The paperwork filed by the NFL in response to Cowboys running back Ezekiel Elliott‘s lawsuit aimed at blocking his suspension is, for the most part, persuasive and expected. The league claims Elliott began the race to the courthouse prematurely by filing suit before a ruling from arbitrator Harold Henderson was issued, which justifies not only a denial of the effort to block the suspension pending the conclusion of the litigation but also a dismissal of the lawsuit entirely.
But the league undermines its otherwise well-crafted arguments by relitigating an issue that it has lost multiple other times: The NFL claims that a player who is kept from playing games while he potentially attacks a suspension successfully in court does not suffer “irreparable harm.”
From the StarCaps case to the Tom Brady lawsuit, judges consistently have agreed that football players who are kept from playing — and who later win a ruling that their suspensions were invalid — suffer harm that can’t be repaired with a traditional award of financial compensation for the wages lost during the suspension. A comparison of football players to other workers simply doesn’t fly in this setting; most employees would welcome what eventually becomes a post-hoc paid vacation. In contrast, many football players would play for free, and most if not all are chasing award, legacies, and team goals like making it to the playoffs and winning a Super Bowl.
So why include a losing argument in otherwise impressive legal documents? Apart from the fact that over-lawyering happens all the time (especially when lawyers are paid by the hour), the league knows that the same argument regarding “irreparable harm” applies to the still-new procedure for putting players on paid leave pending the resolution of criminal charges.
The league stubbornly insists that it’s not punishment to put a player on paid leave, since the player receives his regular salary while on the Commissioner’s Exempt list. At some point the league may have to defend that position in court. So the league can’t concede in Elliott’s case that he’ll suffer irreparable harm if he eventually gets paid for the six games he’ll miss, since that could become the foundation for an eventual attack on the league’s use of paid leave.