Ezekiel Elliott’s suspension and appeal, explained

Ezekiel Elliott’s suspension and appeal, explained

On Aug. 11, the NFL finally announced a six-game suspension for Ezekiel Elliott to start this season, after an investigation spanning more than a year. The suspension stems from domestic violence allegations made against Elliott in July 2016.

A woman who identified herself as Elliott’s ex-girlfriend filed a police report claiming Elliott had been abusive over the course of five days in July 2016. She filed two separate reports with the Columbus Police Department. Witnesses who claimed to have been present did not corroborate her statements, and police and prosecutors decided not to bring charges against Elliott.

Elliott filed an appeal, which was upheld, but it didn’t end there. The NFL and NFLPA were publicly at odds and took their fight to several different courts. In the end, Elliott will serve his full suspension..

Here’s everything that happened.

Why wasn’t Elliott charged?

Elliott’s accuser called police on July 22, 2016 to report a series of violent altercations with Elliott. Police did not arrest or charge Elliott at the time because they couldn’t confirm the woman’s version of the events or whether or not she and Elliott ever lived together. The officers who responded to the 911 call referred her to the Columbus City Attorney’s Office, according to the police report.

The prosecutor determined after reviewing the evidence that the “conflicting and inconsistent information” was not sufficient to charge Elliott. Ohio law also dictates that domestic violence charges can only be brought when a couple lives together, and law enforcement could not confirm Elliott lived with the woman at any point.

After the City Attorney’s Office concluded its investigation, it released all of the evidence collected, including witness statements, copies of text messages, and photographs of Elliott’s accuser’s injuries. Those documents showed that she was not truthful about the events of July 22.

On the night in question, the woman texted her friend who had accompanied her that evening and asked her to lie to police about what had occurred.

“If they ask he dragged me out of my car,” the text read. The friend later texted Elliott’s accuser to ask if she wanted her to lie. The accuser said yes.

The witness statements from that night contradicted her version of events, too. Of the five eyewitnesses who gave statements, including the woman’s friend, none corroborated Elliott’s accuser’s story. All five witnesses said no contact occurred between the woman and Elliott on that night.

The friend also confirmed that the woman had been involved in a physical altercation with another woman at a club earlier in the evening. Elliott told police that the woman’s bruises were the result of that fight.

Columbus prosecutor Robert S. Tobias said in October 2016 that he believed Elliott had been physical with his accuser but that his office didn’t have enough evidence to bring charges.

“For the Ezekiel Elliott matter, I personally believe that there were a series of interactions between Mr. Elliott and (his accuser) where violence occurred. However, given the totality of the circumstances, I could not firmly conclude exactly what happened. Saying something happened versus having sufficient evidence to criminally charge someone are two completely different things. Charging decisions are taken very seriously and we use best efforts to conduct thorough and detailed investigations,” Tobias wrote in an email to USA Today.

Why would the league suspend Elliott even though he was never charged?

The league’s policy does not rely on the same burden of proof as the legal system does. The personal conduct policy says that “persons who fail to live up to this standard of conduct are guilty of conduct detrimental and subject to discipline, even where the conduct itself does not result in conviction of a crime.”

The league is fully within its rights to suspend Elliott for conduct detrimental to the league, even though he wasn’t charged.

The NFL has a public relations problem when it comes to its handling of violence against women, and for good reason. The league has been inconsistent in doling out discipline.

In July 2014, Roger Goodell initially issued a two-game suspension to Ray Rice after Rice knocked his then-fiancée out in an elevator. The light suspension was reportedly the result of lobbying by the Ravens owner. Rice received an indefinite suspension and was cut by the Ravens after TMZ released a video of the incident.

Former Giants kicker Josh Brown was suspended for only one game by the NFL to start the 2016 season, despite a known history of violence against his wife. After re-opening the investigation based on “new information,” the NFL issued a new 6-game suspension to Brown on Sept. 8 — coincidentally, the day it expected a ruling from a federal court in Texas on a temporary restraining order that would allow Elliott to remain on the field.

