Ezekiel Elliot remains suspended

[MKnight82]

3 hours ago, DalCowboyzRule said:

Nope. Suspension specifically stated "6 REGULAR SEASON games". And if the NFL wants to suspend him for the playoffs, Zeke and his team have a pretty good case against that too since it's in writing.

 

https://www.cbssports.com/nfl/news/nfl-ezekiel-elliott-suspension-would-not-exclude-playoff-games-super-bowl/ 

The argument Elliott's case will likely make is that in the letter to Elliott announcing the suspension, the NFL used the phrase "regular-season games." According to CBS Sports Radio legal analyst Amy Dash, Elliott's team would fight any suspension that carried over into the playoffs. 

It may be another uphill battle for Elliott -- during the Tom Brady case, and previously in the Elliott case, it has been widely assumed that appealing a case like this runs the risk of missing playoff games. 

Cowboys owner Jerry Jones acknowledged during a radio interview on 105.3 the Fan, a CBS Sports Radio station, on Friday that the suspension would likely carry over into the playoffs. 

"I would suspect that the NFL will take the stance that it's six games, no matter which games it is," Jones said.

[Phire]

38 minutes ago, BigD88 said:

Sure.

But you know who else is on the other end of a whole lot of allegations that have shown to be unsubstantiated?

 

Ezekiel Elliott.

Sure. I agree to that. But that's irrelevant to my point. Many people are accepting the NFLPA's unsubstantiated allegations as true. Everybody needs to be critical of both the NFLPA and the NFL. That's just the nature of litigation.

[BigD88]

10 minutes ago, Phire said:

Sure. I agree to that. But that's irrelevant to my point. Many people are accepting the NFLPA's unsubstantiated allegations as true. Everybody needs to be critical of both the NFLPA and the NFL. That's just the nature of litigation.

Agreed.

And it would be a whole lot easier, and better, for every single party involved if the NFL just stayed out of this entire mess.

They have yet to get a single one of these right.  They cover-up video evidence by a prominent runningback, get caught, can't do anything because of double jeopardy and take a massive PR hit.  Then they cover up transgressions from a freaking kicker and slap a joke suspension on him, get caught, and take another hit. 

Then they over-correct and dig their heels on the least concrete case to date where there is legitimate doubt as to guilt or innocence (not implying innocence... Just saying we legitimately don't know, and reasonable minds can lean either way) and have everyone throwing their arms up in the air in frustration every 72 hours when a new ruling is issued in court.  Why?  Because THIS case is the one the NFL chose to make a public spectacle of to try and tell us all how morally against and "tough" on domestic violence they are.

It's a complete disaster and Roger Goodell should honestly be embarrassed (I know, he's not because everyone is just making so much $$$ anyway).  But control over player discipline is his personal crusade and it's a complete clown show.

[Matts4313]

1 hour ago, Phire said:

That statement by the Court has more weight than anything you or I can possibly endeavor to say.

Am I to understand that what you are saying is that you dont know of any unsubstantiated facts personally, but a judge said they are there so you are taking her word? 

[Phire]

1 minute ago, BigD88 said:

It's a complete disaster and Roger Goodell should honestly be embarrassed (I know, he's not because everyone is just making so much $$$ anyway).  But control over player discipline is his personal crusade and it's a complete clown show.

Let's just call it what it is: the NFL are amateurs. And to be honest, they might not even be completely at fault. There was/is public pressure over the NFL not disciplining its players in certain cases (and over-punishing in others, to be certain). It caused them to step up to the plate. The NFL isn't equipped to conduct investigations; yet, they sort of have to. It just seems a lot like they're feeling their way through a dark room and bumping into things.

With that being said, the CBA is what it is, and it's allowing the NFL to stumble through a dark room. That's pretty much the NFLPA's theory, that the NFL stumbling through the dark room on this stuff has amounted to fundamental unfairness. They also argued that someone shut the lights off on purpose, i.e. the conspiracy allegations, but as stated previously, those allegations seem to be unsubstantiated at the moment.

[Phire]

Just now, Matts4313 said:

Am I to understand that what you are saying is that you dont know of any unsubstantiated facts personally, but a judge said they are there so you are taking her word? 

Are you being serious right now?

