NFL arbitrator Harold Henderson is expected to make a ruling by Tuesday on Dallas Cowboys running back Ezekiel Elliott’s appeal of a six-game suspension for violating the personal conduct policy.
Elliott is not waiting that long for a decision.
Fueled by what they believe were procedural errors made by the NFL during the initial ruling, Elliott and the NFL Players Association filed suit in federal district court in Plano on Thursday night in hopes of gaining a temporary injunction to block the suspension, allowing him to play until the case is resolved.
According to the suit filed in U.S. District Court in Plano, just outside the Cowboys’ Frisco headquarters, the NFLPA said Elliott was subject to one of “the most fundamentally unfair arbitral processes conceivable.”
It also read that “Elliott and the Union were subjected to an arbitration process in which, among other things, there was a League-orchestrated conspiracy by senior NFL executives, including NFL Senior Vice President and Special Counsel for Investigations Lisa Friel, to hide critical information, which would completely exonerate Elliott.”
The NFLPA asks that any ruling by Henderson on the subject be vacated. The court would be asked to consider the “unfair processes” during the stay, allowing Elliott to play while matters were resolved in court.
Elliott’s defense team consists of his attorneys, Frank Salzano and Scott Rosenblum, as well as two attorneys from the NFLPA, Jeffrey Kessler and Heather McPhee, who both have had previous litigation success against NFL.
The bombshell came when NFL lead investigator Kia Roberts testified that she recommended no suspension for Elliott after months of analyzing the case and speaking with his former girlfriend, Tiffany Thompson, who had accused Elliott of domestic violence.
According to a source, Roberts’ recommendation was not included in the investigative report following the 13-month investigation. Roberts was the only NFL employee who interviewed Thompson during the investigation.
When NFL Commissioner Roger Goodell conducted a meeting to discuss discipline for Elliott, it included Friel; Jeff Pash, NFL executive vice president and general counsel; and Adolpho Birch, the league’s senior vice president of labor policy and government affairs, among others.
But Roberts was not at the meeting as Friel recommended a six-game suspension to Goodell, a source said.
During the appeal hearing it was testified to that Friel barred Roberts from the meeting, a source said.
Elliott and the NFLPA will attack, and plan to exploit in federal court, what they see as failures of the process during the appeal hearing.
That Roberts’ recommendation didn’t make it into the report and that she was not involved in the decision, could be pivotal against the NFL in federal court.
The suit cites the fundamental unfairness by Henderson and the NFL for refusing a request for Thompson to testify at the hearing, thus denying Elliott the opportunity to confront his accuser. The suit says Elliott did appear before the arbitrator and gave strong credible testimony denying any wrongdoing.
Henderson did not grant the request to have the accuser testify. He also did not provide Elliott or the union with the investigative notes of the six times Thompson was interviewed by the NFL.
The third deprival of fairness, per the lawsuit, was the arbitrator’s refusal to compel the testimony of Goodell, who imposed Elliott’s discipline.
Without testimony from the commissioner, the suit says, it is not possible to determine the full impact of the conspiracy, or precisely what Goodell knew or did not know about his co-lead investigator’s conclusion that there was not sufficient credible evidence to proceed with any discipline.
The league’s personal conduct policy requires “credible evidence” to support the charges in a case where the player has been accused of domestic violence.
Law enforcement in Columbus, Ohio, investigated and declined to bring any charges due to conflicting evidence and inconsistent accounts of the alleged events, the suit says.
And because Goodell was not required to testify, it was impossible for Elliott to learn additional critical facts, such as: who decided to exclude Roberts from the meeting with the Commissioner’s outside expert advisers on June 26; who asked Friel what the investigators had concluded with respect to the credibility of the charges (notwithstanding that the panel’s inquiry was never informed by Roberts’ credibility determination to begin with); or who decided not to include Roberts in Goodell’s meeting to discuss the findings of the disciplinary investigation.
Roberts’ recommendation of no discipline is the main reason Cowboys owner Jerry Jones expressed so much confidence that the case against Elliott had no merit. The NFL, however, announced the suspension on Aug. 11.
Jones was told by a top NFL executive that there would be no suspension, according to a source.
But Roberts’ recommendation never made it into the NFL’s final report or the official suspension letter on Aug. 11, which cited the league’s findings of three instances of domestic violence by Elliott against Thompson based on the victim’s testimony and photographic evidence.
ESPN’s Adam Schefter reported Thursday that Henderson is being pressured into making a decision by Monday and that a reduction is likely.
The date is key because if a decision is not made by Tuesday, Elliott could be on the field for the Sept. 10 season opener against the New York Giants. As long as Elliott is under appeal, he is eligible to play. That is the assumption the Cowboys are operating on, according to a source.
But that was before Elliott sprinted to federal court to file a temporary injunction to block the suspension.