With Elliott’s suspension, the NFL sets an example and illustrates that even a popular player isn’t above the league’s rules and consequences for violating them.

What did the NFL find in its investigation?

Elliott’s accuser made false statements to police about the night of July 22, 2016. But the NFL believed there was credible evidence that Elliott had been violent toward her three separate times earlier that week.

The league’s investigation reviewed police reports, witness statements, photographic evidence, texts and other metadata. It also interviewed Elliott, the accuser, and a dozen witnesses.

In the NFL’s letter to Elliott, it says the four external advisors to the investigation “individually were of the view that there is substantial and persuasive evidence supporting a finding that you engaged in physical violence against (the accuser) on multiple occasions during the week of July 16, 2016.”

Former Attorney General of New Jersey Peter Harvey, an independent advisor appointed by the league, spoke to the media via phone about what they learned over the course of the investigation. Harvey said that he came to the conclusion that Elliott had been physically violent toward his former girlfriend.

Harvey said it “raised suspicions” when witnesses who had given affidavits did not want to be interviewed by the NFL. He was also struck by an inability of Elliott’s representatives to explain the accuser’s injuries any other way, even with the bar fight she was reportedly in earlier in the evening on July 22, 2016.

“Mr. Elliott’s representatives suggested that maybe she was in a fight with another woman and the bruises, for example a bruise to her eye, and perhaps other bruises on her body, were sustained in that altercation,” Harvey said. “The NFL’s investigators talked to people who witnessed that altercation and it was revealed that neither woman landed a punch on the other; they pulled each other’s hair but they never hit each other with a balled-up fist or in any other way.”

The letter the league sent to Elliott suggests that Goodell shares that sentiment.

“However, in the Commissioner’s judgment, there has been no persuasive evidence presented on your behalf with respect to how (the accuser’s) obvious injuries were incurred other than conjecture based on the presence of some of her bruising, which pre-dates your arrival in Columbus on July 16, 2016,” the letter read.

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In another incident reviewed by the NFL, Elliott was caught on video lifting up a woman’s top in public at a St. Patrick’s Day parade. Elliott was not charged or arrested, and the league said it wasn’t a factor in Elliott’s suspension. The NFL did, however, say in its letter to Elliott that the behavior was “inappropriate and disturbing, and reflected a lack of respect for women.”

Elliott’s accuser also filed an incident report against Elliott for simple battery with the Aventura (Fla.) Police Department in Feb. 2016. That case was suspended, and Elliott was not charged. The league did not consider that case in its investigation because it happened before he was in the NFL.

Why did Elliott get a six-game suspension when other players didn’t?

Six games is the baseline punishment for first-time offenders who commit domestic violence. This standard was established after the league botched its handling of the Rice situation.

With Rice, the league issued a two-game suspension that was later changed to an indefinite ban after the video of Rice knocking out his then-fiancee went public. Rice’s wife, the victim, was present at his disciplinary hearing and gave a statement in support of her husband.

Goodell admitted he “didn’t get it right” with Rice’s discipline, and the league revised its domestic violence policy as a result and instituted that six-game threshold for players who violate it.

Greg Hardy was accused, and initially convicted, of domestic violence against a former girlfriend. The complaint alleged that Hardy hit her, dragged her, and threw her on a futon covered with firearms. Hardy’s conviction was overturned on appeal, in part because his accuser did not cooperate with prosecutors.

She also did not cooperate with the league’s investigation. Still, Hardy was suspended for 10 games, which is more than the baseline. The policy allows for that if there are “aggravating factors.” But his suspension was reduced to four games on appeal.

Perhaps the most shocking application of the personal conduct policy was the league’s decision to issue a one-game suspension to former Giants kicker Josh Brown after he was arrested for domestic violence against his wife. Brown referred to the incident that led to his arrest as “just a moment,” but police records showed that Brown had been accused of more than 20 acts of violence against his now-former wife.

