With Judge Katherine Polk Failla denying Cowboys running back Ezekiel Elliott’s motion for an injunction that would have blocked his six-game suspension through the end of the litigation, Elliott’s next move will be to take the issue to the U.S. Court of Appeals for the Second Circuit.
Although the chance of success is small, their chance of success will be zero if an appeal doesn’t happen. For that reason, and per a source with knowledge of the situation, an appeal is likely.
Perhaps the biggest flaw in the 24-page ruling is the complete absence of any analysis as to the question of whether Elliott will suffer irreparable harm in the absence of an injunction. At page 15, Judge Failla declares that the NFL Players Association failed to show irreparable harm; however, she devotes no portion of the written decision to explaining why the NFLPA failed to do so.
Multiple other players over the years have shown irreparable harm in similar proceedings, and for good reason. If it turns out that the player wins in court, there’s no way to remedy the fact that games have been missed. Judge Failla’s failure to offer any reasoning or explanation as to why Elliott’s case is different from all others in which judges have found irreparable harm seems odd at best, fishy at worst.
The fact that Judge Failla kept the case despite the fact that her husband is a partner in the NFL’s CBA/lockout law firm will cause some to call the failure to address the irreparable harm argument fishy. In cases like this, actual fishiness doesn’t matter; judges are duty bound to avoid the appearance of fishiness.
Making the decision to not step aside even more confusing is the fact that the U.S. District Court for the Southern District of New York isn’t a one-horse courthouse. A whopping 43 judges sit on the court.
Whatever happens, time is of the essence. And perhaps the best way to get the attention of the Second Circuit will be to point out the absence of any analysis regarding irreparable harm, along with the irregular situation involving the connection between Judge Failla and the NFL.