Elliott alleges existence of a “conspiracy” to suspend him

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A case that already has been nasty has gotten even nastier. And what appears to be a clumsily constructed case against Ezekiel Elliott could be on the verge of a collapse. And the collapse could shake the foundation of 345 Park Avenue.

In 30-page petition filed late Thursday in a Texas federal court, Elliott contends that he was the victim of a “League-orchestrated conspiracy . . . to hide critical information” from Commissioner Roger Goodell and others in connection with the domestic violence allegations made against Elliott by Tiffany Thompson. Elliott, who seeks a reversal of the suspension, argues that NFL Director of Investigations Kia Roberts concluded that Thompson “was not credible in her allegations of abuse,” and that insufficient evidence existed to corroborate her claims. Elliott alleges that the opinions of Kia Roberts were concealed from critical aspects of the disciplinary process.

The contention of a conspiracy emanates from the alleged decision to keep Roberts away from a June 26 hearing, at which time the evidence was presented to four outside experts who would make recommendations to Goodell, and from a separate meeting with Goodell. The focal point of the conspiracy allegation seems to be NFL Special Counsel for Investigations Lisa Friel.

Roberts, according to the petition, was the only lead investigator to interview Thompson, and Roberts co-authored a 160-page investigation report. Roberts nevertheless was not present for the key proceeding that resulted in the initial six-game suspension, when evidence was presented to (and questions were posed by) the four experts who advised Goodell on discipline.

Friel herself allegedly told Goodell during a separate meeting that there was sufficient evidence to justify discipline. Roberts allegedly was not present for that meeting, which means that Goodell never heard about her concerns regarding Thompson’s credibility.

“[T]he NFLPA and Elliott do not seek in this Petition for the Court to make its own determinations about Elliott’s or Thompson’s credibility, or any other matter of fact-finding properly left to the arbitrator,” the petition states. “Rather, the controlling and paramount legal question presented here is whether an arbitration concerning the existence of ‘credible evidence’ for employee discipline based on ‘he-said/she-said’ claims of domestic violence can be fundamentally fair when senior NFL Executives have conspired to obscure (including from the Commissioner and his advisors) their own Director of Investigations’ conclusion that there was no credible evidence upon which to impose discipline, and the arbitrator has refused to require the NFL to make available for testimony and cross-examination: (i) the accuser whose credibility is at issue (or the investigative notes of her six interviews), and (ii) the Commissioner who was deprived of critical facts in making his disciplinary determination”

The petition also points to various procedural flaws, including the decision of the league to insulate Thompson from cross-examination and a refusal to share investigation notes from six different NFL interviews of Thompson. The petition likewise chides arbitrator Harold Henderson for refusing to require testimony from Goodell, who made the decision to impose discipline.

“Without testimony from the Commissioner, it was not possible to determine the full impact of the conspiracy, or precisely what the Commissioner knew or did not know about his co-lead investigator’s conclusion that there was not sufficient credible evidence to proceed with any discipline under a League Personal Conduct Policy that requires ‘credible evidence’ to support the charges in a case like this, where the player has been accused of domestic violence, but law enforcement investigated and rightly declined to bring any charges due to conflicting evidence and inconsistent accounts of the alleged events,” the petition explains.

The procedural flaws were obvious throughout the various steps of the process. On Thursday night, the misgivings of Kia Roberts became apparent for the first time. If, as the petition claims, Roberts was kept away from key meetings that resulted in the suspension, the entire case against Elliott could implode.

At a minimum (if the claim of Roberts’ non-involvement is accurate), Goodell should be required to vacate the discipline and make the decision all over again, with the full benefit of Roberts’ conclusions and opinions being shared both with Goodell and the outside experts.

Separate questions will arise regarding whether and to what extent this highly irregular circumstance (if, again, the allegations are accurate) could or should affect the ongoing employment of various persons whose fingerprints are on the alleged conspiracy. Depending upon how deep the rabbit hole goes, it’s possible that the ensuing shakeup could go all the way to the very top of the organization.

Cap percentage still not in play for quarterback contracts

AP

Multiple players have tried, none have succeeded. Yet.

With the salary cap growing by 37 percent since 2013 and contracts negotiated in past years not aging well because of it, no player has been able to secure a clause in a long-term deal ensuring a certain cap percentage in the out years of a contract. Former Jets cornerback Darrelle Revis tried to get it in 2010, and Washington quarterback Kirk Cousins tried to get it in 2016.