The NFL defended the minimal consequences for Brown based on the fact that his former wife did not cooperate with the league’s investigation. The league later re-opened its investigation when documents were released in which Brown admitted to abusing his wife repeatedly. They issued a six-game suspension at the conclusion of that investigation.

Elliott’s accuser did cooperate with the league’s investigation into her allegations. She met with league investigators six times. They had concerns with her credibility, but the independent advisors assigned to the investigation found the woman’s version of events credible even when taking into account her false statement to police on July 22 and other inconsistencies.

The letter to Elliott announcing his suspension also noted that a lack of cooperation from Elliott wasn’t a factor. If Elliott had failed to cooperate, his suspension might have been longer.

Why did the investigation take so long?

Elliott and Cowboys owner Jerry Jones both lamented the length of the league’s investigation. It took over a year for a few reasons, including the NFLPA waiting until May to turn over Elliott’s phone records and other relevant documents to the NFL.

An NFL investigation into player conduct involves several moving parts. The league won’t even begin its inquiry until law enforcement finishes its process and determines whether or not to file charges. For Elliott, that happened when the Columbus City Attorney’s Office declined to pursue charges against him in Sept. 2016.

League investigators interviewed 12 different witnesses, including Elliott and his accuser, and reviewed thousands of text messages and other documents related to the domestic violence allegations. The text messages available to league investigators exceeded what law enforcement had to work with during its initial investigation, according to The Washington Post.

The NFL also reviewed forensic photographic evidence and consulted with two medical experts to determine the timeframe in which Elliott’s accuser’s injuries were likely to have occurred. The NFL said in its letter to Elliott that on three occasions the medical experts agreed photographs of the woman’s injuries looked “recent and consistent” with her version of what happened.

Who made the decision to suspend Elliott?

The decision to suspend Elliott was Goodell’s alone.

Goodell notably did not participate in the interviews conducted with Elliott or his accuser, according to Pro Football Talk’s Mike Florio. Harvey also said that the group of advisors spoke to Goodell individually to give him their opinions. Article 46 of the current collective bargaining agreement gives Goodell absolute power over player discipline.

The actual investigation was undertaken by several people. The league had multiple investigators talk to witnesses and work through the evidence.

A panel of independent advisors interviewed Elliott and evaluated the findings of the investigation. Those four people were Harvey, former player and Hall of Famer Kenneth Houston, Women of Color Network CEO Tonya Lovelace, and former United States Attorney and Securities and Exchange Commission Chair Mary Jo White. White was also instrumental in the Saints’ Bountygate investigation.

What happened with Elliott’s appeal with the NFL?

Elliott officially filed an appeal with the league on the Tuesday after he was suspended. The hearing began on Aug. 29 and concluded on Aug. 31. On Tuesday, Sept. 5, Henderson announced his decision on Elliott’s appeal. The suspension was upheld.

Henderson released a statement regarding his decision.

“As his designated Hearing Officer in this matter, my responsibility is to determine whether the Commissioner’s decision on discipline of Mr. Elliott is arbitrary and capricious, meaning was it made on unreasonable grounds or without any proper consideration of circumstances,” Henderson said, via Adam Schefter. “It is not the responsibility, nor within the authority of, the Hearing Officer to conduct a de novo review of the case and second guess his decision.”

A foundation of Elliott’s appeal was to call his accuser’s credibility into question, according to Clarence Hill Jr. of the Fort Worth Star-Telegram. The woman’s false statement to police about the events of the night of July 22, 2016, as well as her request that her friend lie to police on her behalf will surely be a part of it.

The information Hill obtained was part of the league’s 160-page report detailing the findings of the investigation. According to those documents, Lisa Friel, the NFL’s lead investigator, and Kia Roberts, the league’s director of investigations, both had concerns about Elliott’s accuser’s credibility.

The Star-Telegram reported that Roberts recommended no suspension for Elliott, and her recommendation was ignored. The interview Roberts conducted with Elliott’s accuser was extensive. Transcripts of some of the conversations with Elliott’s accuser, which were obtained by the Dallas Morning News, show that Roberts thoroughly questioned Elliott’s accuser about discrepancies in her account of these events.

