The contentiousness between the NFL and the players’ union continues to escalate over Dallas Cowboys running back Ezekiel Elliott’s challenge of his six-game suspension under the personal conduct policy.
With the case now in federal court in Texas as well as before a league-appointed arbitrator, a top NFL official Friday was sharply critical of language used by an attorney for the NFL Players Association during Elliott’s appeal hearing this week in front of arbitrator Harold Henderson.
“The union has single-handedly turned back the clock and trampled on the rights of victims by saying it’s okay to commit violence against women as long as you’re provoked,” Joe Lockhart, the NFL’s executive vice president of communications and public affairs, said by phone Friday.
Lockhart was referring to statements made by Jeffrey Kessler, an attorney for the NFLPA, during the appeal hearing, the transcript of which became public with the union’s court filing. Kessler was speaking about the woman who accused Elliott of domestic violence last year.
“Finally, while it’s our position that you must reverse this discipline in its entirety, I can’t help but note that the Commissioner did not explain in his letter why he did not find any mitigating circumstances in this case,” Kessler said, according to the transcript. “Okay? He didn’t find any aggravating, but he doesn’t explain why there are no mitigating circumstances. Even if one were to conclude improperly that there were credible evidence that some act occurred that would violate the Policy, it is clear, given the extortionate threats given by [Elliott’s accuser], her harassing nature, her violative nature, her drug and alcohol abuse, her penchant for rough sex, there certainly would have been provocation involved that would be a mitigating factor for two young people like this.
“Now, we’re not asking you to do that. We’re asking you to overturn it all because there’s no credible evidence, but it’s hard to see how the full six games would be warranted even if you believed everything said, which you can’t possibly do.”
The union declined to respond directly to Lockhart’s comment.
The NFLPA was critical of the league in a written statement earlier Friday announcing its court filing.
“Arbitrary decision-making and internal inconsistencies continue to plague the most senior level of management of the League,” the union said in Friday’s written statement. “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.”
The latest escalation in tensions surrounding the case comes while the NFLPA and Elliott’s other legal representatives have raised questions, at least in the public conversation, about the investigative and deliberative processes utilized by the league to arrive at its decision to suspend Elliott for six games. Whether that is enough to have Elliott’s suspension overturned or even reduced remains to be seen.
Time is beginning to run short, with the Cowboys’ season scheduled to begin a week from Sunday when they host the New York Giants in Arlington, Texas.
There is much that must play out in the meantime. Henderson, appointed by NFL Commissioner Roger Goodell to hear and resolve Elliott’s appeal of his suspension, must issue his ruling. The NFLPA already has gone to court to seek a temporary restraining order that, if granted, would keep Elliott eligible to play. So it has become a dual-front confrontation in yet another clash between the league and the players’ union over a disciplinary measure.
Henderson is expected by many within the sport to rule by early next week. Elliott would be eligible to play against the Giants if his appeal remains pending. NFL suspensions typically are enforced in a given week only if the player’s status is resolved by the close of business the Tuesday before a Sunday game. Both the league and the union would like to see the appeal resolved quickly. That means a quick turnaround for Henderson, who took about six weeks to issue his ruling in 2015 when he reduced Greg Hardy’s suspension under the personal conduct policy from 10 to four games.
Even with the Hardy ruling, the union has not regarded Henderson as a neutral arbitrator, given that he is a former labor executive for the NFL. The NFLPA reportedly has been operating on the premise that it is not likely to prevail in front of Henderson in the Elliott case. So it has wasted no time going to court, doing so even before the appeal process is completed. The courtroom proceedings are unlikely to move forward until Henderson rules.
The NFLPA’s court filing calls the league’s investigation flawed and the appeals process unfair. It cites the testimony during the appeal hearing of Kia Wright Roberts, the NFL’s director of investigations, who interviewed Elliott’s accuser. Roberts reportedly testified that she would have not recommended disciplinary action against Elliott, and the NFLPA contends that this conclusion by Roberts was kept from Goodell and the four independent advisers consulted by Goodell as he made his disciplinary decision.
“She was prohibited from conveying her views to both Commissioner Roger Goodell and the advisory committee that was paneled to make recommendations to the Commissioner,” the NFLPA said in Friday’s written statement.
“The deliberate exclusion of her recommendations and findings constitutes a failure to follow the NFL’s own Personal Conduct Policy, which the League unilaterally imposed and refused to collectively bargain.”
The league maintains that Goodell was fully aware of Roberts’s conclusion and made his decision based on all the evidence.
“The conclusions were not based on he said, she said,” a person familiar with the league’s investigation said soon after it was completed. “It was an analysis of the evidence.”
The NFLPA also cites Henderson’s denial of the union’s request to have Elliott’s accuser testify at the appeal hearing, which ran from Tuesday until Thursday. Elliott did testify.
There are differences between the NFL’s disciplinary and appeals processes and the criminal justice system. The standard of proof is different under the NFL’s personal conduct policy, closer to a preponderance of the evidence rather than the beyond a reasonable doubt applicable to a criminal case. The personal conduct policy allows Goodell and the NFL to take disciplinary action even if a player is not charged with or convicted of a crime.
Elliott was not charged with a crime by authorities in Columbus, Ohio. But the NFL applied a different standard of evidence, conducted its own investigation and came to a different conclusion.
“We felt very strongly it was important to get this right and be thorough and exhaustive,” the person familiar with the league’s investigation said when it was done.
The system of player discipline and Goodell’s role in it have been major issues for the league and union since the fall of 2014 when the Ray Rice, Hardy and Adrian Peterson cases played out. The league and owners revised the personal conduct policy in December 2014, setting a six-game suspension as the baseline for a first offense of domestic violence. The union decried what it called its lack of input into the revision of the personal conduct policy. The two sides tried but failed to complete a separate deal to modify the player-disciplinary process and Goodell’s authority in it.
Those are issues for the next round of negotiations for a new CBA. For now, there is the Elliott case. The league and union could reach a settlement in this case if they choose. But there are strongly held beliefs on both sides working against that, and they have demonstrated little to no ability or desire in the past to compromise on such matters.
The NFLPA must meet a high bar in court, given that the league and union have a collectively bargained system for player discipline and for the resolution of appeals which gives considerable authority to Goodell. The union won (at the district court level) and then lost (on appeal) in federal court with Tom Brady and Deflategate, as the quarterback remained eligible to play for the New England Patriots’ entire 2015 season but was forced to serve his NFL-imposed suspension for the first four games of last season. That outcome seemed to reaffirm Goodell’s power in player discipline, even if Brady’s suspension was not handed out under the personal conduct policy.
This is a new case, a different player, a different NFL policy, a unique set of circumstances, a different time and a different court. Will the outcome be different this time? It’s about time to begin finding out. Next week promises to be eventful and intriguing, with the clock ticking all the while toward the beginning of the season.
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