Dallas Cowboys running back Ezekiel Elliott will play against the New York Giants on Sunday at AT&T Stadium.
Elliott was suspended by the NFL without pay for six games on Aug. 11 for violating the league’s personal conduct policy.
A hearing on a temporary restraining order to block Elliott’s suspension until the case is decided in court lasted more than two hours in Sherman on Tuesday evening. A ruling isn’t expected until Friday.
Still, Elliott will be allowed to practice and play with the Cowboys until next Tuesday regardless of the decision.
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Also late Tuesday evening, arbitrator Harold Henderson upheld the league’s six-game suspension following last week’s appeals hearing in New York. His suspension, over allegations of domestic violence against former girlfriend Tiffany Thompson, is set to begin next week if the restraining order is not granted.
The NFL also filed a lawsuit in New York federal court late Tuesday seeking to confirm the arbitration ruling, saying the proper jurisdiction for the case is New York, not Texas, where Elliott’s representatives filed suit.
“We are extremely disappointed with Mr. Henderson’s inability to navigate through league politics, and follow the evidence and, most importantly, his conscience,” Elliott responded in a statement from his lawyers.
“The evidence that Mr. Elliott and his team presented on appeal clearly demonstrated that Mr. Elliott was the victim of a conspiracy orchestrated by the National Football League and its officers to keep exonerating evidence from the decision-makers, including the advisors and Roger Goodell. The only just decision was to overturn the suspension in its entirety.
“Mr. Elliott is looking forward to having his day in federal court where the playing field will be level and the NFL will have to answer for its unfair and unjust practices.”
Henderson was direct in his ruling, telling Elliott in a letter that NFL commissioner Roger Goodell followed the process for imposing judgment “step by step.”
“In a case involving violation of a policy, fair and consistent means whether the process and result were in compliance with the terms of that policy. This one is, in every respect,” Henderson said.
Henderson also refused to consider claims of new evidence, noting that it was “not his job to review the case and second guess” Goodell’s decision.
Whether Elliott has his day in federal court will be decided by U.S. District Judge Amos Mazzant on Friday when he will render a decision on whether to grant the TRO to block the suspension and hear the case.
But Elliott will be on the field for the season opener against the Giants because Henderson did not make his decision on the appeal before 3 p.m. Tuesday.
If the TRO is denied, Elliott will be suspended from Weeks 2-8 and won’t be eligible to return until Nov. 5 against the Kansas City Chiefs. It means he would miss games against the Denver Broncos (away), Arizona Cardinals (away), Los Angeles Rams (home), Green Bay Packers (home), San Francisco 49ers (away) and Washington Redskins (away). The Cowboys have a bye the weekend of Oct. 15.
Elliott, however, left the hearing before a packed courthouse of reporters, lawyers and Cowboys fans in Sherman, roughly 65 miles north of Dallas, with renewed hope of maybe being heard in court.
Elliott’s argument, made by NFLPA lawyer Jeffrey Kessler, was that the arbitration process was not fair because of procedural errors made by Henderson when he denied requests for Thompson to testify, the notes of lead investigator Kia Roberts and for NFL Commissioner Roger Goodell to be compelled to testify.
NFL lawyer Daniel Nash argued that Henderson’s decisions were grounded in and consistent with the rules of the league’s collective bargaining agreement with the players.
“It’s for the NFL arbitrator to decide,” Nash said, while using previous cases with New England Patriots quarterback Tom Brady in Deflategate and former Minnesota Vikings running back Adrian Peterson’s child abuse case. “An injunction would be a blatant interference with the collective bargaining agreement we have.”
But Mazzant questioned the league’s point and Henderson’s decisions, saying he didn’t see the Brady and Peterson cases having the same facts.
He also accused the NFL of minimizing the impact of Roberts and how she was removed from the process and before the initial decision despite being the only person to interview all 26 witnesses in the case, including Thompson six times.
Roberts didn’t find Thompson to be credible and said there was not enough evidence to warrant discipline, yet her notes were not in the final investigative report and she was barred from a meeting with Goodell when a final decision was rendered.
That Thompson was not asked to testify was also questioned by Mazzant because of the NFL’s policy that states when a player has not been arrested or charged there must be credible evidence to render a suspension.
“These are a series of events I can’t ignore,” Mazzant said.
While it was always expected that the NFL would seek a change of venue to New York if the case wasn’t thrown out, Mazzant’s perspective and questions on Tuesday made it even more imperative.
Mazzant must now weigh whether Elliott meets the criteria for an injunction, including the likelihood of success based on merits of the case, a threat to suffering irrerapable harm, whether balance of harm outweighs damage the injunction might cause to the NFL and whether the injunction would cause no disservice to public interest.
Mazzant gave them until the end of the day Wednesday for any additional filings. He said he would rule by 5 p.m. Friday.
If the TRO is granted, Elliott might stay on the field for the entire season and the legal ramifications could play out all year in court with a battle of jurisdiction on the immediate docket.
Cowboys vs. Giants
7:30 p.m. Sunday, KXAS/5