[Matts4313]

1 hour ago, Phire said:

Are you being serious right now?

Unless I have missed it - the judge said "this is a bunch of poop", but hasnt actually described which aspects, or what specifically, is poop. Im just asking if there is anything to directly refute the NFLPA (or all the witnesses) 'facts'. 

[cp0k2]

10 minutes ago, Matts4313 said:

Unless I have missed it - the judge said "this is a bunch of poop", but hasnt actually described which aspects, or what specifically, is poop. Im just asking if there is anything to directly refute the NFLPA (or all the witnesses) 'facts'. 

Allegations aren't facts though. And the judge's job is to weigh the merits of the allegations. This is how we get into "alternative facts" and nonsense like that.

[Thomas5737]

1 hour ago, Phire said:

Let's just call it what it is: the NFL are amateurs. And to be honest, they might not even be completely at fault. There was/is public pressure over the NFL not disciplining its players in certain cases (and over-punishing in others, to be certain). It caused them to step up to the plate. The NFL isn't equipped to conduct investigations; yet, they sort of have to. It just seems a lot like they're feeling their way through a dark room and bumping into things.

With that being said, the CBA is what it is, and it's allowing the NFL to stumble through a dark room. That's pretty much the NFLPA's theory, that the NFL stumbling through the dark room on this stuff has amounted to fundamental unfairness. They also argued that someone shut the lights off on purpose, i.e. the conspiracy allegations, but as stated previously, those allegations seem to be unsubstantiated at the moment.

All employers conduct investigations, that isn't out of the ordinary. What is out of the ordinary is conducting a criminal investigation instead of an internal investigation. There were probably enough flags to suspend Elliott a game or two for conduct detrimental to the league but to go ahead and suspend him 6 games for a DV case where he wasn't found guilty they would have to do their own investigation of a criminal charge which is out of their realm even if they brought in criminal investigators. There is a reason why criminal investigators don't also do the sentencing, which is what it seems the NFL asked them to do here.

[Phire]

17 minutes ago, Matts4313 said:

Unless I have missed it - the judge said "this is a bunch of poop", but hasnt actually described which aspects, or what specifically, is poop. Im just asking if there is anything to directly refute the NFLPA (or all the witnesses) 'facts'. 

You asked me to back up where the NFLPA "lied" (your words). For the record, I didn't say they lied. Litigants allege things all the time that they hope to prove through discovery, but end up not being able to substantiate. I delivered to you the most authoritative document that exists in the universe: Judge Failla outright saying that a "bulk" of the NFLPA's allegations of nefarious conduct on the part of the NFL were unsubstantiated by the record. 

So now that you've moved the goal posts slightly, and want specifics, I'll still entertain you. In fact, I've already pointed to various instances of NFLPA allegations that ultimately haven't been borne out of the record. And again, just so it's clear, the judge has better access to the record than I do, so I can only speak to these things as I've been able to independently confirm.

1. There were conspiratorial allegations that people in the NFL actively kept Goodell in the dark. As far as I am aware, the NFLPA never found any actual evidence of this. Judge Failla referred to this as an unsubstantiated conspiracy referenced by the NFLPA.
2. There were allegations of various conflicts of interest. Again, nothing came of these, as far as I am aware. Judge Failla also referred to this as one of the unsubstantiated claims by the NFLPA.
3. What prompted Judge Failla to include that footnote about the unsubstantiated allegations was on page 7 of her opinion. One of the NFLPA's allegations, and many people still believe this, is that Kia Roberts was blocked from communicating ANY of her concerns. This is where Judge Failla specifically wrote: "Significantly, however, [Roberts] stated that any concerns, any inconsistencies were completely put into the NFL's report, and that she shared her concerns with [Lisa] Friel, and other NFL investigators, including her superior, Cathy Lanier." 

So let's take an analogy. I allege that Matts is mean to kittens.

1. At this point, it should be my burden to bring forth evidence that Matts is actually mean to kittens (NFLPA should bring forth evidence).
2. Instead, and this is what you're doing, you're jumping ahead and saying well, what evidence is there that Matts isn't mean to kittens? (What evidence does NFL have refuting NFLPA allegations?) 

