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Will Ezekiel Elliott Continue to Play?

Today’s hearing was all about whether NY Judge Katherine Failla should keep a hold on Ezekiel Elliott’s suspension and let him play until she has a chance to hear and decide the case where the Players Association is challenging the entire suspension. If she decides yes, he will likely play the whole season because it will take months to go through discovery, set a trial date and answer motions back and forth. If she decides no, the NFL can suspend him right away. No matter how she decides, both are sides are likely to run to the NY Court of Appeals and challenge her decision, which could again throw a wrench into the mix. However, a win for Elliott is a lot less likely to be overturned on appeal than a loss. I believe if he wins tonight. It will stand and he will play the season.

So what went down today?

Ezekiel Elliott was in a NY courthouse today, drinking bottled water and dressed to impress. He quietly listened as his lawyer Jeffrey Kessler, who represents the NFLPA, fought like a madman to plead his case. Kessler’s style is relentless and he remained true to form, arguing in circles, and challenging every point made by NFL’s counsel. The NFL had Paul Clement in from Washington D.C. and he was a bit calmer in his discourse yet it was clear he too came to win.

The first thing the Judge wanted to know is, what’s going on with that case in Texas? The NFLPA responded that the case has now been dismissed and he doesn’t anticipate continuation within the 5th circuit. The case is in NY now.

Next the Judge wants to know if she should read Goodell’s final report outlining his decision to suspend Elliott. The NFLPA fires back that the report was not sufficient. Kessler argues that discipline has to be fair and consistent and in compliance with the personal conduct policy. He points out that Elliott was never criminally charged and urges the Judge to question whether Goodell was fair and whether the evidence was actually credible.

The Judge pushes back regarding the NFLPA’s conspiracy theory that NFL executives tried to hide evidence, namely the lead investigator’s conclusions. Kessler must admit that he doesn’t know who the conspirators were because it’s not public.

The Judge seems skeptical about the conspiracy theory, saying, “I’m not ready to say there is a conspiracy just yet…” Judges are supposed to play devil’s advocate when lawyers are making their arguments. They are supposed to question them in a challenging way. However, the fact that she said, “just yet,” could mean she wants to hear this case. This is a good sign she will keep the suspension on hold until she can explore the facts at trial. Think about it, if he’s suspended, then there’s really no case, since the case is about whether he should be suspended.

Fundamental fairness is a big theme. However, there was also the question of whether the NFLPA had adequate grounds to litigate this case. This is where Brady’s case was discussed. What does Brady stand for? This is a big question that could be sorted out if Elliott’s case is heard. The Brady court left the question of whether NY Courts should decide if an arbitration is fundamentally fair, open. This means, the court may decide if Elliott’s case violated fundamental fairness, or may decide not to touch that issue.

A key question when it comes to fairness is whether it was unfair for Elliott to not be allowed to cross-examine his own accuser. However, the Judge says there is no rule of evidence that requires this in an arbitration under the CBA.

However, the Judge did press the NFL about the lead investigator’s concerns over the accuser’s credibility and whether those concerns were made known to Goodell. Clement says they were. The Judge also calls lead investigator Kia Roberts a “key witness.” Roberts testified but her conclusions and some notes were not made available to the NFLPA or Elliott.

Regarding whether Elliott would be harmed if suspended, the Judge acknowledges that courts have found suspensions of athletes constitute irreparable harm. However, in order to keep his suspension on hold she also needs to find he has a likelihood of winning the case on the merits, and this is where she seems to be probing.

The NFL claims it will be harmed if it can’t enforce its domestic violence policy, an argument that failed with the last Judge who issued a temporary restraining order, reasoning that it could impose the suspension down the road if it lost the case. The NFLPA bit back that Elliott, the team and league would all be harmed if the suspension moves forward while the case is pending.

The Judge played it straight down the middle. She was fair and treated each lawyer with the same amount of oompfh that was directed toward her. She wanted time to reason out her decision because she knows it will be challenged on appeal and wants it to be solid so it’s not overturned. However, it seems she knew exactly how she was going to rule before she left the courtroom. Decision should come down any minute.

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