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The NFL Prosecuted & Convicted Ezekiel Elliott –Will The 2nd Circuit Allow It?

It’s happened. The Ezekiel Elliott case has surpassed Deflategate. For those who never thought it was possible, substance now rules over form.

Why would an off-the-field domestic violence case attract more attention than a football scandal accusing the League’s poster boy quarterback (Tom Brady) of rigging the game? There have been countless domestic violence scandals in football, and none have detracted this much from the sport.

It’s because Elliott’s case is not about his actual innocence or guilt (we may never know what unfolded between him and his ex-girlfriend). Elliott’s case is about his prosecution and conviction by a private corporation.

Read Twitter feeds, Facebook posts, YouTube comments and you will see the clear division. The public is at odds over whether he did it. Some certain he’s guilty and must be punished. Others proclaim his innocence, because he was never criminally charged.

Why is the football world so obsessed with this man’s reputation? Because the NFL has marred it. The NFL has taken a criminal matter and not only injected it into the sport of football, but investigated it, adjudged it and punished it.

The NFL seems to believe that if the criminal justice system fails an alleged victim, it needs to save the day. Some may agree with this notion, given the high profile, high-salaried nature of professional athletes. However, taking on responsibilities such as this comes with consequences.

The NFL has turned itself into a criminal court. Think this is far-fetched? Look no further than the new and improved domestic violence policy, called the “Personal Conduct Policy.” It’s a prosecutor’s manual. Page 2 lays out all of the crimes the NFL may investigate, prosecute, convict on and punish – should law enforcement fail to do so.

It begins with the sentence, “It is not enough simply to avoid being found guilty of a crime” and goes on to say that,”even if the conduct does not result in a criminal conviction, players found to have engaged in any of the following conduct will be subject to discipline.” How will the NFL find out whether players have engaged in prohibited conduct? Well according to the policy, the league will “undertake an investigation.”

This is what it did with Elliott’s case. Hired investigators, hired medical experts to testify, collected sworn affidavits from witnesses, and even impaneled a “jury” of experts to advise “Judge” Goodell. Does this sound familiar? It’s called a court of law and a criminal prosecution. However, when Ezekiel Elliott wanted to cross-examine his accuser, and get access to investigator’s notes and conclusions that could support his case, it was denied. Now imagine if this happened in a criminal case. Imagine if a detectives notes and conclusions saying the accuser was not credible were concealed. There would be a mistrial or the case would be dropped.

The Elliott case should have been investigated more thoroughly by local law enforcement. I believe prosecutors dropped the ball just because the accuser was caught in a lie on one occasion. In my opinion, it’s not that far-fetched that in general a young lady in an allegedly abusive relationship who said she comes from a family where domestic abuse was also concealed, may lie for whatever emotional or psychological place that may come from. However, that doesn’t mean she’s not a victim when she has alleged months of abusive incidents supported by photos and texts.

On the other hand, just because the system may have failed her, doesn’t mean it’s appropriate for the NFL to become the law.

Rapists go free all the time because victims are too ashamed or traumatized to go to the hospital and get a rape kit to preserve the evidence. This is a travesty. But, is that next? Will the NFL be investigating and prosecuting and punishing alleged rapists when the evidence doesn't support a criminal trial?

The NFL lists all of the crimes it plans to investigate if law enforcement fails to convict someone in its PCP. Notably it will investigate burglaries, robberies, assault, battery, stalking, child abuse and of course there’s a catchall that allows its investigators to investigate anything they want: “Conduct that undermines or puts at risk the integrity of the NFL, NFL clubs, or NFL personnel.” (Hmmm sounds a lot like conduct detrimental to the league).

These are dangerous waters. Why? Because when you prosecute, there’s a chance of a wrongful conviction. Wrongful convictions ruin lives.

Is the NFL really equipped to investigate, prosecute and punish off-the-field crimes?

And if you answer yes, then the question becomes, should the accused have access to the same safeguards it would have in a court of law? If you answer yes, then Ezekiel Elliott’s arbitration was unfair. You cannot step into law enforcement’s shoes, create a mini criminal justice system, convict someone of domestic violence when he hasn’t been arrested or charged , do so in a high-profile venue like the NFL and not ruin someone’s reputation and earning potential.