Sometimes, simply, there is no evidence refuting an allegation. The NFLPA alleged many things that they weren't able to prove. You're demanding that I point to something that doesn't exist. You should be demanding that the NFLPA point to something that substantiates their claims.

[fretgod99]

4 hours ago, BigD88 said:

Sure.

But you know who else is on the other end of a whole lot of allegations that have shown to be unsubstantiated?

 

Ezekiel Elliott.

The claims against Elliott aren't unsubstantiated. They may (certainly are) not be supported by sufficient evidence to prove they occurred beyond a reasonable doubt, but that doesn't mean they are unsubstantiated.

[Dan_Bali]

Just take the 6 games and GTF over it.

Dallas can still make the wild card game and Zeke will be back for it.

Job done, problem solved.

[jrry32]

6 hours ago, Phire said:

1. Did you read my post?
2. Did you see that I quoted the court order?
3. Do you agree the Court has more information than I do?
4. Do you agree the Court heard testimony?
5. Do you agree the Court is better equipped to make such determinations?
6. Do you agree the Court is fully informed?
7. Do you agree the Court was able to fully hear the arguments and evidence submitted by both sides?
8. Do you agree that, in our society, it's part of the Court's job to determine, to a degree, and in non-jury proceedings, what is true and what is false?

Great, this is DIRECTLY from that Court:

"The NFLPA's submissions are replete with references to intra-league conspiracies, conflicts of interest, and inconsistent (if not false) statements on the part of certain NFL personnel. The Court has found that the bulk of these intimations of nefarious conduct are not borne out of the record."

You can find this on page 5 of the opinion, at footnote 3.

To find the full extent of this, you'd have to compare the NFLPA's allegations to the transcript of the proceedings, the various exhibits, the pleadings, etc. One of the falsities is that Kia Roberts' findings were closed off from Goodell. Roberts testified that her concerns were fully put into the report, so that was false. Other allegations such as conspiracy are simply unsupported. I don't know how much more authoritative it can get than the Court's findings here.

That statement by the Court has more weight than anything you or I can possibly endeavor to say.

And here's what a different federal judge had to say:

Quote

 

While it is a narrow exception and rare circumstance which a court interferes with an arbitral award, this case presents unique and egregious facts, necessitating court intervention. Courts should use this exception in extreme circumstances and should perform the analysis on a case-by-case basis. Thus, even though the Court is not deciding whether the NFL engaged in a conspiracy to achieve a certain result, the actions of the NFL have to be considered in the Court's analysis of whether Henderson gave Elliott a fundamentally fair hearing. The Court recognizes and acknowledges that under ordinary circumstances, the denial of witnesses and documentary evidence falls within the discretion of the arbitrator. Brady II, 820 F.3d at 545 (citing United Paperworkers, 484 U.S. at 40, 108 S.Ct. 364); Am. Eagle Airlines, Inc., 343 F.3d at 405. However, the set of facts presented in this case are everything but ordinary and are such that the denial of key witnesses and documents amounts to serious misconduct by the arbitrator.

In this case, two individuals, Roberts and Friel, were assigned to investigate the allegations of domestic violence lodged against Elliott. Roberts's role in the investigation involved speaking with various witnesses, including interviewing the accuser and accused, Thompson and Elliott, along with reviewing some of the documentary evidence in this case, and helping create the Elliott Report. See, e.g., Dkt. # 2, Exhibit 13 at 134:18–135:15, 145:9–13, 150:20–151:5 (Aug. 29, 2017); Dkt. # 1, Exhibit 47 and 48 at pp. 78–159. Notably, Roberts described herself as a “grunt” and “the boots on the ground in the investigation.” (Dkt. # 2, Exhibit 13 at 135:1–5 (Aug. 29, 2017)). Roberts interviewed Thompson two times and followed up on the phone with Thompson four times. (Dkt. # 2, Exhibit 13 at 140:10–12 (Aug. 29, 2017)). Conversely, Roberts claims that Friel took more of a supervisory role in the investigation (Dkt. # 2, Exhibit 13 at 135:1–2 (Aug. 29, 2017)). Friel states that she interviewed two doctors and Elliott. (Dkt. # 2, Exhibit 13 at 261:3–4, 10–13 (Aug. 30, 2017)). However, Friel admits she never interviewed Thompson. (Dkt. # 2, Exhibit 13 at 261:17–19 (Aug. 30, 2017)).