It’s unclear whether quarterback Matthew Stafford tried to get it. While he arguably will need it in 2021 and 2022, if the salary cap and the quarterback market continue to climb, Stafford will get $108.5 million over the next four years. If, after that, the market has gone haywire, the Lions could rip up the last two years of the deal and give him another.

So what will it take for a player to get protection from a guaranteed percentage of the cap? Most likely, it will take a franchise quarterback making it to the open market, with multiple teams chasing him and the quarterback playing one against the other. Even then, the Management Council likely will resist, because once one team does it other teams may follow suit.

For now, teams have resisted because it strips away the benefit of the back end of a long-term deal, where salary numbers that seemed fair to the player at signing become much more than fair to the teams over time. If a player is guaranteed a certain piece of the pie and the pie keeps growing, the piece keeps growing, too.

Under the current system, once a long-term deal gets past the first two or three years, the team hold a year-to-year option on whether to keep it going. If the numbers look good to the team, the team will “honor” the contract. If the numbers don’t, the team will either squeeze the player to take less or cut him. The player, having committed to the duration of the deal, has no real options.

Tying those later years to growth in the cap will make teams more inclined to think the player is getting too much, and in turn to lose the benefit of otherwise affordable years that remain after the front end of the deal has been paid out. Inevitably, someone else will try to get that term. Eventually, maybe someone will succeed.

With Matthew Stafford paid, who’s next?

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Here’s an exercise first attempted after Raiders quarterback Derek Carr signed the richest . . . contract . . . ever in June. Now that Lions quarterback Matthew Stafford has done the same, it’s time to look at whose hand will be the next on the baseball bat as quarterbacks outdo each other, one at a time.

1. The Next Wave.

Kirk Cousins.

With another one-year deal in Washington, at $23.94 million, four choices loom for the team by February: (1) sign Cousins to a long-term deal; (2) apply the transition tag at $28.78 million; (3) apply the franchise tag again, at $34.47 million; or (4) allow Cousins to hit the open market.

What he’d make on the open market remains to be seen. A tug of war could be looming between a pair of the player’s former offensive coordinators: 49ers coach Kyle Shanahan and Rams coach Sean McVay. Other teams could get involved, and Cousins could (should) emerge from the morass with a deal better than the one that Stafford has received.

Jimmy Garoppolo.

Some believe the Patriots will choose Garoppolo over Tom Brady in 2018. Most see that as inconceivable.

Regardless, Garoppolo is headed for a date with the open market, unless he does a new deal with the Patriots. With the franchise tag likely heading north of $23 million and the injury risk low (since he won’t be playing much if at all this season), Garoppolo has no reason to do a new deal before forcing the Patriots to decide whether to use the tag.

If the Patriots win a sixth Super Bowl and Gisele Bundchen yanks Brady into the sunset, the Patriots would then have a limited window to sign Garoppolo before applying the tag. Either way, the question becomes whether Garoppolo will push his leverage to the limit, or whether he’ll do a Brady-style discount.

If Brady stays, a tag-and-trade remains possible, as does the possibility of paying Garoppolo top-of-the-backup-market money. They also could choose to kick the can for a year by carrying Garoppolo at the franchise tag amount, which seems unlikely. But if the Patriots believe Garoppolo will be the next great quarterback, it’s a small price to pay to chase another decade of excellence.

Drew Brees.

Brees won’t extend his deal with one season remaining on it, which means he’ll become a free agent in March unless the Saints work out a contract with him before then. Either way, there will be no franchise tag or other device to hold Brees in place.

Which means that Brees may soon get a chance to show the football-following world the worth of a 39-year-old franchise quarterback on the open market.

It’s hard to think of him as anything other than a Saint, but he already has changed teams once in his career. Would it really surprise anyone if he ends up with a franchise that is merely a franchise quarterback away from seriously contending, especially if this year is finally the year that the annual Sean-Payton-May-Leave-The-Saints rumors finally come to fruition?

Sam Bradford.

Seemingly entrenched as the starter in Minnesota as Teddy Bridgewater recovers from a serious knee injury, Bradford has no contract beyond 2017. Which means that a player who cashed every check of a $78 million deal signed in 2010 and who then inked a two-year, $36 million deal in 2016 will get a chance to add to his $114 million career haul by becoming a free agent — unless the Vikings give him yet another big contract, with the $23 million franchise-tag tender as the starting point.

A.J. McCarron.

McCarron is in the final year of his contract, but he may not be eligible for unrestricted free agency due to a years-of-service issue tracing back to his rookie season. That would allow the Bengals to hold him in place via the highest possible restricted free agency tender. They also could use the franchise tag, if they fear a team pilfering him for a first-round draft pick.

