By Michael Hurley, CBS Boston
BOSTON (CBS) — For the third straight summer, the biggest story heading into the start of the football season involves an off-field fight between a marquee franchise’s star player and the commissioner. This time, though, the charges are of a much more serious nature than alleged ball deflation, and this time, both the NFL and NFLPA have experience in how they want to traverse the roads that lie ahead.
And it appears, despite Tom Brady ultimately losing his fight and having to serve his four-game suspension, the NFLPA is taking Ezekiel Elliott on the same path when it comes to devising a strategy to avoid having to serve a six-game suspension.
As with any fight between the union and the league over player discipline, predicting an outcome remains nearly impossible. But the smart money is all on Roger Goodell and the NFL.
Despite the uphill climb, Elliott will have noted NFL antagonist Jeffrey Kessler serving as his attorney for the appeal hearing at league headquarters on Tuesday. Anyone who read the transcript from Brady’s 10-plus-hour hearing on Park Avenue saw that Kessler argued brilliantly, albeit to no avail because Goodell himself was serving as the “independent” arbitrator. This time, Kessler might have a better chance of success in front of “neutral” arbitrator Harold Henderson, but Henderson’s long history with the NFL makes such success unlikely for Kessler and the NFLPA.
(As an aside, it can’t go without mentioning that not only does Henderson appear to have some level of a conflict of interest with the NFL, but he also seems to have one with Cowboys owner Jerry Jones. This week, Jones said that Henderson “is a really great friend of mine. He was at my [Hall of Fame induction] party, and so you weren’t at that party unless you were a good friend, I promise you that.” The concept of a “neutral” or “impartial” arbitrator remains an imaginary concept in the NFL.)
But really, the hiring of Kessler does not seem to be an effort by the union to win the appeal with the league. Instead, it appears as though the union is once again ready and prepared to take the fight to the court system if and when the league’s six-game suspension is upheld by Henderson. It’s generally believed that the easiest way for a player to have a suspension reduced is to show contrition and apologize for tarnishing the shield in some way. The hiring of Kessler — and, really, the response from the Elliott camp ever since the suspension was announced — would seem to indicate that no such apologies are forthcoming.
From a football standpoint, one would believe that such a plan of attack would at least free up the possibility of Elliott receiving a stay of suspension while the case is made at a federal court. One would imagine that, considering the NFL season begins next week, a stay would be necessary, as not enough time exists for the court to hear the case. With Brady, Kessler ultimately argued so persuasively in front of Judge Richard Berman that the suspension was overturned prior to the start of the season, but that process began at the end of July, as opposed to the end of August. (Kessler’s argument in front of the the three Second Circuit judges, however, did fall flat, which led to the suspension being reinstated.)
Given the lack of precedence on a case exactly like this one, it’s difficult to foresee if indeed Kessler and the union can find a way for Elliott to continue playing while he exhausts all appeal options. If he is able, it remains possible that Elliott manages to play through the season, perhaps with a court case scheduled for after the season. Though at this point, that’s just speculation.
A key difference in the years-long Brady fight and this one is the subject matter. Certainly, men and women who have dedicated their lives to understanding and upholding the law would not consider alleged ball deflation to be a matter of great significance. Domestic violence and the implications of such accusations in a workplace, however, have a bit of a better place in a court of law.
And in that regard, the NFL’s own spotty enforcement of its own policy will certainly be a point of attack for Kessler and the NFLPA. It was just last year that the NFL tried to sneak a one-game suspension of Giants kicker Josh Brown under the radar in a case of domestic abuse in which the league knew much more factual information in the case at hand. That punishment was handed down long after the NFL initiated an automatic six-game suspension for any first-time domestic violence offenders, and Goodell and the league never provided any explanation for the greatly diluted punishment. It wasn’t until the public responded with these questions that Goodell extemporaneously placed Brown on the commissioner’s exempt list.
As of January, only two of 18 players “publicly linked to domestic violence allegations” received the “mandatory” six-game suspension. That list of players includes nine players who were actually suspended for domestic violence; again, only two were issued the “mandatory” six-game ban. Elliott would make No. 3. Surely, such an inconsistent method of punishment would open itself up to critiques from Kessler, particularly in the Elliott case, where no formal charges were filed. (Of course, a lack of charges does not necessarily mean a lack of offense. That is one of the many intricate issues involved with the NFL policing such situations.)
Given that we’re comparing the two strategical game plans, it’s worth stating the obvious by noting that Brady also wasn’t charged with any crime, and yet the suspension was eventually upheld in court.
For the short term, Elliott shouldn’t expect any success in arguing at the NFL level. “Winning” that appeal generally has to do with whether or not the NFL believes you. Once the league has doubts, there is no making up ground.
In the courts, Elliott’s climb may still be steep. Two of the three three judges at the Second Circuit Court of Appeals in New York showed very little concern or empathy for NFL players who took issue with a Goodell-imposed sanction, and so they bolstered his powers to essentially discipline players however he sees fit.
Could that all change now, considering that domestic violence is a much more serious matter and is one the NFL has fumbled time and time again on a grand scale? Sure. It is possible.
But as we learned in Tom Brady’s long fight, it doesn’t matter what kind of resources and time the union has on its hands. Fighting the NFL was an uphill climb then, and the addition of a Second Circuit ruling that bolsters Goodell’s power to act with broad authority only makes that fight more difficult.