At the end of the investigation, Roberts and Friel compiled the Elliott Report, which contained all facts obtained during the investigation. By the end of the investigation, Roberts and Friel each developed an opinion on the evidence and on the credibility of the witnesses, including Thompson and Elliott. Roberts concluded that insufficient evidence existed to corroborate Thompson's allegations and that Thompson was not a credible witness. (Dkt. # 2, Exhibit 13 at 143:5–8, 172:21–24, 173:9–22, 175:4–19 (Aug. 29, 2017); Dkt. # 2, Exhibit 13 at 301:23–302:4 (Aug. 30, 2017)). Roberts communicated this opinion to Friel. (Dkt. # 2, Exhibit 13 at 301:23–302:4 (Aug. 30, 2017)). Friel, on the other hand, concluded that sufficient evidence existed to corroborate all of Thompson's allegations except one specific incident. (Dkt. # 2, Exhibit 13 at 289:7–298:23 (Aug. 30, 2017)).

While the PCP allows the investigators to include in the report a disciplinary recommendation for Commissioner Goodell's consideration, the NFL made an unusual departure from what it had done in past investigations and did not include recommendations from either investigator.8 (Dkt. # 2, Exhibit 13 at 136:22–137:10 (Aug. 29, 2017)). Friel, along with counsel, made the joint decision to exclude recommendations from the Elliott Report in this case. (Dkt. # 2, Exhibit 13 at 265:15–25 (Aug. 30, 2017)). However, as the remainder of the events will demonstrate, the only opinion that Friel, along with counsel, sufficiently excluded was Roberts's opinion.

*9 After Commissioner Goodell received the Elliott Report, he met with certain NFL personnel, including Friel. It was at this time that Friel was given the opportunity to share her opinions and recommendations on the case and the credibility of the witnesses. Interestingly, Roberts was not invited to attend this meeting. While Friel expressed her opinions and conclusions at this meeting, the Court is less than convinced that the same can be said for Roberts's opinions.9 As such, not only were Roberts's recommendations excluded from the report, they were also kept from Commissioner Goodell and his advisors. (Dkt. # 2, Exhibit 13 at 322:13–338:22 (Aug. 30, 2017)).

Consistent with its previous actions to suppress Roberts's dissenting opinions, the NFL kept this sequence of events from the NFLPA and Elliott until the arbitration hearing. In fact, had the NFL succeeded in its overall goal, this sequence of events would still be concealed from Elliott and the NFLPA. The NFLPA filed a motion to compel the testimony of Roberts, and the NFL argued in response that her testimony was unnecessary, consistent with Friel's testimony, and cumulative. (Dkt. # 1, Exhibit 58). Luckily, the NFLPA found the fairness needle in the unfairness haystack and Henderson ordered Roberts to testify. The arbitration record shows that Roberts's testimony was everything but unnecessary, consistent, and cumulative.

The NFL's actions demonstrate that from the very beginning of the decision-making process, a cloud of fundamental unfairness followed Elliott. Unfortunately, this cloud followed Elliott into the arbitration proceedings. The arbitration record shows that the NFL, at the very least, turned a blind eye to Roberts's dissenting opinion. This entire set of circumstances was put in front of Henderson. It is in this light the Court views Henderson's decisions to exclude Thompson and Commissioner Goodell as necessary witnesses, as gross errors resulting in a fundamentally unfair hearing.

Henderson's denial of these requests prevented the NFLPA and Elliott from properly presenting their case and meeting their burden of proof. The NFLPA had the burden of convincing the arbitrator that Commissioner Goodell's decision was arbitrary and capricious. Henderson prevented Elliott access to credible evidence necessary to discharge this burden. In this situation, where credibility is questioned and a dissenting opinion regarding the case and the credibility of Thompson are withheld from, at a minimum, the NFLPA and Elliott, the ability to cross-examine Thompson is both material and pertinent. Additionally, in the situation where the evidence that was in front of the Commissioner still remains unclear, it is material and pertinent to question Commissioner Goodell.