Regardless, the Bengals’ reportedly high asking price in trade for McCarron suggests that they have plans for him. Maybe those plans include becoming the successor to Andy Dalton, if they conclude that Dalton has taken the team as far as it can.

2. The Second Wave.

Matt Ryan.

With two years left on his second contract, the Falcons would be wise to consider getting a deal done before the market inches any higher. Come 2019, it would cost at least $25.98 million to keep Ryan under the franchise tag, and he’ll be paid a total of $35 million through 2018.

If he’s destined to eventually become the highest-paid quarterback, maybe the best move would be to do it now, via a four-year, $110 million extension that would have a new-money average of $27.5 million — but that would pay out $145 million over six years, $6.5 million less than Stafford’s new deal.

Jameis Winston.

Eligible for a new contract after 2017, the Buccaneers need to decide whether to give him a second contract before his fourth year or before his fifth. The sooner they do it, the cheaper it will be.

Marcus Mariota.

The Titans are in the same boat as the Bucs, and it’s possible that Mariota will wait for Winston to do a deal, or vice-versa. Whoever goes last may end up with the better deal, even if he has to wait another year to get it.

3. The Third Wave.

Aaron Rodgers.

Four years ago, Rodgers signed a long-term contract with a new-money average of $22 million. He’s now $5 million per year behind a guy in his own division who has never won a single playoff game. In all fairness, Rodgers should be the next quarterback to get a new deal, even though he is signed for three more seasons.

The question becomes whether Rodgers will actively jostle for one. He doesn’t seem to be willing to complain about his deal, because to do so would be to invite criticism for signing it in the first place.

For as smart as Rodgers is, in hindsight it clearly wasn’t wise to commit through 2019 at a time when the cap was poised to jump eight figures every year. In fairness to Rodgers, no one expected the cap to move as much as it has since then, increasing by a total of 37 percent. Indeed, management was continuously pushing the idea that the cap would smooth, not spike.

Regardless, Rodgers’ once-great deal now looks almost average. If he squabbles too much, someone will say he should have had the foresight to not sign it when he did.

Russell Wilson.

Like Rodgers and others who have won Super Bowls, it would be easy for Russell Wilson to look at the trio currently atop the list of highest-paid quarterbacks (Stafford, Carr, Andrew Luck) and say, “What have they done?”

Not much, in comparison to the likes of Rodgers, Wilson, Brees, Brady, Ben Roethlisberger, and Eli Manning.

At an average of $21.9 million per year in new money, Wilsons now sits at $5.1 million per year behind Stafford. Despite his carefully-manicured public image, that can’t sit well with a guy who has led his team to two Super Bowls. And with two years left on his contract, the question becomes when Wilson’s representatives will begin quietly working the Seahawks for a deal that better reflects his value.

Dak Prescott.

The franchise quarterback of America’s Team still has two more years before he can even sign an extension. But as more and more quarterbacks pass the $25 million-per-year threshold, Prescott’s wage-scaled deal will look embarrassingly bad.

Prescott will make $540,000 this year, and $630,000 in 2018. That’s a total of $1.17 million over two full seasons. In that same period of time, Stafford will have made $67.5 million.

So, eventually, Prescott will get his deal. As will all of the other guys on this list. In time, more names will be added to it, and the cycle of quarterbacks getting enormous contract will continue — even if the guys making the most at any given moment haven’t done nearly as much as their lesser-paid peers.

Tony Romo no longer calling Friday preseason game after birth of third son

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Well, so much for that. . . .

Tony Romo will not call the Chiefs-Sehawks game on Friday night as scheduled, CBS announced in a tweet. Romo instead will stay in Dallas after welcoming a third son into the world Wednesday.

Romo posted the announcement on Twitter and Instagram with photos of Jones McCoy Romo. There was no word on whether the name was in honor of Cowboys owner Jerry Jones.

“Ten fingers and ten toes. All healthy,” Romo tweeted. “Almost have my basketball team built.”

Romo also posted a video of 3-year-old Rivers jumping up and down in excitement before falling down. Romo and his wife, Candace, also have a 5-year-old son, Hawkins.

The former Cowboys quarterback has had two practice games, which weren’t broadcast, but he will not go live until the season opener.

Cyrus Mehri announces bid to challenge DeMaurice Smith for NFLPA leadership

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Cyrus Mehri, a civil rights lawyer who has won settlements for workers in discrimination cases against Coca-Cola and Texaco, will challenge DeMaurice Smith for leadership of the National Football League Players Association, Mehri tells Real Sports with Bryant Gumbel.

