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For Ezekiel Elliott Judge, domestic violence outweighs Elliott fans

In a shocking decision that literally knocked me off of my couch, a NY Judge disagreed with the decision and reasoning of her colleague and reinstated Cowboys' Running Back , Ezekiel Elliott's suspension. Let me emphasize that this is extremely rare. Two weeks ago, her colleague, Judge Crotty said the NFL's arbitration raised serious questions regarding fairness and that Elliott would be irreparably harmed if he missed games.

In stark contrast, this Judge disagreed on every point and she made it clear that concerns over domestic violence outweigh football fans' desires for Elliott to take the field. I'm assuming she's not a football "enthusiast" herself, because in her opinion Judge Katherine Failla called the sport of football "controlled carnage" (I mean it can be bloody but it's not mass murder for goodness sake).

While the NFL Players Association, representing Elliott, argued that it would be in the public interest (the NFL players, Cowboys fans, NFL and general public) to put the suspension on hold while the court hears the case, Failla called the NFLPA's view of the public interest "one-sided," meaning on the side of football fans.

She views the public interest at the crossroads of "the public's desire for the controlled carnage that is the sport of football" and "the NFL's ability to discipline players for off-the-field violence." Meaning Failla says this isn't just about football, fantasy teams, or a team win, it's about domestic violence and the league's ability to discipline alleged abusers. Failla says the public interest weighs in favor of denying Elliott relief, "particularly where the relevant CBA" gives "those in positions of authority" the ability "to address an issue as dire as domestic violence."

The Judge said NFL would be harmed not Elliott

The NFLPA & Ezekiel Elliott claimed he would suffer irreparable harm if he missed games because he would lose the opportunity to achieve (for example, retain title as League's leading rusher or qualify for the ProBowl). He also claimed damage to his reputation, overall market value and lost future earnings as a result of the snowball effect. But the Judge called these "speculative" losses that don't warrant an injunction (hold on his suspension).

"...any individual honors Elliott might attain absent suspension depend on countless variables — such as the Cowboys’ overall offensive performance, his opponents’ defensive performance, and Elliott’s health — that together render this alleged harm far too speculative ...As for damage to Elliott’s reputation, cases in this Circuit require a more concrete economic impact than mere negative publicity to constitute irreparable harm."

In contrast, the Judge cites the NFL"s "critical interest" in "combating off-the-field misconduct." She says the NFL has an "interest in obtaining the benefits of its bargain" under the CBA and if "courts such as this one" can "micromanage the disciplinary decisions of the Commissioner," then they would lose the all encompassing Goodell power they bargained for under the CBA.

The Judge concludes that the NFL will be harmed far greater than Elliott if it can't enforce its domestic violence policy especially in light of recent criticisms.

"Indeed, all parties to this litigation are keenly aware of recent criticisms of the NFL’s efforts to redress and combat domestic abuse by NFL players. Put simply, Elliott’s personal concerns, while not insubstantial, are outweighed by the broader, league-wide concerns..."

The Judge said the arbitration was fair

Even though federal arbitration law says that arbitrators are guilty of misconduct in "… refusing to hear evidence pertinent and material to the controversy" , the Judge disagrees here.

The Judge says that "fundamental fairness" shouldn't apply to this case, because this is a labor dispute not just any commercial dispute. For labor disputes between employer and employee, the Judge says courts shouldn't really be intervening. She thinks interference could send any unhappy employee facing "industrial strife" running to court for relief and it would undermine arbitrations everywhere. Further, arbitrators will be running scared and have to prepare "detailed and legalistic" decisions to protect their awards from "judicial reversal."

HOWEVER, she says even if "fundamental fairness" did apply, then the NFL's arbitration was still fair. The Judge gives broad discretion to arbitrators over what evidence they can allow into an arbitration.

With regard to the NFL, she says there was no rule in the CBA saying Roger Goodell has to testify in an arbitration and no rule that Elliott's accuser must testify.

The NFLPA viewed both Goodell and accuser Tiffany Thompson as material witnesses to the case and said their exclusion made the proceedings unfair.

