Ezekiel Elliott’s Run Through Federal Courts

This is an article about the standards for irreparable harm in appellate courts’ review of arbitral awards under the Labor Management Relations Act.

But wait!

Before you stop reading, the “management” in this case is the National Football League, the “employee” is Ezekiel Elliott — the star running back for the Dallas Cowboys, one of the league’s most valuable franchises — and the “arbitral award” is the affirmance of the NFL’s suspension of Elliott for alleged domestic violence in 2016.

The headline-grabbing nature of a case that presents an otherwise dry legal issue begs the question: Is there something about Elliott’s case or other sports cases that makes them unique? Or does this case offer lessons for advocates in lower profile cases?

Elliott and the charges against him

For many readers of this column, Ezekiel Elliott needs no introduction. He is a second-year running back for the Cowboys who, in his first year, led the NFL in rushing with 1,631 yards and 15 touchdowns, and led this team to a resurgent performance in 2016. With Elliott and other young talent, the Cowboys were expected to contend for a Super Bowl berth in 2017.

Elliott’s future was called into question in August 2017, when the NFL announced that it had suspended him for six games pursuant to the personal-conduct policy in the Collective Bargaining Agreement between the league and the players’ union, the NFLPA. The league concluded after an internal investigation that Elliott had committed domestic violence against a former girlfriend in Columbus, Ohio. Elliott and the NFLPA exercised their right to appeal the suspension to a league-appointed arbitrator.

Elliott’s long run

After the appellate arbitration hearing but before the decision, the union filed an action in the Eastern District of Texas, seeking a temporary restraining order to allow Elliott to play in the upcoming season while his appeal — and an expected challenge to the fairness of that appeal — were pending. It argued that it was likely to succeed on the merits because Elliott’s suspension was likely to be overturned. The union claimed that it would suffer irreparable harm if Elliott were forced to serve an unjust suspension. According to the union, Elliott would lose precious weeks of a finite NFL career, which could not be reliably reduced to monetary damages. Among the harm that the union argued Elliott would suffer was missed opportunities for a playoff appearance and honors such as rushing champion or Most Valuable Player. The court agreed and granted the TRO, which had the effect of allowing Elliott to play the first five weeks of the season.

On the same day that the arbitrator upheld Elliott’s suspension, the NFL filed an action in the Southern District of New York to confirm the award. The union answered and asserted a counterclaim to enjoin the suspension, which set up the prospect of conflicting injunctions in separate federal courts. That prospect was short-lived, however, as the 5th Circuit shortly thereafter held that the Eastern District of Texas lacked subject-matter jurisdiction to hear the NFLPA’s original injunctive-relief action because the arbitration award was not yet final when the Texas action was filed. The 5th Circuit’s decision left the New York court with sole jurisdiction over the dispute.

By reversing the injunction, the 5th Circuit decision reinstated Elliott’s suspension. Luckily for Elliott, however, the decision came during the Cowboys’ bye week, which allowed the NFLPA to plead for an injunction in New York. Judge Paul Crotty, filling in for Judge Katherine Failla, who was assigned to the case, granted a limited TRO for the union, allowing Elliott to play in his next game while Failla considered the union’s motion for an injunction on its merits.

Failla denied the NFLPA’s request for a preliminary injunction, emphasizing the unlikelihood that the union would succeed under the “daunting” standard of overturning an arbitrator’s decision.

The 2nd Circuit weighs in

Judge Failla’s decision set up the 2nd Circuit to be the ultimate arbiter of Elliott’s 2017 campaign. Central to the 2nd Circuit’s decision was whether a professional athlete’s lost playing time constituted “irreparable harm” sufficient to justify preliminary injunctive relief. In any other labor-relations context, this would be an easy issue. Lost wages are compensable with damages, which would make injunctive relief unlikely.

But in this case, the union had several reasons to be optimistic for reversal. First, it was able to cite a “long line of cases” that it also had relied upon in Texas, which held that professional athletes’ missed playing time constitutes irreparable harm sufficient to justify injunctive relief. Second, the implicitly benefited as long as Elliott was playing because the “status quo” was preserved by keeping him on the field.

The 2nd Circuit did not accept the union’s argument, however. The court issued a summary order on Nov. 9 that paved the way for Elliott to serve his suspension.

While the court did not offer a written opinion, it appeared based on the parties’ briefing that the NFL succeeded in flipping the focus of “irreparable harm” from the player to the league’s disciplinary procedure. According to the league, if the suspension were not allowed to stand, Elliott and subsequently disciplined players could delay discipline indefinitely or until on-the-field events — such as an injury or a losing season — made it convenient to miss games. It supported its irreparable-harm argument by highlighting the “daunting standard” facing the union, which made success on the merits particularly unlikely.

In the debate over whether professional athletes deserve different treatment from other laborers when asserting claims of irreparable harm, the court seems to have come down on the side of “no.” After all, Elliott’s harm could either be reduced to damages (lost salary, bonus, and possibly likelihood of team success) or would be too speculative (accolades such as MVP).

The NFL’s success carries a few lessons for advocates faced with more mundane fact patterns. First, it highlights the value of storytelling before appellate courts as well as trial courts and juries. The NFL not only rebutted Elliott’s theory of irreparable harm, but also told its own compelling story that built on the importance of the CBA disciplinary procedure and how that was threatened by delaying the suspension.

Second, when injunctions and appeals of those injunctions are likely, advocates should be cognizant of how their clients’ out-of-court behavior will affect their equitable arguments. To the NFL’s credit, it conducted its disciplinary proceeding in a way that was consistent with its story before the court of appeals that the integrity of its disciplinary proceeding was of utmost importance. On the other hand, its decision to voluntarily allow Elliott to play in week 1 was held up by the union as evidence that imposing the suspension before the completion of judicial review would not irreparably harm the league.

As of the writing of this article, Elliott has served one week of his six-week suspension. (Dallas lost, 27-7.)  It remains to be seen whether this case or future discipline cases will offer further guidance for our practices.