The program airs on HBO tonight at 11 p.m. ET.

The NFLPA election is March 2018, and Mehri says on Real Sports that he’s “gonna throw my hat in the ring to challenge De Smith for the leadership of the NFLPA.” Mehri pushed for the NFL to adopt the Rooney Rule on Real Sports in 2002, which the league did three months later.

HBO released a transcript of part of Gumbel’s interview with Mehri:

CYRUS MEHRI: “The more I dug into this and saw how unfair the last CBA deal was, the more I felt I had to answer the call.”

BRYANT GUMBEL: “Going back to those negotiations, what do you think he could’ve gotten that he didn’t?”

CYRUS MEHRI: “The players went backwards economically in a massive way, and that’s hundreds of millions of dollars that were forfeited and De Smith gave the commissioner a blank check. ‘Dear Commissioner, you can do whatever you want on player discipline.’ Well, we’re gonna fix that.”

BRYANT GUMBEL: “Do you know Roger Goodell? Does he know you?”

CYRUS MEHRI: “Yes, I know him very well.”

BRYANT GUMBEL: “Relationship?”

CYRUS MEHRI: “Professional relationship.”

BRYANT GUMBEL: “What do you think the NFL owners, Commissioner Goodell think of Cyrus Mehri?”

CYRUS MEHRI: “Honest broker. Someone with integrity and someone who gets things done. I think I’ve earned their respect and that respect I’m gonna carry forward on behalf of the NFL players.”

How will the Ezekiel Elliott appeal hearing unfold?

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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.

Harold Henderson isn’t a truly impartial arbitrator

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Harold Henderson is an independent arbitrator. Unless he isn’t.

It’s an issue that has come up in the past, and with Henderson now appointed to handle the Ezekiel Elliott appeal it will come up again.

The NFL and NFLPA have disputed whether Henderson, a former NFL executive, is truly independent. While he isn’t a current league employee, he is routinely appointed by the league to handle hearings of this kind. The gig pays, it likely pays well, and he’d presumably hope to keep doing it.

As of November 2014, Henderson had handled 87 player appeals since 2008. Still, the union consistently has objected to Henderson’s appointment.

“A long-time NFL Executive and current legal consultant cannot, by definition, be a neutral arbitrator,” the union said in a statement released to PFT three years ago, in connection with the decision to appoint Henderson to handle Adrian Peterson‘s Personal Conduct Policy appeal.

Many (including some league employees) already are claiming that Henderson is independent by pointing out that he reduced Greg Hardy’s suspension from 10 games to four. But that was a grossly over-the-top penalty in light of the controlling precedent at the time — a two-game suspension for first-offense domestic violence. In coming up with 10 games, the league took Hardy’s interaction with Nicole Holder from a single evening and broke it down into four separate incidents: “First, he used physical force against her which caused her to land in a bathtub. Second, he used physical force against her which caused her to land on a futon that was covered with at least four semi-automatic rifles. Third, he used physical force against her by placing his hands around Ms. Holder’s neck and applying enough pressure to leave visible marks. And fourth, he used physical force to shove Ms. Holder against a wall in his apartment’s entry hallway.” (Obviously, these are despicable acts. But Hardy still has rights as it relates to efforts by his employer to punish him for things that happened away from the workplace.)

Though the statement announcing the Hardy suspension didn’t say it expressly, the league created the impression that the punishments were stacked based on the multiple incidents. Henderson ultimately decided to reduce the suspension to four games, without much of an explanation as to his reasoning. As PFT wrote at the time: “Henderson doesn’t know whether the NFL used the old policy (which produced a two-game suspension for first-offense domestic violence incidents) or the new policy (which moved the baseline to six), Henderson doesn’t think it matters to the resolution of Hardy’s case, and then Henderson relies on the new six-game baseline as proof that 10 games is too many, reducing it to a number below the new baseline.”

Based on existing precedent, Hardy arguably should have been suspended only two games, which was the standard penalty at the time. This time around, Henderson will be applying a policy with a standard penalty of six games. With Elliott being suspended exactly six games, it’s hard to imagine Henderson reducing it to three or four games — unless of course that’s what the NFL ultimately wants him to do.

Indeed, some believe that the league office won’t be all that upset with a reduction of the suspension, since the Commissioner obtained the appropriate P.R. cover by suspending Elliott six games. If Henderson or anyone else reduces it, no one can accuse the Commissioner or anyone employed by the league office of being soft on the issue of domestic violence.