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A transcript of the appeal hearing obtained by the Dallas Morning News reveals that Elliott’s representatives did attack that point doggedly. Attorneys representing Elliott and the NFLPA identified what they identified as several flaws in the investigative approach, like Roger Goodell not meeting with either Elliott or his accuser and not making the accuser available to testify under oath at the appeal.

The NFL’s investigators were called to testify about the inconsistencies with the evidence and witness statements. Elliott’s representative, Jeffrey Kessler, said he believed it was the first time that a report had been filed from an NFL investigation without an investigator’s recommendation for discipline included.

The league leaned heavily on its use of forensic data and medical expert evaluation of photographs of Elliott’s accuser’s injuries in its decision to suspend. But Kessler said the forensic evidence was insufficient to fill the credibility gap. The NFLPA brought as a witness a medical expert who Kessler said would testify that you cannot assess the age of bruises from photos, which was an approach the league’s medical experts employed in the investigation.

Included in the league’s report of its findings is the revelation that the woman admitted to discussing the possibility of releasing videos of herself and Elliott having sex, according to Yahoo! Sports’ Charles Robinson. She and a friend spoke via text about using the videos for blackmail or selling them for a profit. The woman told investigators that she did not intend to blackmail Elliott, but this is likely to come up in Elliott’s appeal as well.

Elliott filed a report with the Frisco, Texas Police Department in Sept. 2016 alleging that his accuser had harassed him. Elliott said she called him more than 50 times over the span of a few hours and had hacked into his email account. That case is no longer active.

The appeal could have been heard either by Goodell or by an arbitrator Goodell designated. Goodell selected Harold Henderson, who also heard the appeals of Hardy and Adrian Peterson. Henderson has denied a request from Elliott’s representatives to make his accuser available to testify during the appeal hearing. Henderson also declined to release transcripts and notes from meetings with Elliott’s accuser.

In Hardy’s case, Henderson determined that the 10-game suspension issued by the league was excessive. Henderson reduced Hardy’s suspension to four games. Henderson upheld Peterson’s suspension. Both Peterson and Hardy were suspended before the league adopted its current domestic violence policy in Dec. 2014.

Elliott, Roberts, and the NFLPA’s forensics expert all testified before Henderson. The appeal hearing was initially scheduled for two days, but was extended after the NFL decided to make a witness available by telephone after initially refusing.

Henderson had three options: overturn the suspension, uphold the six-game suspension, or reduce the number of games Elliott is suspended. Henderson chose to uphold the suspension.

What happened in the U.S. District Court of Eastern Texas?

The NFLPA and Elliott’s attorneys filed a lawsuit in the U.S. District Court of Eastern Texas to vacate any suspension that may be handed down after the appeals process, citing “the most fundamentally unfair arbitral processes conceivable.”

On Friday, Sept. 8, Judge Amos Mazzant, a federal court judge in Texas, ruled on a motion for a temporary restraining order or an injunction to block Elliott’s suspension until Elliott’s lawsuit against the NFL is completed. Mazzant ruled in Elliott’s favor and issued the injunction.

The NFLPA issued a statement immediately after the ruling.

Mazzant said that he issued the injunction because this is not a matter of guilt or innocence, but whether or not the disciplinary process was applied properly.

“The Court finds, based upon the injunction standard, that Elliott was denied a fundamentally fair hearing by Henderson’s refusal to allow Thompson and Goodell to testify at the arbitration hearing,” Mazzant said in the ruling.

The following Monday, the NFL filed an appeal of the injunction. Two days later, the NFLPA filed an opposition, saying “The NFL faces no threat of irreparable harm if the stay is not granted, while others, including both Elliott and the Cowboys, will suffer substantial — in fact, severe and irreparable — harm.”

In its motion, the NFL said that if Mazzant did not issue a ruling by the close of business on Thursday, Sept. 14, that it would appeal to a higher court. Mazzant did not issue a decision, and the NFL filed an emergency motion with the 5th Circuit Court of Appeals the following morning, according to sports and gaming attorney Daniel Wallach.

