Back before I ditched practicing law to cover the NFL exclusively, one of the things I learned (the hard way) was this: If you demand a ruling from a judge, you’ll likely get a ruling you don’t like.
The lawyer representing Cowboys running back Ezekiel Elliott apparently hasn’t learned that lesson yet, as evidenced by his curious decision to publicly agitate for exoneration of his client by the NFL in its ongoing investigation into whether Elliott committed domestic violence in July 2016.
Frank Salzano cited in his Monday press release “a mountain of exculpatory evidence demonstrating Mr. Elliott’s innocence,” and he accused the alleged victim of making “false allegations.” It’s always risky, however, to call someone a liar; it’s much better to find a way to demonstrate dishonesty in a calm, dispassionate manner that demonstrates, objectively, that the claims being made are not accurate.
Instead, Salzano has taken a verbal blow torch not only to the accuser but also to the media and to the league office. While that sort of bravado and rhetoric may work when the people deciding the matter are average voters who easily are bamboozled because they lack a full appreciation of the nuances of the issues or the surgical cynicism to understand how and why they’re being snowed, these tactics won’t work on the league office.
“The media has chosen to deflect the recent negative press regarding the NFL’s reported mishandling of several domestic violence matters by focusing on the NFL’s prolonged investigation of Mr. Elliott,” Salzano alleged in his press release. Beyond the fact that his argument confuses the media’s role in generating “recent negative press” with the league’s desire to avoid it, Salzano’s suggestion that the media is seizing on the Elliott investigation for reasons related to the Brown case makes no sense. The cases are different, but each one is relevant and newsworthy.
As to Elliott, the news (as summarized and reported on NBC’s Football Night in America) is this: (1) Elliott spent a little more than an hour answering questions posed by the league roughly a month ago; (2) the alleged victim is cooperating with the league; (3) there is no timetable for resolving the situation; and (4) many players are paying attention to the manner in which the league handles Elliott’s case because Giants kicker Josh Brown, who is white, initially received a suspension of only one game, despite the league’s position that the new standard punishment for domestic violence is six games.
If the allegations against Elliott are false, Salzano needs to let the NFL come to that conclusion on its own. As long as the investigation is open, Elliott loses neither a single dollar nor the ability to play. By pushing the NFL to act, Salzano could end up nudging the league office to exercise its broad discretion to place Elliott on the Commissioner’s-Exempt list pending the completion of the investigation, the imposition of discipline, and the pursuit of any internal appeals.
Ultimately, the rules allow the NFL to do whatever it wants to do. With the league already facing on one hand a sense of urgency to re-establish that it’s serious about domestic violence in the aftermath of the Josh Brown case and on the other hand a desire to create the impression that a deliberate and complete investigation was conducted, extra pressure from Elliott via his lawyer won’t make the NFL inclined to find a way to give him the benefit of the doubt.
Although Salzano seems to believe that the decision to not charge Elliott means he’s innocent, the truth is that dramatically different standards apply in the criminal justice system and the NFL’s in-house quasi-judicial procedures. Prosecutors typically don’t seek charges in cases where they believe “reasonable doubt” can be proven. For the NFL, where the much lower “more probable than not” standard applies, it’s possible to find a player guilty even if he never would be convicted by a jury that hears an if-it-doesn’t-fit-you-must-acquit-style closing argument.
Here’s the key paragraph from an email that the Columbus, Ohio prosecutor recently sent to USA Today: “I personally believe that there were a series of interactions between Mr. Elliott and [his accuser] where violence occurred. However, given the totality of the circumstances, I could not firmly conclude exactly what happened. Saying something happened versus having sufficient evidence to criminally charge someone are two completely different things. Charging decisions are taken very seriously and we use best efforts to conduct thorough and detailed investigations.”
In other words, the prosecutor didn’t believe that a jury could be convinced beyond a reasonable doubt that Elliott was guilty. For the NFL, the question is more simply: Between Elliott and his accuser, who is more likely to be telling the truth?
That’s not an easy question to answer, and Salzano is doing Elliott no favors by demanding that the league should decide without further delay that his client is telling the truth and that Elliott’s accuser is lying.