Which, of course, overlooks entirely the question of whether Elliott actually committed domestic violence.

CBS announces Beth Mowins to call Browns-Colts game

ESPN

CBS Sports announced its NFL lineup pairings for the 2017 season, and it includes play-by-play announcer Beth Mowins teamed with new game analyst Jay Feely.

Mowins and Feely are slated to call the Browns-Colts game Sept. 24.

Mowins will call ESPN’s opening-week Monday Night Football late game between the Chargers and Broncos on Sept. 11, marking the first nationally televised NFL game called by a woman.

She has called college games for more than a decade and, since 2015, has worked as the Oakland Raiders’ preseason play-by-play announcer.

Other new faces to the CBS lineup include Hall of Fame receiver James Lofton, who will work alongside Andrew Catalon.

Here is the complete least of announcer pairings:

1. Jim Nantz, Tony Romo and Tracy Wolfson

2. Ian Eagle, Dan Fouts and Evan Washburn
 
3. Greg Gumbel, Trent Green and Jamie Erdahl 

4. Kevin Harlan and Rich Gannon 

5. Andrew Catalon and James Lofton 

6. Spero Dedes and Adam Archuleta 

7. Tom McCarthy and Steve Tasker and Steve Beuerlein 

8. Beth Mowins and Jay Feely

Goodell did not attend Ezekiel Elliott hearing

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Conflicting reports have emerged in recent weeks regarding the direct participation of Commissioner Roger Goodell in the events preceding the suspension of Cowboys running back Ezekiel Elliott. Although, as Friday’s letter to Elliott makes abundantly clear, Goodell made the decision to suspend Elliott six games, Goodell did not personally attend the most important meeting regarding the investigation.

The NFL, after previously not commenting on the matter, has acknowledged that Goodell was not present for the June 26, 2017 hearing that preceded the issuance of discipline. Deadspin.com reported in late July that Goodell didn’t attend any of the hearings involving Elliott.

“On June 26, 2017, you and your representatives had an opportunity to meet personally with [the four] independent advisors [Peter Harvey, Ken Houston, Tonya Lovelace, and Mary Jo White] to discuss you recollection of the events of the week of July 16, 2016, you relations with [Tiffany] Thompson, the March 2017 [St. Patrick’s Day parade] incident, and other issues you and your representatives believed were pertinent to our review,” the August 11 letter informing Elliott of his suspension explains. “The advisors had an opportunity to engage directly in discussions with you, and to hear your counsel’s assessment of the legal, evidentiary and credibility issues presented in this case.”

With credibility being such a critical aspect of this matter, it’s difficult to make a conclusion about Elliott’s credibility without personally attending the June 26 hearing. While the independent advisors serve as a bit of a buffer, their assessment of Elliott’s overall credibility is no substitute for the credibility assessment made by the person making the decision.

Per a source with knowledge of the investigation, Goodell also did not meet with Tiffany Thompson, whose credibility also is at issue.

That’s a clear deviation from standard legal proceedings, especially where a case turns on the resolution of a dispute in witness testimony and recollection. In most if not all other cases, the person making the decision personally assesses the credibility of the key witnesses.

Indeed, when recalling facts and answering questions on matters that are sharply contested, what a person says is only part of the puzzle. How the person says it — demeanor, body language, tells, etc. — is as important, if not more important.

On a matter of such importance and sensitivity to the league, to the Cowboys, and to Elliott, with one of the NFL’s brightest young stars being branded a domestic abuser under a very low 51-49 standard of proof, how can a reliable decision be made if the person making the decision did not directly assess the credibility of the witnesses?

Here’s the truth: It can’t. While the four independent advisors may individually and collectively be capable of assessing witness credibility, they weren’t the ones making the decision. The person who made the decision needed to be in the room, studying every word, facial expression, and gesture. Without that, the grade on the Commissioner’s decision as to Elliott is incomplete, at best.

Arbitrator selection will be most important step in Ezekiel Elliott case

AP

Cowboys running back Ezekiel Elliot will appeal his six-game suspension. When he does, the NFL’s next step becomes a critical one.

Commissioner Roger Goodell will have to decide whether to personally handle the appeal, whether to designate it to a league employee, whether to assign it to an “independent” person deemed friendly to league interests, or whether to hand the baton to a truly independent arbitrator.

That decision will have a significant impact on the outcome. If the Commissioner handles the appeal of the decision the Commissioner already made, it’s hard to imagine him changing his mind. Indeed, in recent years the language characterizing the appeal process has subtly morphed from ensuring the initial decision was correct to giving the player one last chance to introduce new evidence that would possibly change Goodell’s mind.

