As reported by the Fort Worth Star-Telegram and ESPN, Elliott and the NFL players association are asking the court to nullify any suspension, on the grounds that the league employed improper procedures in arriving at the decision to punish him for alleged acts of domestic violence.
“Elliott and the Union were subjected to an arbitration process in which, among other things, there was a League-orchestrated conspiracy by senior NFL executives, including NFL Senior Vice President and Special Counsel for Investigations Lisa Friel, to hide critical information, which would completely exonerate Elliott,” the filing stated.
You can read the NFLPA’s petition here.
On Friday, NFL PR chief Joe Lockhart said Goodell had the whole story in front of him during the investigation.
To which an NFLPA source replied to Breer:
According to the filing, the NFL’s director of investigations, Kia Roberts, testified that following her interviews with the woman who accused Elliott of domestic violence, she recommended to the league that the Dallas player not be suspended. However, Roberts was left off the NFL panel that decided on Elliott’s punishment, and her recommendation was not included in the league’s final report or official letter to him.
“Arbitrary decision-making and internal inconsistencies continue to plague the most senior level of management of the League,” the NFLPA said in a statement released Friday. “This is the latest and best example of the Players’ belief that independent, transparent and collectively bargained policies generate the best systemic results for all parties.”
Roberts was reportedly the only NFL staffer to speak directly with Elliott’s accuser, Tiffany Thompson, a former girlfriend. After a year-long investigation, the NFL decided that “credible evidence” indicated that Elliott inflicted “physical force” on Thompson multiple times in July 2016, but the filing claimed that Roberts herself had concluded that Thompson “was not credible in her allegations of abuse.”
The Star-Telegram cited a league source in reporting that during Elliott’s multiday appeal hearing before Henderson, testimony emerged that Friel barred Roberts from joining the panel but was on it herself, and that Friel recommended to NFL Commissioner Roger Goodell that Elliott be given the six-game suspension.
In its letter to Elliott, the league pointed to an incident during a St. Patrick’s Day parade in Dallas this year, when he pulled down another woman’s shirt and exposed her breast, claiming that reflected the player’s pattern of “poor judgment and behavior.” Noting concerns previously raised by Elliott’s attorneys about the “complaining witness’s credibility,” the NFL said that it had not based its punishment on “one individual’s statements,” but rather “a combination of photographic, medical, testimonial and other evidence.”
Elliott’s lawyers had previously signaled that they would use the league’s appointment of Henderson, a former NFL executive whom they contend cannot be considered impartial, in their expected federal court filing. In addition, they planned on noting his refusal to allow them to question Thompson during the appeal hearing, as well as his decision to bar the introduction of notes and material investigators gathered while interviewing her.
“Not only was Elliott denied the most fundamental rights to be able to confront his accuser and to have her credibility assessed against his, the arbitrator also rendered himself incapable of directly assessing the credibility of Thompson — which was critical to the fairness of the proceeding,” Elliott’s team claimed in the filing (via ESPN).
The attorneys pointed out that Henderson also declined to hear directly from Goodell. “Without testimony from the Commissioner, it was not possible to determine the full impact of the conspiracy, or precisely what the Commissioner knew or did not know about his co-lead investigator’s conclusion that there was not sufficient credible evidence to proceed with any discipline under a League Personal Conduct Policy that requires ‘credible evidence’ to support the charges in a case like this, where the player has been accused of domestic violence, but law enforcement investigated and rightly declined to bring any charges due to conflicting evidence and inconsistent accounts of the alleged events,” the filing stated (via Pro Football Talk).
Henderson is “under pressure” to issue a ruling on the suspension by Monday, according to ESPN’s Adam Schefter. The Star-Telegram noted that if the arbitrator does not make a decision by Tuesday, Elliott could be eligible to take the field for the Cowboys’ Week 1 game against the Giants.
Tom Brady’s Deflategate case, in which he ultimately was made to serve a four-game suspension, established in federal courts that the NFL’s collective bargaining agreement gives the league broad powers to issue player punishments. However, as with Brady, Elliott might be able to play an entire season before his case is resolved, if he and the NFLPA can get the injunction and begin working their way through the court system.
Sports-law analyst Daniel Wallach predicted that the NFLPA would file the complaint before Henderson made his ruling in order to secure favorable home-court advantage, if you will. It seems the union has learned from past experience: Immediately after Goodell upheld Brady’s four-game Deflategate suspension in July 2015, the league filed a lawsuit in U.S. District Court in New York asking that a judge confirm its decision. The union also filed its own petition supporting Brady in what’s seen as a more player-friendly court in Minnesota, but because the NFL got to court first, the case was settled in New York.
“Given the NFL’s past conduct in Deflategate — where it controlled the timing of the release of the arbitration decision and then promptly filed a lawsuit in New York federal court before the NFLPA could react — I would not be surprised if the NFLPA tried to get the jump on the NFL by filing suit in advance of a Henderson ruling,” Wallach wrote Monday. “Such a tactic — no worse than what the NFL did in Deflategate — would allow the NFLPA to secure its preferred forum (e.g., Texas or Ohio) under the ‘first-to-file’ rule for determining the priority of competing federal lawsuits.”
Dan Werly, a sports lawyer, thinks the NFL will ask that the NFLPA’s ruling be disregarded on procedural terms.