Elliott’s team didn’t take long to issue a response via a statement obtained by NFL Network’s Ian Rapoport.

“The NFL’s latest maneuvering appears to be indicative of a league with an agenda: trying to navigate a public relations crisis rather than focus on fairness and fact finding,” the statement read.

Mazzant later ruled that the injunction would stand.

What happened in the 5th Circuit Court of Appeals?

In the NFL’s motion to the 5th Circuit Court, the league challenged Mazzant’s subject matter jurisdiction because the case was filed before the NFL appeal was settled. The league’s attorneys relied on labor case law that grants deference to labor arbitrators in these matters.

An oral argument was held in before a three-judge panel in the 5th Circuit Court on Oct. 2 on the NFL’s emergency motion for a stay. Elliott was not present, but representatives for the NFLPA and NFL were.

The league asserted that allowing Elliott to take the field did irreparable harm to the NFL, as it challenged the league’s ability to enforce the CBA and impacted competitive advantage. In its response, the NFLPA countered that it was in fact the NFL and its appointed arbitrator who were interfering with CBA procedures because of the way Elliott’s investigation was handled.

Two key questions were presented by the panel of judges, one to each side, according to NFL Network’s Tom Pelissero. They asked Elliott’s and the NFLPA’s attorneys if any court had accepted the argument that a lawsuit could be filed prior to the NFL’s arbitrator issuing a decision.

The NFL’s representatives were asked to explain why the league was willing to let Elliott play in Week 1 when the crux of their emergency motion was that it would cause irreparable harm to the league.

The court finally issued its decision on Thursday, Oct. 12. The panel of three judges sided with the NFL in a split decision on the basis that the federal court that issued the injunction did not have subject matter jurisdiction. Elliott’s six-game suspension was reinstated, and the NFL said it is effective immediately.

The court also ordered the District Court of Eastern Texas to dismiss Elliott’s case entirely. The NFLPA asked the court to recall that mandate, but the court denied that motion.

However, Elliott’s representatives have asked for a rehearing. They petitioned the court for an en banc hearing, which would involve all of the judges in the 5th Circuit as opposed to a panel of three judges.

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What happened in the U.S. District Court in New York?

On Oct. 16, the NFLPA filed a motion for a temporary restraining order with the New York Southern District Court. A judge granted the TRO on Oct. 17, but it only remained in place until Oct. 30. Elliott was eligible to play during this time.

This is the same court that heard Tom Brady’s Deflategate appeal. In that case, it sided with the NFL and upheld Brady’s suspension. However, the issue of “fundamental fairness” is the crux of Elliott and the NFLPA’s argument.

The NFLPA filed with this court for a preliminary injunction. There was an evidentiary hearing on Oct. 30 involving both sides. Judge Katherine Polk Failla issued her decision that evening, ruling against Elliott. The court issued a 24-hour stay on the order reinstating Elliott’s suspension to give the NFLPA an opportunity to file an emergency appeal.

The union did file an appeal and as expected Judge Failla did not overturn her own ruling. The NFLPA then filed an emergency appeal with the 2nd Circuit Court of Appeals.

Judge Failla’s husband was one of the attorneys who worked on crafting the collective bargaining agreement, which caused some to raise the question of whether or not Failla should have recused herself from a case involving the NFL and NFLPA. This is not a true conflict of interest, and she is under no legal obligation to do so, according to sports and gaming law attorney Daniel Wallach.

What happened in the 2nd Circuit Court?

The NFLPA appealed Judge Failla’s ruling, and Elliott was granted a temporary stay on Friday, Nov. 3 by the 2nd Circuit. That allowed Elliott to play in the Cowboys’ Week 9 matchup against the Chiefs, but it was not a resolution.

The NFLPA asked for an injunction from the court to allow Elliott to continue playing after Week 9. A hearing was held on that on Thursday, Nov. 9, but a three-panel judge denied an emergency injunction for Elliott. The decision said that Elliott “failed to meet the requisite standard” for injunctive relief. Elliott’s suspension then began immediately. He did not play in the Cowboys’ Week 10 loss to the Falcons, and three days later, Elliott announced that he was dropping all appeals.