That’s not how appeals should work. And the fact that the Commissioner already made the decision to suspend Elliott six games could make it easier for Elliott, the NFL Players Association, and/or Cowboys owner Jerry Jones to argue that Goodell should designate a truly independent arbitrator to take a fresh look at the case and to determine whether Goodell got it right.

If Jones is truly furious over the suspension, he could best channel that fury by pressuring Goodell to let someone who hasn’t already formed an opinion on the case — and someone who will feel no express or implied compulsion to rubber stamp the Commissioner’s decision — to handle the appeal. And there’s good reason for Jones to push for true independence; the last two times Goodell delegated an appeal to a truly independent arbitrator (Ray Rice in 2014, Saints bounty scandal in 2012), the arbitrator scrapped the suspensions.

However it plays out, the identification of the arbitrator isn’t just the next step in the process, but arguably the most important.

The importance of considering Ezekiel Elliott’s side of the story

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Domestic violence is illegal, abhorrent, and despicable. Those who commit it should be exposed, shamed, and incarcerated. But those accused of it should not be presumed to be guilty, especially if they were never arrested or charged.

When it comes to NFL internal investigations, the initial outcome also should not be presumed to be fair and accurate. It’s a degree of patience and caution that has become justified by bungled, ham-handed NFL investigations of recent years, from the Saints bounty scandal to the cap penalties imposed on Dallas and Washington to the Ray Rice debacle to #Deflategate. All too often, the NFL (like many other large business organizations) selects a desired outcome in such situations and works backward to justify it.

Whatever anyone thinks of Cowboys running back Ezekiel Elliott, the NFL’s past handling of internal investigations should at a minimum prompt a willingness to keep an open mind, to listen what Elliott has to say, and to be willing to poke holes in the facts, findings, and logic applied by the league.

That attitude likely won’t earn me any friends at 345 Park Avenue (if I have any), but it’s a clear consequence of the manner in which the league has Machiavellied its way through other investigations, at times ignoring common sense and reason to make the square peg of P.R.-driven justice fit in the round hole of reality.

Here’s the first clue that maybe a healthy dose of skepticism is warranted before concluding that Elliott did what they now say he did (apart from, you know, the fact that he wasn’t arrested or charged): One of the four experts who participated in the Commissioner’s advisory panel for the Elliott case is Mary Jo White.

For Saints fans, that name has nearly the same connotation as Ted Wells does for Patriots fans. Five years ago, the NFL hired White to serve as a supposedly independent evaluator of disputed facts and evidence regarding the bounty scandal. At one point, she met with multiple reporters and reviewed what she decided was “overwhelming evidence” of Saintly guilt.

Here’s the piece of “overwhelming evidence” many regarded as a smoking gun, as explained at the time by Peter King: “The NFL Films-recorded quote from defensive lineman Anthony Hargrove, as first reported by SI in March, with Hargrove saying to defensive teammate Bobby McCray, ‘Give me my money,’ after Vitt told the team that Favre was out of the game with a leg injury. (Favre did return to the game without missing a play, but that wasn’t apparent when Hargrove made his declaration to McCray.)”

The problem with White’s insistence that Hargrove said “give me my money” is that careful, objective assessment of the video and audio leads to the fair conclusion that it’s inconclusive, at best, that Hargrove said the words. After watching it over and over and over again, I personally became convinced that he didn’t. Making White’s claim even more problematic is that she defended the conclusion that Hargrove said “give me my money” by saying “you can see his lips moving.” The video did not support that interpretation, at all.

The league later retreated from the insistence that Hargrove said “give me my money,” but the zealous, and erroneous, effort by White to put words in Hargrove’s mouth raised real questions about the overall credibility of her work, since it created a fair impression that she was serving not as an independent evaluator of the evidence but as an advocate for the league’s preferred outcome.

While the bounty scandal had more fundamental flaws (including, as former Commissioner Paul Tagliabue explained in his ruling scrapping the player suspensions, an effort to change a widespread NFL cultural dynamic by catching one team and hammering it with discipline), the effort by White to sell the strength of the case by insisting Hargrove said something that he didn’t obviously say became, at least for me, a key moment. Once I realized that Hargrove didn’t say “give me my money,” a little switch flipped in my typically limited brain. That was the moment where I decided that I wouldn’t just assume that whatever the league says in disciplinary matters is truthful and accurate. Those statements and claims from the league may ultimately be truthful and accurate, but I resolved at that point to resist the urge to say, “Well, if Big Shield says it, it must be true” and to look critically and carefully at every nook and cranny of the proof in order to ensure that everything makes sense.

