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.