Elliott will serve his entire six-game suspension and will return on Dec. 24 against the Seahawks.

Who else has been involved in the situation?

Elliott, who has maintained his innocence throughout this process, responded swiftly via his personal Twitter account after the league’s decision was first announced in August:

Elliott’s attorneys also released a statement that day.

“The NFL’s findings are replete with factual inaccuracies and erroneous conclusions and it ‘cherry picks’ so called evidence to support its conclusion while ignoring other critical evidence,” the statement read in part.

Jones was reportedly “furious” about the league’s decision, according to ESPN’s Adam Schefter. Jones had maintained that he did not expect Elliott to face discipline.

“There’s nothing,” Jones told USA Today in July. “I have reviewed everything. There is absolutely nothing, not one thing I’ve seen that has anything to do with domestic violence. I’ve seen nothing.”

On the day Elliott filed his appeal, Jones declined to comment.

“I don’t have anything to say about any of the appeal or anything about that issue, today,” Jones said via the team’s website. “But certainly I’ll be visiting with you guys about it in the future. Right now, today, is just not the time for me to talk about it.”

Elliott spoke to the media after the 2nd Circuit granted him a stay for Week 9.

“This is my name and my reputation,” Elliott said, via ESPN’s Josina Anderson. “That’s something I have to live with beyond football, so every day is worth fighting.”

Why are the NFL and NFLPA trading barbs about Elliott’s case?

The NFL and NFLPA engaged in a war of words via Twitter about the situation after the suspension was annouced:

The league wasn’t happy with Elliott’s plan to discredit his accuser in his appeal or the NFLPA’s role in it. While the record shows that the woman was dishonest at times, shifting blame to a victim is “shameful,” in the words of NFL Executive Vice President of Communications Joe Lockhart.

On the NFLPA side, it simply said the league was lying and it never leaked derogatory information about Elliott’s accuser to the media. This contentious back-and-forth has continued throughout the court process.

After the 5th Circuit Court sided with the NFL, the NFLPA said, “The appellate court decision focuses on the jurisdictional issues. The failures of due process by the NFL articulated in the district court’s decision were not addressed.”

The NFPA had one final, point statement, after Elliott announced he was dropping his appeal:

“On behalf of all players, the Union appealed the suspension of Ezekiel Elliott to its logical conclusion and we are withdrawing our lawsuit.

“Our vigilant fight on behalf of Ezekiel once again exposed the NFL’s disciplinary process as a sham and a lie. They hired several former federal prosecutors, brought in “experts” and imposed a process with the stated goal of “getting it right,” yet the management council refuses to step in and stop repeated manipulation of an already awful League-imposed system.”

Is it really over?

Yes. Although Elliott accepted his suspension, the NFLPA could have continued to fight the NFL in court. The union’s battle with the league was always about the collective bargaining agreement, not about whether Elliott was innocent or guilty.

But the NFLPA dropped its lawsuit once Elliott decided he would serve his six-game suspension without any further appeals.

It took longer than three months for Elliott to begin his suspension, which isn’t nearly as long as Deflategate lasted. There’s clearly a big difference between domestic violence and deflating footballs, but both dealt with labor law matters.

Brady served a four-game suspension to start the 2016 season for his role in the Deflategate controversy. The league announced Brady’s suspension on May 11, 2015, and the NFLPA filed an appeal on Brady’s behalf on May 14. The appeal was set for June 23, and Goodell announced that he would uphold the suspension on June 28.

Brady filed a federal lawsuit, and nearly a year later the U.S. Second Circuit Court of Appeals eventually determined Goodell did have the authority to issue the suspension. Brady announced on July 15, 2016 that he would accept the suspension and not take the case to the Supreme Court.

Because of the precedent set by that ruling, Elliott and the NFLPA likely would have had the same fate in court if they had continued to fight it. And it would have lasted many more months.