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Why Ezekiel Elliott Is Gonna Play Out This Season

October 19, 2017

 

Suspension on, suspension off, suspension on, suspension off - that's been the crazy timeline in a domestic violence disciplinary process that has rocked football and our court system.  Being that Ezekiel Elliott's guilt or innocence is not being judged in a case that's become about whether the NFL's arbitration process is fair, football fans, and especially those fantasy fans all appear to just wanna know two things, 1. is Zeke playing? 2. How long?

The stars have aligned for Zeke in this crazy legal process. He miraculously got his suspension put on hold with an "injunction" (legal term for hold - see ya learned something) after his legal team filed in Texas before the arbitration process was even finished. The court of appeals fixed that by vacating that hold because it decided the team filed too early and suspension was back on. As Zeke's legal team scrambled to get another hold in a NY court, it just happened to be a bye week - lucky for Zeke cause it bought them time to file motion papers and about 111 exhibits (thousands of pages) in a NY court.

Just so happens that the Judge assigned to the NY case was on vacation and the stand in Judge felt uncomfortable stepping on the other Judge's toes and making a full ruling on the NFLPA's request to put the suspension on hold. So, what did he do? He granted Zeke a temporary restraining order, putting suspension on hold for two weeks until the vacationing Judge returns (presumably all relaxed and tan). There will be a hearing on October 30th where the assigned Judge (a she named Kat - the Honorable) will decide whether to extend that hold until the case is heard and decided. If she says yes then it pretty much means he will play out the rest of this season. Why? Because there will be a discovery process, hearings, motions, potential trial and testimony which can take months and if not, then the NFLPA will easily use legal maneuvers to delay this through end of season.

If you came to this site to get my expert opinion, here it is: there's no need to wait until October 30th to find out if he's gonna get that permanent injunction- he will.  This means he will definitely play out this season. How do I know? Because the subbing Judge paved the way for that very result in two ways. 

First, the Judge who issued the temporary hold wrote in his opinion that Zeke met the standard for a temporary restraining order and then said that the standard is exactly the same for a permanent hold.  The standard is quite simply the Judge asking himself this: If I don't put a hold on this suspension, will Zeke suffer irreparable harm (harm that can't be fixed through monetary compensation) and if I do grant the hold, will the NFL suffer irreparable harm?

The Judge decided that Zeke would be harmed if he didn't stop the suspension because it would allow discipline before the court could decide if the NFL's arbitration process was fair.  Judge said, the case hasn't been heard and there were sufficient and significant questions about the fairness of the League's arbitration process. If you've been following this case you know why, 1. there's evidence that league executives tried to hide its lead investigator's conclusion that Zeke shouldn't be suspended, 2. Zeke couldn't cross-examine his own accuser because she wasn't required to testify and 3. Neither was league commissioner Roger Goodell. So the Judge is saying, there's a legit case here and it needs to be heard by a court of law. 

The Judge decided Zeke would be harmed because he could never get the games back that he missed. He would miss out on individual achievements, team achievements, rushing yards (which could impact his title as League's leading rusher) and maybe even qualifying for the ProBowl. Further, the team would suffer as a result of him not playing. On the flip side, the Judge felt the NFL would not be harmed if he put a hold on Zeke's suspension because he could be suspended again at a future date if NFLPA loses the case. The NFL made a big mistake early in the process in Texas when it tried to appease a Judge (Amos Mazzant) and agreed to let Zeke play in the Giants game until the Judge issued a ruling. Well that concession sent a message that him playing while the court process played out wasn't a big deal to the NFL. Furthermore, he has been playing since the beginning of the season and the NFL hasn't been harmed. The NFL claimed it's harmed on the public perception front because it can't enforce its domestic violence policy, but the Judge didn't buy into that argument since it can be enforced with a future suspension. 

Next, and this is big...The Judge said in his opinion (as a wink wink to the other Judge) that the standard for a temporary restraining order is the same as a permanent injunction (which is true). Meaning this Judge is basically saying to the returning Judge, something like this, "well, if it were me I would grant it long term cause I already decided he met the standard."  Judges like to respect each other, especially ones that are colleagues in the same courthouse. So the vacationing Judge will likely grant the permanent injunction. Even more important, the stand-in Judge put another layer of protection for Zeke by citing the Brady case as precedent for the fact that NY district courts recognize that athletes who miss games will suffer irreparable harm because they basically can never get back that opportunity to achieve in that game and it affects their entire career and legacy.  It's not a loss that money can fix. This means he's saying to the returning Judge and even the appellate Judges, something like this, "listen, this is an established standard here...an athlete who has games on the line shouldn't be suspended until the case is heard when there's a there there."  This takes the case beyond Zeke and means any future player who wants to challenge a league arbitration in NY can now more easily get a permanent injunction until the case is heard and decided, so long as there's a legitimate challenge to the arbitration process itself.  No more preemptive suspensions by the NFL when a league decision is challenged in a court of law. Now suspensions should only take hold after the case is heard and if the NFL wins because the court decides the arbitration process complied with the CBA. This puts a big magnifying glass on the league and its arbitration process and provides a nice check on its arbitrators to make sure the process is legit or face a lengthy court review and a stop on the suspension. 

Finally, if you're wondering, what if the vacationing judge grants the permanent hold but then the NFL appeals like it did in Texas... I would tell you don't worry. In Texas, the court only overturned the hold because the NFLPA filed too early, before the NFL arbitrator issued his final decision. Here, if the NY court finds there is irreparable harm, a appeals court would rarely overturn it.  It's clear that Zeke has a lot to lose if he's suspended and NFL's arguments on them being harmed are weak. Plus courts rarely overturn injunctions - the standard is usually that the lower court "abused its discretion" and trust me when I tell you we don't have that here. An appeals court also wouldn't want to interfere with precedent since Brady II justified irreparable harm showing on the same reasoning that Zeke got his. Put simply, NFL lucked out and had the Texas injunction overturned on a technicality, and that's not what we would have if the court gives him the permanent injunction on Oct. 30. 

Lastly, there are some questions about what if Zeke settles and accepts a shortened suspension? I can tell you that from the outset I was told by sources close to the case that he will not accept even one game and he wants to clear his name. Now there are rumors that there are settlement talks, and I'm hearing from my sources that those rumors are not in the least bit true. Odds are: Zeke plays this season and you can take that to the bank. 

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