It’s normally foolhardy to try to read a three-judge panel following a hearing because their questions and actions are more informational than a telling sign of the way they might be leaning.
But to use a phrase from the NFL, Dallas Cowboys running back Ezekiel Elliott should be more hopeful than not after a 60-minute hearing Monday before the Fifth Circuit U.S. Court of Appeals.
Elliott did not attend the hearing.
There were passionate arguments from the NFL and NFL Players Association lawyers regarding jurisdiction, exhaustion, merit, futility and jurisprudential doctrine in hopes of finally coming to some resolution regarding his six-game suspension for violating the league’s personal conduct policy.
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In addition to filing for an emergency stay to have a preliminary injunction overturned, the NFL has asked the entire case be thrown out on the grounds that the Texas judge who blocked the suspension didn’t have proper jurisdiction.
No decision was made on Monday.
The NFL will file a response brief by Tuesday morning. The court said it will rule quickly once that brief is filed.
A decision could come by the end of week, but could take as long as two weeks, meaning Elliott could stay on the field for Sunday’s game against the Green Bay Packers, giving the Cowboys the bye the following week to work on plans to play without him if he is forced to serve the six-game suspension.
The case could be thrown out on jurisdiction and then restarted again in New York if the NFLPA decides to file for a temporary restraining order there. Elliott would begin his suspension immediately while that is being decided.
The stay could be granted, forcing Elliott to begin his suspension while the case plays out in court.
Or the stay could be denied, likely allowing Elliott to play the entire season.
The three-judge panel of Judge Edward C. Prado, Judge James E. Graves, Jr. and Judge Jennifer Walker Elrod will decide if Elliott will become the first case in history, per the NFL, where a lawsuit was filed before the arbitrator’s final ruling and allowed to go forward.
That Elliott and the NFLPA filed suit in U.S. District Court before NFL arbitrator Harold Henderson rendered a final decision on the appeal raised questions that the judges wanted to explore before addressing the stay request.
The tone of the proceedings, where the judges challenged the NFL on fairness, irreparable harm and undermining its own process by letting Elliott play in the season opener, has Elliott’s lawyers feeling good about their chances if they are able to overcome the jurisdiction issue.
The NFL entered the case confident it would prevail with the Fifth Circuit based on jurisdiction and merit.
Pratik Shah handled the hearing for the NFL while Jeffrey Kessler argued Elliott’s case for the NFLPA.
Both lawyers were interrogated with rebuttal questions from the three judges, particularly Elrod.
She scrutinized both sides, pushing Kessler on jurisdiction and why he would introduce a brief at the last minute.
Elrod hammered the NFL on irreparable harm, particularly noting that the league undermined its own argument when it allowed Elliott to play in the season opener.
And when the NFL pointed to its process of discipline, arbitration and suspension being agreed to under the collective bargaining agreement, Graves said, “Just because it’s agreed to doesn’t mean it’s not irreparable.”
Prado chimed in with: “You can always suspend him next season.”
Graves also zeroed in on the issue of fundamental fairness and the fact that lead investigator Kia Roberts was allowed to personally talk to NFL Commissioner Roger Goodell about her findings by asking, “it matters what information was given to the commissioner, doesn’t it?”
The NFL was also asked why Roberts’ recommendation of no discipline for Elliott was not included in the investigative report and whether that was the normal precedent.
It would have been in the report under the old policy but not the new domestic violence policy, which was being used for the first time, the NFL said.
The NFL was also questioned on the lack of options to challenge an arbitrator’s ruling in the collective bargaining agreement, which speaks to the NFLPA’s futility argument on why it had to go to the court system for recourse.
Kessler shocked the court, saying the NFLPA and Elliott intend to seek discovery in the case if it allows it to go forward with hopes of putting Goodell on the stand and finding out exactly what he knew before making the decision.
Kessler said the NFL put “themselves on a higher standard” when it mandated in the CBA that it would only suspend a player absent an arrest or conviction if it had credible evidence.
And then used the zinger with Henderson’s statement on the evidence that he deferred to “the facts of the commissioner,” though he “doesn’t know what those facts are, whatever they are.”
Elliott was initially suspended Aug. 11 for allegedly committing domestic violence against Tiffany Thompson. No arrest or charges were filed in the case.
Cowboys vs. Packers
3:25 p.m. Sunday, KDFW/4