Whether Elliott deserves this or not really isn’t the question here. The question is, if the verdict the NFL delivers has the potential to keep him off-the-field and tarnish his reputation (labeling him a domestic abuser), then shouldn’t he at least have the same rights any criminal defendant would have? Shouldn’t he be allowed access to “exculpatory evidence” (evidence that can prove his innocence)? Shouldn’t he be allowed to cross-examine his accuser? And shouldn’t he be allowed to challenge such a high stakes decision in a court of law if the criminal prosecution is unfair, just like a criminal defendant can appeal a conviction before a jury of his peers? And should the standard be, beyond a reasonable doubt?

This is why the NFLPA is fighting so hard. It wasn't even permitted to present the evidence that could place that "doubt" in the minds of the decision makers, because the investigator's doubts over the accuser's credibility were concealed. Article 46 of the CBA even says a player may present all relevant evidence at the arbitration. How can relevant evidence be presented if it is concealed from the player? Whether Goodell agreed with investigator Friel (who felt the accuser was credible) or investigator Roberts (who felt she was not) is not relevant. This fight is over a player's right to have an opportunity to present a full defense when he is being accused of a crime by the NFL.

If you want to be judge, jury and executioner than don’t hide behind an arbitration.

Arbitrations are meant for civil cases, not criminal cases. It is shocking to me that this argument is not at the forefront of the Elliott case. The lawyers and Judges are so wrapped up in arguing the nuances of archaic laws that they have ignored the most glaring issue in this case and that is this: is it appropriate to use an arbitration to enforce a criminal conviction by a private corporation?

This is not a workplace investigation. This is a workplace, investigating a private matter. You will be hard pressed to find any private employer punishing an employee for a personal matter absent a criminal conviction. In fact, employers can be sued for firing or suspending employees who are accused of a crime outside the workplace, but neither arrested nor charged for it.

In the Elliott case the whole legal fight has centered around "fundamental fairness." Should the CBA rule all? Or should it be examined by courts to see if its procedures are fundamentally fair? The NFLPA is arguing that the arbitration wasn’t fair and the NFL is arguing that the fairness standard doesn’t apply to the CBA.

This week a District Judge in NY agreed with the NFL that the court shouldn’t even review this case for fairness because courts shouldn’t disturb arbitrations except in very limited circumstances. She said it could disrupt the purpose of arbitration which is: to help settle workplace disputes outside of court. Her opinion departed from the opinion of five other Judges, who all felt the arbitration needed to be reviewed to see if it was fair due to the nature of the matter. Three of those Judges said there was serious misconduct and significant issues bearing upon fairness here.

But not one of the six Judges mentioned the distinction between fairness in a civil workplace matter and fairness in a criminal matter. None of the six Judges looked beyond the veil to see that arbitrations are meant for the resolution of civil, workplace disputes and this is a circumstance where an arbitration is being used to protect the creation and operation of a criminal justice system within a private corporation. A criminal justice system that is doing more than just suspending, but in fact convicting someone of domestic abuse in a public forum.

When an arbitration is being used for a criminal matter, it should require a standard of fundamental fairness so that courts can review a decision that may be procedurally unfair. If the 2nd Circuit does not step in, the precedent the District Court is setting could allow other private employers to adjudge the private actions of their employees and hide behind arbitration clauses. It could allow other employers to say, just like the NFL does in its PCP, that your Fifth Amendment right not to testify and to avoid self-incrimination does not apply here because we are a workplace, but we may convict you.

Elliott's case is so controversial because we haven't seen anything like it. With Ray Rice, the evidence was caught on tape. We saw the sucker punch. Adrian Peterson was not only indicted for child abuse but took a plea deal on the charges. Greg Hardy was arrested, charged and convicted by a Judge. His case was later dropped only because the victim disappeared amid rumors of a civil settlement. Elliott's case never entered the criminal justice realm, until the NFL stepped in.

Elliott may be a domestic abuser deserving of punishment, he also may not be. But almost everyone feels a little uneasy about whether it’s the NFL’s place to decide. And, at the very least, if the NFL is going to go there and the NFLPA is going to be dumb enough to agree to it, then people just want to see a fair trial, just like our Constitution guarantees.

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