Now White is back on the scene, hired once again by the NFL to provide opinions, insights, and perhaps eventually explanations regarding the strength of the league’s evidence against Elliott. Although there’s no reason to assume that there definitely will be a repeat of her inaccurate claims from 2012 (apart from the fact that she previously made an inaccurate claim in 2012), it’s a reminder that there are always two sides to the story, but that the league strongly prefers that its side be accepted as truthful and accurate, no matter what.

It will be harder to look at both sides of this case than it is in other cases. Elliott is accused of domestic violence; any effort to push back against the claims made against him will, at some point, feel like a failure to properly support the victims of domestic violence. Perhaps that makes it even more important for Elliott to receive a fair shake.

Also, it will be easy while trying to understand Elliott’s position on the situation to assume that the league is right by asking, “Why would the league want to make one of its brightest young stars look like a criminal, especially if he didn’t do it?” But that ship sailed two years ago, when the league tried to make one of the greatest players in the history of the sport look like a liar and a cheater, absent adequate proof that he lied or cheated.

The ultimate lesson from multiple botched investigations is this: The league does what it wants, when it wants, how it wants. It’s one of the spoils of being the dominant and most powerful sport in America. It also makes having a willingness to ask fair questions and, if need be, push back against questionable findings even more important.

Elliott has appeal rights, and legal rights beyond that. He has not yet publicly presented any evidence in his own defense, but that clearly is coming. Before assuming that he’s guilty as charged, it’s important to consider all of the evidence fairly and objectively.

NFL believed Tiffany Thompson more than it believed Ezekiel Elliott

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As football fans try to shift their brains back to legalese more than a year after #Deflategate ended, many are having a hard time understanding why the league could suspend Ezekiel Elliott for committing domestic violence if he was never arrested or charged.

The distinction is fairly simple. The league’s in-house justice system operates under the “preponderance of the evidence” standard. That’s a fancy way of saying, “If we believe one side a little bit more than the other, that side wins.”

In contrast, the criminal justice system requires proof beyond a reasonable doubt. This highest of all legal standards routinely causes prosecutors to not even waste time and money chasing a conviction that would easily be blocked by eloquence far less persuasive than “if it doesn’t fit, you must acquit.” Indeed, during a Friday conference call explaining the NFL’s decision, attorney Peter Harvey (a member of the four-person advisory panel who previously served as the New Jersey Attorney General) cited the high standard of proof as a reason for the failure of the prosecutor in Ohio to proceed against Elliott.

It also seems that the NFL had more complete evidence than the authorities, apparently due to a greater degree of cooperation from Tiffany Thompson, the woman who accused Elliott of multiple acts of misconduct. She produced photos that the league determined to have been taken contemporaneously with the alleged incidents, and the league also used medical experts to confirm that the photos contained images consistent with abuse resulting in injuries to her face, arms, neck, knees, hips, and shoulders.

And so the objective evidence allowed the NFL to resolve the dispute between Elliott and Thompson over whether he injured her. The fact that the league had “questions with respect to the completeness of [his] cooperation with the investigation” may have caused the league to view Elliott’s overall story a bit more dimly, even if there was no finding that he separated violated the policy by failing to cooperate.

In the end, the league needed to decide only that Thompson’s version was slightly more persuasive than Elliott’s. And it did.

Full NFL statement on Ezekiel Elliott

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[Editor’s note: The NFL issued on Friday a statement suspending Cowboys running back Ezekiel Elliott six games under the Personal Conduct Policy. The full statement appears below.]

Ezekiel Elliott of the Dallas Cowboys was notified today by the NFL that he will be suspended without pay for the team’s first six 2017 regular-season games for violating the league’s Personal Conduct Policy.

Over the course of the last year, the league conducted an extensive investigation. League investigators interviewed more than a dozen witnesses, including Ms. Tiffany Thompson, who had alleged multiple instances of physical violence in July 2016, and Mr. Elliott. The league also consulted with medical experts. League investigators examined all available evidence, including photographic and digital evidence, thousands of text messages and other records of electronic communications.

Pursuant to the Personal Conduct Policy, Commissioner Goodell sought the views of four external advisors (see below) to assist him in evaluating potential violations. These experts range in experience from law enforcement, judicial and public service, and other specialized subject areas.

The advisors participated in a meeting on June 26, 2017 in New York City with Elliott, who was represented by his legal team and the NFL Players Association. The group also reviewed the league’s investigative reports and materials, the expert medical reports, and multiple NFL Players Association submissions on Elliott’s behalf.

