Battle lines for next NFL-Elliott skirmish are drawn

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By rule, Cowboys running back Ezekiel Elliott has 14 days to file a petition for rehearing in the case that has triggered the eventual dismissal of his Texas lawsuit. Which means that the Texas case isn’t over. Which isn’t stopping the NFL from treating it that way.

NFL spokesman Joe Lockhart said during a Friday media briefing that the league regards its immediate suspension of Elliott and his remaining federal appeal rights in the Texas case as an “apples-and-oranges” proposition. Lockhart justified the characterization by saying the the courts have their rules and procedures, and the league has its rules and procedures.

This virtually guarantees an immediate effort by Elliott and the NFL Players Association to seek an order blocking the suspension until the 14-day window for filing a petition for rehearing of the case, either before the original panel or before the entire U.S. Court of Appeals for the Fifth Circuit.

The mere fact that Elliott has 14 days to decide on his next course of action means that Thursday’s decision doesn’t become effective for two weeks. Which means that Elliott should be able to secure easily and quickly a ruling that will allow him to play until the 14-day window has expired, at a minimum. (This would mean he’ll play in Week Seven against the 49ers. For Week Six, the Cowboys have a bye.)

The NFL’s position has another potential impact on the broader litigation. If the court believes that the NFL is being heavy-handed and/or disrespectful in its insistence to proceed prematurely with the suspension, that could cloud the ultimate assessment of the case, if there are further proceedings. While it may be impossible to ever draw a straight or even dotted line from the league’s aggressive stance on the commencement of the suspension to whatever decisions may come, lawyers (at least the smart ones, which leaves me out) know when to tread lightly in order to avoid alienating the folks who exclusively wear Johnny Cash’s color of choice.

31 responses to “Battle lines for next NFL-Elliott skirmish are drawn

  1. Perceptive take on the issue. The NFL lawyers should consider the tenuous decision they won in the Second Circuit that Brady decided not to appeal. The Chief Justice for the Second Circuit agreed that the NFL had been unfair in its processes and decision. The Fifth Circuit may well reconsider if an en banc appeal is granted. The NFL ignoring a still valid federal injunction may tip the balance toward protecting Elliott’s rights. Remember also that the standard of proof is preponderance of the evidence – not scintilla of evidence – a distinction the NFL lawyers seem to have missed.

  2. Dallas Fed. District judge has already shown extreme bias. As an attorney, I’ve never seen a judge take a case before there was an “injury”–in this case a decision suspending Elliott. In court parlance, the Dallas court had no subject matter jurisdiction, in laymen’s terms the case was not ripe for a decision. As far as the NFL negatively influencing this particular judge, I don’t think there’s any more they could do that would bias him further.

  3. “Playoffs? You kiddin’ me? Playoffs?”

    redlikethepig says:
    October 13, 2017 at 10:35 am
    Push that suspension to the playoffs. You can do it.

  4. They’re just kicking the can down the road by seeking a re-hearing in the Texas action, particularly since the standard for reversal is on that ruling is unlikely to be met. The Texas jurisdictional issue is pretty solid — they should just move on to the NY venue and get on with the substantive due process claims (which likely will be unsuccessful given the standard set in the Brady case). Actually, they should just settle the damn thing.

  5. “Lockhart justified the characterization by saying the the courts have their rules and procedures, and the league has its rules and procedures.”

    Completely amazed that the NFL apparently considers it’s “rules and procedures” to be equivalent to those of the judicial system. The NFL could not possibly be more arrogant. I hope they lose this in the most embarrassing way possible.

  6. Court ruled in NFL’s favor and suspension is reinstated and is effectively immediately. If someone is convicted of murder and has time to file an appeal, that person is not let out of jail and freed during the time in which he has to file an appeal. The conviction still stands in the interim. Same principal here. Zeke is suspended unless and until he files the petition for rehearing and wins at the rehearing.

  7. revren10 says:

    October 13, 2017 at 10:40 am

    Wonder if jerry is still happy. He had no issue with Ray rice or Brady getting suspended
    _________________________________________________________
    What a careless statement to make! Ray Rice was GUILTY–we saw it. Brady DESTROYED EVIDENCE–he was clearly guilty. Zeke Elliot has done NOTHING! There is a huge difference here.

  8. So elliots lawyers jump the gun and it burns him, now the NFL jumps the gun and suspends him before the 14 day period. Its almost like both sides are so inept at doing anything right they are tripping over each other to get the other side to win.

  9. That timing is perfect, get the injunction, let Elliot play in a game that the Cowboys should win no matter what his status is, 49ers should be an easy W. Then he can serve his 6 game suspension against: Washington, Kansas City, Atlanta, Philadelphia, San Diego and Washington. That 6 game stretch is probably the toughest 6 games in a row the Cowboys have, and 3 of the games (Wash, Phila & Wash) are against the NFC East for tie breaking purposes. Perhaps the Cowboys might want to get the first suspension week out of the way against the 49ers versus at Washington.

