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(Photo by Joe Robbins/Getty Images)
ARLINGTON, TX - JANUARY 15: Ezekiel Elliott #21 of the Dallas Cowboys talks with owner Jerry Jones prior to the NFC Divisional Playoff game against the Green Bay Packers at AT&T Stadium on January 15, 2017 in Arlington, Texas. The Packers defeated the Cowboys 34-31. (Photo by Joe Robbins/Getty Images)

Ezekiel Elliott Suspended 6 Games and Why in the End it’s the NFLPA’s Fault

The NFL announced Friday it has suspended Dallas Cowboys running back Ezekiel Elliott for six games to start the 2017 season. The suspension stems from accusations of domestic assault that were leveled against him last July. He was not arrested and no charges were filed by authorities, but the NFL launched its own investigation.

It’s a standard process for the NFL to conduct an independent investigation into any domestic violence allegations to determine whether a player violated the personal conduct policy. A player can be disciplined under the league’s policy even if he hasn’t faced legal charges.

In a July 2016 report filed with the Columbus, Ohio police department, a woman who identified herself as Elliott’s former girlfriend claimed that he attacked her several times over the course of a week, including an assault that allegedly took place while she was sitting in the driver’s seat of her car. In addition to filing a report, the woman posted photos to her Instagram page showing bruises on her leg, arms, hand, and neck.

Elliott denied that he and the woman had lived together, and he told authorities that she suffered the bruises in a bar fight, according to the report.

The police report says that officers spoke with four witnesses, all of whom said that they did not see an assault take place. The ex-girlfriend was referred to the prosecutor’s office by police, citing conflicting information.

The same woman also called Florida police in February 2016, alleging Elliott pushed her against a wall. No charges were filed in either case.

The woman cooperated with the NFL’s investigation, which lasted over a year. Four expert advisors from outside the league assisted the investigation: Peter Harvey, a former attorney general for New Jersey; Kenneth Houston, a Pro Football Hall of Famer; Tonya Lovelace, CEO of the Women of Color Network, Inc.; and Mary Jo White, former U.S Attorney. Elliott met with the advisors in June.

In a letter sent to Elliott by Todd Jones, the league’s special counsel for conduct, those advisors “were of the view that there is substantial and persuasive evidence supporting a finding that [Elliott] had been physically violent” with the woman.

The investigators looked at photographs, medical records, and text messages. Two medical experts consulted by the league determined that a series of photographs of the woman’s injuries “appear recent and consistent” to her statements.

The league also looked into another incident involving Elliott. In March of this year, he pulled down a woman’s top during a St. Patrick’s Day parade. The investigators reviewed video and interviewed the woman, who did not file a complaint. The letter sent to Elliott said “your behavior during this event was inappropriate and disturbing, and reflected a lack of respect for the woman.”

One of the final steps of the investigation came in May, when the NFLPA handed over Elliott’s phone records and other documents to the league. Elliott met with league investigators last October and with NFL officials earlier this month, according to NFL Network’s Tom Pelissero.

The first violation of the league’s personal conduct policy carries a six-game suspension, but the suspension can be reduced for mitigating circumstances.

You might ask, as have I, how the NFL can suspend a player if the legal system has dropped the charges.

The relevant legal test for whether the NFL can discipline Elliott is whether the discipline complies with the collective bargaining agreement signed by the NFL and Elliott’s union, the NFLPA. As in other management-labor relationships, the CBA for NFL players dictates when, and under which circumstances, the league and teams can fine, suspend or expel. The applicable provision of the CBA is Article 46, which instructs that the commissioner can punish a player who engages in “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” The appropriate meanings of the phrases, “conduct detrimental,” “integrity of” and “public confidence” are all determinable by the commissioner on a case-by-case basis. “Conduct detrimental” can thus apply to very different kinds of player controversies. This is true when they concern genuinely serious allegations of domestic violence or when they involve far less important allegations of equipment tampering.

You might also ask, can Elliott sue the NFL and win?

Let’s look at the NFL’s controversial disciplining of Tom Brady and Adrian Peterson. Those two players filed federal lawsuits against the NFL. Both lawsuits failed for the same basic reason: Article 46 empowers Goodell to find facts, issue punishments and hear appeals as an arbitrator. Further, even if Goodell is flat out wrong about his conclusions, a court will not disturb those conclusions. So this falls on the NFLPA and the collective bargaining agreement that the NFLPA agreed to, so in essence, if players don’t think it’s fair, they should not have allowed it.

Can Elliott Appeal?

Yes, he can. Elliott has one such administrative remedy under the CBA: appeal the suspension back to Goodell in accordance with Article 46. The hearing would likely involve experts, though the ultimate decision-making authority would rest with the hearing officer (also known as the arbitrator, who would be Goodell or a designate of Goodell’s choosing). Elliott has three business days to appeal and it is expected that he will do so. After an appeal is filed, the NFL would then hold a hearing within 10 business days. Elliott’s suspension is currently scheduled to begin on Sept. 2, the day of final roster reductions. Until then, he can continue to practice with the Cowboys and play in preseason games.

What will happen?

I think Elliott probably loses the appeal. While there is a chance the fine could be reduced to 2-4 games, I think with the public perception of the NFL domestic abuse problem that Elliott is going to be suspended at some point and the NFLPA has no one to blame but themselves.

 

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