Cowboys fans got a scary development in the Ezekiel Elliott case Monday, just in time for Halloween.
U.S. District Court Judge Katherine Faila declined to grant Elliott’s injunction request in a stunning ruling Monday night. There are a few remaining appeal options, but the sweeping opinion in favor of the NFL makes it likely that Elliott will begin serving his suspension this weekend, and not return until week 15 against Oakland.
On today’s episode of CowboysCast, we’re joined by former Green Bay Packers Vice President Andrew Brandt. Brandt is now a weekly columnist for MMQB, and serves as the director of the Moorad Center for Sports Law at Villanova Law School.
Brandt weighed in on Elliott’s remaining options, and the impact this may have on the CBA.
BB (6:42): Andrew, how are you doing?
AB (6:44): I’m doing well, Bobby. Good to be with you.
BB (6:46): Absolutely, thank you so much for joining us again. You know, we spoke in August, and I want to quote to you what you had said last time we spoke. You told me, “The precedent is not good for Elliott. Through all the twists and turns of Tom Brady, the precedent is now pretty strong in favor of the Commissioner. You had the 2nd Circuit Court of Appeals, the 2nd-highest court in the land, saying, ‘no, the Commissioner has the right to do this. He has the power.’” Is that, basically, what this has come down to?
AB (7:11): Yeah, there’s a reason the NFL filed in New York, even though Elliott and his team were going to Texas, which is now out of the picture. They did the same thing with Tom Brady; they wanted to confirm the suspension. So they knew the NFLPA would shop this around, and go to Texas, so they went to New York, and it’s turned out to be strategically-sound for the NFL. Whether the District Court or not was going to lift the suspension for Elliott or reinstate it, they knew eventually when this gets to the 2nd Circuit they’ll win, because the Brady precedent is so strong. Now they’ve won at an earlier level, at the District Court level, and as we speak Elliott still has some long-shot options, but I think we are where we are. And I’ll just say this, Bobby: we always get back to where we start with these conversations, whether they’re about Adrian Peterson, Tom Brady, Ray Rice, or Ezekiel Elliott. Which is, the CBA. And the CBA grants strong rights to the Commissioner, and judges – I mean, this is basic law 101 – judges defer to arbitrators. These courts are too mucked up to begin with, so they don’t want to get involved in these things that have private arbitration processes, like the NFL and NFLPA agreed to. So it was a long-shot in my mind to begin with for Elliott; yeah he won a couple rounds, he won a couple battles, but he was always going to lose the war.
BB (8:44): I hadn’t spoken to a single attorney who thought Elliott would win the case ultimately. They all thought eventually he was going to have to serve the suspension. But I also hadn’t spoken with anyone who thought that he wasn’t going to get the injunction while it worked its way through the court. Are you a little surprised that the court shut that down?
AB (9:01): I am, actually. Again, I’ve been thinking the NFL was going to win all the way through here, but I sort of expected it to be a Brady repeat. Where Elliott manages, finagles his way to stay on the roster this year, only to have a case next year which would go the NFL’s way, and he would serve his suspension in 2018. Listen, I think a little unlike what you’ve seen, I’ve seen some commentators – some who I respect – that thought Elliott had a real chance in this. I’m not going to name any names, but I think some of it is that’s a better story. That is a better story for the media, for Elliott to win, for Tom Brady to win, but the reality is the law is on the NFL’s side. And I think we have to say something here: Tom Brady, long ago, stopped being about deflated footballs. And for better or worse – and probably worse – Ezekiel Elliott’s case stopped being about domestic violence, and it all became about Commissioner power and the CBA, which the courts have sided on behalf of the league.
BB (10:14): I got a text last night [from] somebody, an attorney within the NFL ranks. Doesn’t represent the NFL, but has dealt with NFL cases before. And he told me Jeffrey Kessler “has to concede, no motion for reconsideration, or go to the 2nd Circuit,” unless, “the opinion’s logic is completely erroneous, which isn’t very likely.” Would you say that’s a fairly accurate summation of where things stand?
AB (10:39): Yeah, I just – you know, my expectation is the union and Kessler will always appeal. Just seems to be their mode of operation, and their constant confrontational tone with the NFL, I’d be surprised if they don’t, I guess. Now, whether that works or not, that’s a long-shot. You have lawyers with appellate backgrounds deeper than mine, but I think they could hang it up and serve the suspension right away, or they could just try to finagle some more time, but this is happening to Elliott.
BB (11:16): In terms of those next steps, let’s talk about it. You said the NFLPA is going to want to keep fighting, Zeke will probably want to keep fighting. You were Vice President of the Packers: looking at it from that front office perspective, does it make much sense to continue this lawsuit if he has to serve the games anyway? I mean, if you’re in Dallas’ front office right now, are you telling Zeke, “Just take the games, drop the case, let’s move forward?”
AB (11:39): That’s a tricky situation, because you are technically on the side of the league, and I know that we’ve heard about the Cowboys siding with Elliott. I mean, listen: you look at the football side of it, they see the Eagles running away, you wonder how much can they stay in the race with or even without Elliott, and that’s got to be a question. But from a front office perspective you’ve got to prepare either way. I think I heard on the game the other day that McFadden has been basically kept around, on the inactive list, waiting for this to happen.
BB (12:19): Yeah, he hasn’t had any touches this year after finishing fourth in the NFL in rushing in 2015, with the thought being that maybe they would hold onto him here for this. Last question: you mention that this has become about the CBA and the power that Goodell has, so are we headed definitively at this point for a strike at the expiration of the CBA?
AB (12:42): I think it’s way too early to talk about that. The problem for the NFLPA is everyone can say, “yeah, they’ve got to change that Commissioner power, they’ve got to change that part of the CBA.” But to me it’s like, “OK, what are you giving up?” To me, you add it to the list of things the NFLPA would like to change, without a lot of ammunition to change it. You can talk about strike, but…strike? Really? You’re going to strike in March when the CBA is up, [there aren’t] games until September, players are going to start wondering what’s going on. So I think that’s an uphill battle too.