*10 The circumstances of this case are unmatched by any case this Court has seen. See generally Brady II, 820 F.3d 527; Nat'l Football League Mgmt. Council v. Nat'l Football League Players ***'n, 125 F.Supp.3d 449 (“Brady I”). In Brady I and Brady II, Tom Brady sought to compel an investigator's notes and testimony from the NFL's general counsel, Jeff Pash. Brady I, 125 F.Supp.3d at 470–71. The Second Circuit ultimately held that the arbitrator's denial of this request was not fundamentally unfair since the evidence was not material and pertinent to the case. Brady II, 820 F.3d at 528

Here, Elliott is accused of engaging in domestic violence against Thompson, an allegation he denies. Further, the NFLPA sought to (1) access to investigators' notes; (2) cross-examine Thompson; and (3) question Commissioner Goodell. Such requests were denied. Unlike Brady I and Brady II, the evidence and testimony precluded is material, pertinent, and critically important to Elliott's case. See general id. Additionally, this case concerns withheld material evidence from the NFLPA and Elliot, and possibly Commissioner Goodell. As such, this case involves essential evidence that was sought and denied resulting in a fundamentally unfair hearing.

Fundamental unfairness is present throughout the entire arbitration process. Due to such fundamental unfairness, the Court's intervention is justified. The NFLPA was not given the opportunity to discharge its burden to show that Goodell's decision was arbitrary and capricious. At every turn, Elliott and the NFLPA were denied the evidence or witnesses needed to meet their burden. Fundamental unfairness infected this case from the beginning, eventually killing any possibility that justice would be served. Accordingly, the Court finds that the NFLPA demonstrated a substantial likelihood of success on the merits.

 

Nat'l Football League Players ***'n v. Nat'l Football League, No. 4:17-CV-00615, 2017 WL 3940545, at *8–10 (E.D. Tex. Sept. 8, 2017), vacated and remanded, No. 17-40936, 2017 WL 4564713 (5th Cir. Oct. 12, 2017).

EDIT: And here's the opinion of another federal judge:

Quote

The NFLPA and Elliott were arguably denied the right to “present, by testimony or otherwise, any evidence relevant to the hearing.” At the hearing, the NFL attempted to keep Roberts, the only investigator to interview all witnesses, from testifying and denied access to the investigative notes and the opportunity to question the accuser. The NFL's arbitrator then denied access to the investigative notes. Four of the interviews with the accuser were not transcribed, but were in those notes. The arbitrator also denied the opportunity to question the accuser, who was the only witness to any alleged domestic violence. After the NFLPA was successful in compelling Roberts' testimony, the NFLPA discovered that Roberts was excluded from meetings with Goodell and outside advisors. The arbitrator then denied the opportunity to question Goodell. The revelation of Roberts' exclusion suggests that Goodell was not fully informed before making his decision about the appropriate punishment. That is important for two reasons: 1) The arbitrator properly gave deference to the commissioner; and 2) all of that is “evidence relevant to the hearing.” Also, as the NFL clearly relied on the accuser's interviews and there were only transcripts of two of those six interviews, the investigative notes likely should have been exchanged.
*10 All of these actions “impugned the integrity of the arbitration process.” See Ramirez-Lebron, 593 F.3d at 132. Thus, the NFL's refusal to follow those agreed upon procedures in the CBA resulted in a repudiation of the grievance procedure sufficient to vest jurisdiction in the district court. Id. at 134. See also Vaca, 386 U.S. at 185, 87 S.Ct. 903; and Rabalais, 566 F.2d at 519.

Nat'l Football League Players ***'n v. Nat'l Football League, No. 17-40936, 2017 WL 4564713, at *9–10 (5th Cir. Oct. 12, 2017) (Graves, J., dissenting).

[Phire]

41 minutes ago, jrry32 said:

And here's what a different federal judge had to say...

None of that has anything to do with what we were discussing. All I did was merely caution that one should not base their factual understandings of the circumstances of a case based on ex parte allegations. There's no way in the world you would disagree with that as an attorney. 

[jrry32]

1 minute ago, Phire said:

None of that has anything to do with what we were discussing. All I did was merely caution that one should not base their factual understandings of the circumstances of a case based on ex parte allegations. There's no way in the world you would disagree with that as an attorney. 

You contested Ruskie's take on the what happened which isn't that different from what the above judges (especially Judge Mazzant) said.