In a letter to Elliott advising him of the decision, Todd Jones, the NFL’s Special Counsel for Conduct, said these advisors “were of the view that there is substantial and persuasive evidence supporting a finding that [Elliott] engaged in physical violence against Ms. Thompson on multiple occasions during the week of July 16, 2016.”

After reviewing the record, and having considered the views of the independent advisors, the commissioner determined that the credible evidence established that Elliott engaged in conduct that violated NFL policy.

Elliott may appeal this decision within three days. If he does not appeal, Elliott’s suspension will begin September 2, the day of final roster reductions for NFL teams. He is eligible to participate in all preseason practices and games. Elliott will be eligible to return to the team’s active roster on Monday, October 23 following the Cowboys’ Sunday, October 22 game against the San Francisco 49ers.

MEMBERS OF THE EXTERNAL EXPERT ADVISORY PANEL

PETER HARVEY, Esq., former Attorney General for the State of New Jersey.

KEN HOUSTON, member of the Pro Football Hall of Fame, who played in 14 seasons in the NFL.

TONYA LOVELACE, MA, Chief Executive Officer of The Women of Color Network, Inc.

MARY JO WHITE, Esq., former United States attorney and former Chair of the Securities and Exchange Commission.

Ezekiel Elliott suspension would be the beginning, not the end

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It’s taken more than a year to get to the point where the NFL has an Ezekiel Elliott suspension locked and loaded. But the announcement, which could come at any moment, would in many ways not be the end but the beginning.

The letter communicating the suspension will explain Elliott’s appeal rights. He’ll have three business days to commence the process. If/when (when) he does, Commissioner Roger Goodell will have the ability to preside over the appeal personally, or to designate someone else to handle it.

Typically, the Commissioner personally handles one decision or the other, but not both. With Tom Brady‘s suspension, Goodell delegated the initial decision to Troy Vincent, and Goodell handled the appeal. With Greg Hardy’s suspension, Goodell issued the suspension and delegated the appeal to Harold Henderson (who reduced the suspension). With Ray Rice, Goodell issued the initial decision to suspend Rice indefinitely after the elevator video surfaced, and Goodell assigned the appeal to a truly independent arbitrator — whose decision to scrap the suspension means that Goodell likely won’t be doing that again.

After the appeal is finalized, Elliott will have the right to seek judicial intervention. Even if he eventually loses (and he likely would lose), he could potentially delay the suspension by obtaining a preliminary injunction blocking the suspension until the case is resolved. Brady did that two years ago. Several years before that, former Vikings defensive tackles Kevin and Pat Williams delayed a suspension in the Starcaps case for multiple seasons. (By the time the case ended, Pat Williams had retired.)

The NFL also could choose to do what it did in the Brady case — filing a lawsuit that seeks a declaration that the suspension is valid in a favorable forum before Elliott can file in a place where he’d be more likely to win. Two years ago, the league immediately filed suit in federal court in Manhattan after denying Brady’s appeal.

Although the league lost at the first level, the win in the appeals court makes the Southern District of New York an even more attractive option.

Bottom line — there’s still a chance that Elliott will possibly play all of the 2017 season, even if his internal appeal is resolved before Week One.

Mexico seeks to extend deal with NFL to host games

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Mexico seeks to extend its relationship with the NFL beyond the original three-year deal to host a regular-season annually.

The Raiders played the Texans in the first-regular season game in Mexico since 2005, and the Raiders return this season to play the Patriots in Azteca on Nov. 19.

“We need to keep working hard to be as successful as last year in order to have a chance to continue with this project and that the game is here to stay,” Arturo Olive, the NFL Mexico office director, said, via The Canadian Press.

A league study estimated that the 2016 game generated $45 million for Mexico City’s economy as it drew 76,473, including 9,500 international tourists. An estimated crowd of 205,000 attended the NFL Fan Fest during the weekend.

“We are giving everything, Olive said. “We set the bar high for last year’s game, and we were successful, but we’re trying to do even better this year.”

During the 2016 game, then-Texans quarterback Brock Osweiler complained of a laser light interfering with his vision, and paper planes sailed onto the field. Some fans also participated in a homophobic chant during kickoff.

Olive said Mexico would love to go beyond annually hosting a game to having a team hold training camp there. The summer heat is an obvious problem, though.

“We have not been able yet to find a way to make it comfortable for them to leave the places where they usually do it,” he said. “In the meantime we are happy that the league trusted us with three games and we hope to keep this going for the years to come.”