But the Judge says, "arbitrators are not required to apply the normal rules of evidence that might otherwise compel a right of confrontation." She goes on to say, "And given Thompson’s alleged abuse" that the arbitrator could "reasonably interpret the CBA to decline to compel testimony that would be emotionally difficult..."

With regard to the NFLPA's conspiracy theory that NFL executives hid evidence and the conclusions of its lead investigator Kia Roberts who didn't think Elliott should've been suspended, the Judge denies that it rose to the level of unfairness. She says that Robert's concerns over Thompson's credibility were communicated to Roger Goodell and factored into his decision. She doesn't seem to find it super important that Robert's conclusion that Elliott shouldn't be suspended wasn't included in the final NFL investigative report and maybe not even communicated to Goodell. Why not? Well because she says that the basis for Robert's conclusion was that Thompson wasn't credible and that basis was communicated to Goodell even if her conclusion was not.

NFL players get special treatment, Judge says

Citing one random article from commentators Michael Z. Green & Kyle T. Carney called "Can NFL Players Obtain Judicial Review of Arbitration Decisions on the Merits When A Typical Hourly Union Worker Cannot ObtainThis Unusual Court Access," the Judge states a public policy concern that NFL players do and will continue to get preferential treatment over your average laborer when challenging arbitration awards in court if they can get a court to review decisions so easily. (Meanwhile the Judge bizarrely kept staff such as clerks, and the courthouse open late to issue this decision at 10pm at night, presumably because of its high-profile nature).

She says, "And, of potentially greater relevance to the issues in this case....courts reviewing arbitral awards have been more receptive to arguments raised by NFL players than other unionized workers, thereby creating unequal access to justice among workers who participate in arbitrations."

The Judge uses Brady to send a message to players to stay out of court

Finally, the Judge sends a stern message to future players who want to run to court to challenge an arbitration decision from the NFL. The gist of that message is : fat chance. In the below chunky paragraph that she pulled from the Tom Brady court's opinion, the Judge emphasized that the NY courts won't even review arbitration awards except for in rare circumstances, such as when an arbitrator goes totally rogue and dispenses his or her own "brand of industrial justice."

She quotes Brady in saying, "Our review of an arbitration award under the LMRA is … very limited. We are therefore not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties’ agreement, but inquire only as to whether the arbitrator acted within the scope of his authority as defined by the collective bargaining agreement....It is the arbitrator’s construction of the contract and assessment of the facts that are dispositive, however good, bad, or ugly. … . In short, it is not our task to decide how we would have conducted the arbitration proceedings, or how we would have resolved the dispute....As long as the award draws its essence from the collective bargaining agreement and is not merely the arbitrator’s own brand of industrial justice, it must be confirmed. If the arbitrator acts within the scope of this authority, the remedy for a dissatisfied party is not judicial intervention, but for the parties to draft their agreement to reflect the scope of power they would like their arbitrator to exercise."

In English the above basically says this to the NFL and NFLPA regarding their bargained for CBA, "you asked for this, you got it, deal with it and don't bother us with this circus."

Bottom Line

The Judge felt there was credible evidence in the NFL arbitration such as medical testimony, texts, witnesses, photos, etc. She thought Goodell based his decision on that credible evidence. She thought Goodell took into account Roberts' credibility concerns regarding accuser Tiffany Thompson. She didn't think Thompson, an alleged domestic abuse victim should've been forced to testify. She doesn't seem to think courts should be used as weapons in the context of labor disputes after a CBA is negotiated for and agreed upon just because a player doesn't like the result. She doesn't think it's the court's place to question an arbitrator's decision unless there is an outrageous circumstance. She also doesn't think that a court should decide "rules of evidence" for an NFL arbitration (even if the league is running its own investigation and mini justice system, because again rules of evidence were not agreed upon in CBA). And finally, she clearly thinks that the power to discipline players accused of domestic violence outweighs Elliott's opportunities to achieve in his sport and also outweighs, and I quote, "the public’s desire for the controlled carnage that is the sport of football."

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