Outside the Beltway

Ezekiel Elliott, the NFL, and Due Process

The NFLPA alleges "egregious violations of legal due process" in the Ezekiel Elliot suspension.

James Joyner · Friday, September 1, 2017 · 6 comments

The NFL and its Players’ Association are going back to court, this time over the suspension of Dallas Cowboys running back Ezekiel Elliott. On the surface, the players have a very strong case. But, as with the “DeflateGate” scandal involving New England Patriots quarterback Tom Brady, the near-plenary power that the players gave NFL Commissioner Roger Goodell in the collective bargaining agreement is likely to be the deciding factor.

The League suspended Elliot six games in response to domestic violence allegations dating back to his time at Ohio State. Columbus police ultimately decided not to charge Elliot with a crime, partly because his accuser, Tiffany Thompson, had been trying to blackmail him with the release of sex tapes unless he paid her money. While this certainly doesn’t prove that the alleged assault didn’t’ happen, it simply makes her testimony less credible.

The NFL, of course, does not need proof beyond reasonable doubt to suspend a player. After a thirteen-month investigation, they decided it was more likely than not that Elliot had committed violence. That he had at least two other questionable incidents—an altercation at a bar and a touching incident at Mardis Gras—didn’t help his case.

Elliot’s pro forma appeal to the League was held this week, with a ruling expected Tuesday. The NFLPA has decided not to wait. Their argument is rather compelling:

In the filing, the NFLPA alleges “there was a League-orchestrated conspiracy by senior NFL executives …. to hide critical information — which would completely exonerate Elliott” in his domestic violence case.

“During the course of the past 13 months and culminating in the last three days of the appeal process, we have witnessed some of the most egregious violations of legal due process in connection with the NFL’s investigation of Mr. Elliott,” read a statement from Elliott’s attorneys Frank Salzano and Scott Rosenblum. “Not only did the underlying facts not support the false allegations made against Mr. Elliott, but the process in which they were gathered and adjudicated were fundamentally unfair. Mr. Elliott looks forward to being completely vindicated and will continue to explore all other legal options to redress the reputational and monetary harm that he has suffered.”

According to the filing, Kia Wright Roberts, the NFL’s director of investigations, testified Tuesday that she was the only NFL employee who interviewed the running back’s accuser, Tiffany Thompson, during the investigation and that she would not have recommended discipline for Elliott based on what she found.

Roberts told Lisa Friel, who investigates domestic violence cases for the NFL, of her views, but was never allowed to convey them to NFL commissioner Roger Goodell or the “independent advisors.”

The NFLPA says Roberts concluded after reviewing all evidence that Thompson “was not credible in her allegations of abuse,” according to the filing.

“The withholding of this critical information from the disciplinary process was a momentous denial of the fundamental fairness required in every arbitration and, of course, does not satisfy federal labor law’s minimal due process requirements,” the union wrote.

On top of that, the NFLPA claims, Elliott and the union were denied the rights of a fair procedure when Henderson would not grant their request to have Thompson testify. Elliott did testify at this week’s appeal hearing.

“As such, 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,” the NFLPA wrote.

The NFLPA also questioned Henderson’s refusal to have Goodell testify in the appeals hearing, saying: “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.”

Let’s dismiss the “conspiracy” talk as rhetorical flourish. We have a classic “he said, she said situation.” The police found the accuser less than credible. But that could easily be chalked up to a local sports hero getting special treatment. Or, more charitably, to a calculation that, given Thompson’s attempts to blackmail Elliot, it would be too easy for his attorneys to establish reasonable doubt.

Until reading this report, my understanding was that the NFL’s investigative team had interviewed Thompson and, despite the blackmail attempt—which was documented in their report on the matter—determined her accusations against Elliot credible. After all, she was able to document bruises on her face and Elliot seemed to be the most obvious suspect. But now we’re finding out that the only person who interviewed Thompson for the League—a woman who specializes in these type of cases—found the claims to be false.  And the League decided that he was guilty, anyway? That makes no sense.

While the judicial rulings in the Brady case lead me to believe the NFL will ultimately prevail here, I do think they’re very different matters. While domestic violence is obviously a much bigger transgression than manipulating the air pressure in a football, one is a criminal matter that is traditionally handled by the judicial system and the other is about the integrity of the game itself. Brady and the Patriots were accused of cheating to help them win a playoff game. Regardless of whether one believes they did that, that’s clearly a matter where the League has to have absolute jurisdiction. Not so with the Elliot case.

In the wake of the Ray Rice fiasco—and several others, including Greg Hardy, whom the Cowboys signed to a free agent contract after he was suspended by the NFL for domestic assault—the NFL had an image problem and needed to show their resolve on this issue. Goodell instituted a rule that those found to have committed domestic abuse, regardless of whether they were actually convicted of a crime (Rice, Hardy, and others were not), would be subject to a six-game suspension. While Elliot was not on an NFL roster when the alleged incident took place, he had been drafted by the Cowboys and was therefore subject to the CBA.

But if they’re going to brand someone as an abuser of women—not to mention taking more than half a million dollars out of his pocket and depriving his team of his services for nearly half a season—there ought to be a high degree of due process. The investigation itself now seems highly suspect, given the treatment of Roberts’ findings. Further, Elliot should have the right to confront his accuser in a quasi-judicial proceeding with ramifications this significant. It very much looks like the NFL was simply using Elliot’s case to send a message that they will not tolerate domestic violence and were not going to let any findings contrary to that end get in the way.