  10. If someone is convicted of murder and has time to file an appeal, that person is not let out of jail and freed during the time in which he has to file an appeal

    You do realize this isn’t a criminal case and Elliot is not incarcerated, right? Your example is beyond horrible

  11. ValarMorghulis says:
    October 13, 2017 at 10:29 am
    This back and forth is very inconsiderate to my fantasy team.

    ——————
    Grab a lawyer and sue!! They could use another lawsuit to make this more interesting.

  12. Have any of you seen the Cowboys defense play this year? There is no way in the world that this team is making the playoffs with that defense, so just get this suspension over with already.

  13. Some people need to also realize this is not just about football. yes, they are fighting the suspension but its a suspension that is based off him being a domestic abuser. This isn’t ray rice with video of the assault or Josh Brown admitting to hitting his wife. This was an alleged incident from a women that was found to be less then creditable by law enforcement and also the investigator from the NFL.
    For those that just sit there and say he should take it i ask would you? Will you just take the punishment and lose money based off a claim that you say is false?
    If you feel your being wrongly punished you would exhaust all avenues which he is doing.

  14. I feel like there’s some over-analysis taking place here. Yes, Elliot still has legal options and very well may seek injunctive relief if he is interested in continuing to pursue those options. It’s not necessarily the case that an injunction will be granted. Until such time as he obtains injunctive relieve, the NFL can of course treat this decision as if it were final and implement the suspension accordingly. I don’t see why a court would punish the NFL for acting in such a manner – that seems quite speculative to me.

  15. As an employer, I am rooting for the NFL to win.
    The ONLY reason this isn’t over is because Zeke has union protection and the media is using this for profit.

  16. If someone is convicted of murder and has time to file an appeal, that person is not let out of jail and freed during the time in which he has to file an appeal

    You do realize this isn’t a criminal case and Elliot is not incarcerated, right? Your example is beyond horrible
    ——————————————————————————–
    You miss the point. The decision was made and the Court was ordered to dismiss the case. The fact that Zeke has 14 days to petition for rehearing does not stay the immediate effect of the decision. Rather, it just gives him a window of time to decide and file if he wishes to challenge that decision. If it did what you suggest then it would undermine its own ruling. Example is spot on.

  17. nothing like pushing the 6 game suspension of your best player to the end of the season when the games really count.
    At least they have him at the beginning of the season when teams are still trying to figure out their identity. maybe his running game will really get started just in time for his suspension.

  18. The league needs to suspend players only if they’re criminally charged. Place the blame on the courts/prosecutors who don’t file charges if a player seems to have gotten away with something. I don’t see other sports leagues spending time in court like this with players. Ridiculous.

  19. Elliott is likely going to win this case. The NFL didn’t sue him in SDNY, they sued the NFLPA which does business there. Texas is a right to work state and Elliott can simply resign from the NFLPA, depriving the New York courts of jurisdiction over him. At that point, the case is back in Judge Mazzant’s court. The 5th Circuit didn’t rule on the merits, they simply said Elliott had jumped the gun (as he indeed had). When the 5th Circuit has to take up the case on the merits, they may well find that the CBA includes a covenant of good faith, that the commissioner’s arbitration powers can’t be used arbitrarily, as in this case.

  20. I do not understand your position on this. It is my understanding that the judge’s order is valid and in effect once it is signed/documented with the clerk of the court. An appellate body cannot review an action until then. Elliot has a right to appeal but he COULD choose to not exercise it. Meaning, in my estimation, absent a statement by the judge that his order doesn’t take effect until a specific date after the appeal, it goes into effect as soon as it is published. The only way I can see the NFL “jumping the gun” is if they walked out of the courtroom and announced the immediate suspension before the order itself was logged. The rest of this article makes no sense to me. Once the order is actually in place, the NFL would be acting consistently with the ruling of the court. In what way could they possibly find offense with that. Your argument sounds like the court would say “How dare you comply with my orders”

  21. @sparky151 – Your premise is way off base, he can’t now withdraw as a member of the NFLPA and say, let’s push that retroactive. He was a member of the NFLPA at the date the suspension occurred and when he pushed this into court, so it is under those circumstances that he will have operate during. Both the NFL and NFLPA are both headquartered in NY, so both parties are in that jurisdiction and more than likely he will be stuck in that court system. Also withdrawing from the NFLPA means the NFLPA can’t represent him in any of this and he would then have to hire his own attorneys and foot the bill. While he makes a lot of money on his rookie contract as a first round pick, he can’t win a financial war of attrition against the NFL without the NFLPA having his back and funding his case.

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