Dallas Cowboys running back Ezekiel Elliott missed practiced Monday because he is in New York preparing for a Tuesday hearing at the NFL offices to appeal a six-game suspension for violating the league’s personal conduct policy.
Elliott will be represented by his own lawyers, Frank Salzano and Scott Rosenblum as well as two bulldog attorneys from the NFL Players Association, Jeffrey Kessler and Heather McPhee, who both have had previous litigation success against NFL.
But there is no question winning the appeal will be an uphill battle.
Elliott has already suffered three procedural setbacks in hopes of getting the suspension reduced or vacated, and he is bracing for the possibility of taking the matter to federal court if he doesn’t get an acceptable result, according to sources.
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Elliott and his representatives asked for a “truly” independent arbitrator to hear the case, someone other than Harold Henderson, a former NFL management executive picked to oversee the appeal by NFL Commissioner Roger Goodell, according to a source.
That request was denied by Goodell, who under Article 46 of the league’s collective bargaining agreement is given the authority to hear the case himself or appoint a designee.
Goodell used a more independent arbitrator in former Baltimore Ravens running back Ray Rice’s appeal of an indefinite suspension for lying to the NFL during its domestic violence investigation in 2014.
Barbara Walters, a retired federal judge, ruled in favor of Rice, who was represented by McPhee.
The league has not gone in that direction since using Henderson for high-profile suspension appeals of former Cowboys defensive end Greg Hardy in 2015 and Minnesota Vikings running back Adrian Peterson in 2014. Goodell oversaw New England quarterback Tom Brady’s Deflategate appeal in 2015.
But it was Kessler who succeeded in having Brady’s four-game suspension overturned in federal court before the NFL won an appeal to have it reinstated.
Henderson, a former chairman of the NFL’s management council executive committee, has heard roughly 90 personal conduct and drug-related appeals.
He reduced Hardy’s domestic violence suspension from 10 games to four games, but upheld Peterson’s indefinite suspension for child abuse.
When asked if he felt Henderson would be neutral enough to give Elliott hope, Cowboys owner Jerry Jones avoided the answer.
“Harold is a really great friend of mine,” Jones said. “He was at my (Hall of Fame) party and so you weren’t at that party unless you were a good friend I promise you that.”
So is that yes?
“I don’t know,” Jones responded with a laugh. “But he is a friend and of course that’s the way it would be. He managed the management council for maybe 15 years I served on it. He’s very competent, but the main thing is he’s a guy that I admire a lot. Former policeman, former attorney. He’s come through it the hard way. Literally.”
But that doesn’t mean Jones believes Henderson will be neutral.
And it’s an area Elliott’s team will attack if they head to federal court.
Henderson already has thrown Elliott a couple of major setbacks in the running back’s appeal of a six-game suspension for allegedly committing domestic violence against former girlfriend Tiffany Thompson.
Henderson denied a request to make Thompson, Elliott’s accuser, available to testify at the appeal hearing. He also denied requests for notes or transcripts from the league’s meetings with Thompson, according to sources.
Those denials make Elliott’s bid to win his appeal an even bigger uphill battle, according to a source.
But it also opens the door for possible success in federal court, if they choose to go that route, on procedural violations, per a source.
At least that’s the hope of those close to Elliott.
When the league suspended Elliott on Aug. 11, following a 13-month investigation, it concluded that there was “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, 2106.”
Goodell’s decision was aided by a four-member advisory committee, including Peter Harvey, former attorney general of New Jersey; Ken Houston, a Hall of Fame player; Tonya Lovelace, chief executive of the Women of Color Network Inc.; and Mary Jo White, former U.S. attorney and former chair of the Securities and Exchange Commission.
He also cited photographic evidence and testimony of medical professionals.
Elliott’s team has promised a vigorous defense, while blasting the league for their “factual inaccuracies and erroneous conclusions.”
They also promised “a slew of additional credible and controverting evidence will come to light” upon appeal.
They plan to question Thompson’s motive and credibility at the appeal, citing reported threats to ruin his career and discussions about blackmailing him for sex videos.
The NFL was aware of those incidents when rendering the initial decision.
It’s unlikely that Henderson would vacate the suspension barring the presentation of new evidence, according to a source.
He also will not be inclined to reduce the suspension without any evidence of contrition and admittance of responsibility from Elliott.
Elliott has long maintained his innocence in a case that did not result in an arrest or charges from the Columbus, Ohio, city attorney’s office because of inconsistent and misleading information.
The inability to cross examine Thompson, who has yet to be compelled to testify under oath or question the veracity of the investigative notes, has Elliott’s team more likely headed to court and hoping to succeed based on those procedural issues.
If Elliott does sue the NFL in attempt to obtain a temporary restraining order or a preliminary injunction, it could delay his suspension, allowing him to open the season with the team.
There is no guarantee that an injunction will be granted, but Elliott’s presence for the Sept. 10 season opener against the New York Giants is something the Cowboys are not ruling out.
Coach Jason Garrett, who plans for Elliott to be back with the team Wednesday following the hearing, said the Cowboys have been preparing like he will be ready for Week One.
“That’s the way we have prepared our team,” Garrett said. “He has done a really good job in practice getting ready ... The other guys have gotten a lot of opportunities as well.
“Obviously, they have gotten a lot more in the preseason games, they have worked with the ones, but we’ve tried to get him ready to play in Week One, understanding the appeal process will get underway.”
The big question following Tuesday’s hearing is how long it will take Henderson to make a decision.
Will it happen before Saturday, the day when Elliott’s suspension is set to begin? Or before Sept. 10, the day of the season opener against the New York Giants?
That’s when the true fireworks and the rush to federal court might begin.