Now that arbitrator Harold Henderson has reduced the 10-game suspension imposed on Cowboys defensive end Greg Hardy by Commissioner Roger Goodell to four games, the question becomes whether Hardy will continue the fight.
Before Henderson’s ruling, Hardy was fully committed to fighting anything more than a two-game suspension. Now that he has picked up six games through an internal appeal process that many expected to result in a rubber-stamping of Goodell’s decision, the analysis changes a bit.
So let’s consider Hardy’s options. With numbers and stuff.
1. Do nothing.
Hardy can accept the four-game suspension, which means he’d show up for training camp and the preseason, exit the team for four weeks, return on the Monday after the Week Four game against the Falcons, and get ready to face the Patriots (who may or may not have Tom Brady) in Week Five.
2. Sue and seek a preliminary injunction.
Hardy and the NFLPA believe that the suspension should have been only two games under the Personal Conduct Policy that applied in May 2014, when the incident between Hardy and his ex-girlfriend occurred. Henderson’s convoluted ruling seemed to pick four games out of thin air, obtusely pretending that the NFL didn’t change the Personal Conduct Policy in the aftermath of the Ray Rice case.
The argument is fairly simple: Rice got two games for knocking out his then-fiancée. Under that standard, the Hardy and the NFLPA can argue in federal court that he should have gotten the same thing.
Given that Henderson took 43 days to reach a ruling that could have been issued a lot sooner than that, Hardy and the NFLPA now have limited time to get a ruling on his availability for the third and fourth games of the season before Week Two ends. Which means that the lawsuit could be accompanied by a motion for preliminary injunction, aimed at allowing Hardy to return and play after missing two games, pending the outcome of the court case.
There’s precedent for such a maneuver. Several years ago, Vikings defensive tackles Kevin and Pat Williams obtained a preliminary injunction when fighting their suspensions in the StarCaps case. (Ultimately, Pat Williams retired before the litigation ended and the suspension was implemented.) Under the notion that players who miss games can never go back and play those games if the suspension is later scrapped, a court could rule that Hardy should be permitted to serve two games and defer the next two games until his challenge is resolved.
The risk would be that the challenge would be resolved at an inopportune time for Hardy, like in January as the Cowboys prepare to chase postseason glory — and as Hardy prepares to make a high-profile closing argument for a gigantic contract on the open market. Or perhaps the case wouldn’t be resolved at all during the 2015 season, which would put the two-game suspension over Hardy’s head as he tries to get a new deal.
Which makes option three more attractive.
3. Sue and don’t seek a preliminary injunction.
Hardy can sue without seeking the right to play pending the outcome of the lawsuit. So he could challenge the suspension, serve the full four games if the case isn’t resolved by the middle of September, and thereafter continue to pursue compensation for the two extra games he missed.
If Hardy is thinking about not fighting the suspension at all, this is the nothing-to-lose version of that same approach. He’d still miss the games, but he could make the money, prove his point, and yet again show that the NFL consistently overreaches when it comes to disciplining players.
4. Sue, seek a preliminary injunction, and settle.
If Hardy is going to sue, there’s no reason not to seek a preliminary injunction — even if he’d rather miss Week Three and Week Four in lieu of having a two-game suspension hanging over him over the balance of the season (or after the season, which would make him less attractive on the open market).
The pursuit of a preliminary injunction has value from a settlement perspective. If Hardy makes a strong case for being permitted to play pending the outcome of the case, and if the judge makes it clear at the hearing on the motion for preliminary injunction that the judge is inclined to let Hardy play while the case proceeds, Hardy could then try to settle the case, using the potential for a court order allowing him to play as leverage to get a better deal.
Whatever the approach, a decision is expected early this week. If a lawsuit is going to be filed, the paperwork could be put together fairly quickly. The only question is where the NFLPA would choose to file the suit.