline. Which is most likely why fairness and evidential qualities are lost on him. Despite the raising of the integrity banner that so many here rush to gobble up (based primarily on the team they root for than anything to do with the merits of the case)

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