Why Zeke May Have A Better Case Than Brady Did

Dallas Morning News

FRISCO — Ezekiel Elliott’s immediate football future will become much clearer by 5 p.m. Friday.

Federal Judge Amos Mazzant, of the Eastern District of Texas, has promised to rule by then on whether to grant the Cowboys running back his motion for a temporary restraining order or preliminary injunction.

If the motion is granted, Elliott will be allowed to play beyond Sunday’s season opener against the New York Giants, which he’s already been cleared to play. If it’s denied, Elliott and the NFL Players Association will have one last opportunity by appealing to the Fifth Circuit Court of Appeals and asking for an immediate stay.

NFL Commissioner Roger Goodell on Aug. 11 announced a six-game suspension for Elliott, whom the league found to have caused physical injury to former girlfriend Tiffany Thompson on three incidents in July 2016 in Columbus, Ohio. Elliott has denied and fought the claims.

Arbitrator Harold Henderson on Tuesday night denied Elliott’s NFL appeal, which leaves the court system as his last venue to fight the discipline. Elliott filed a suit to vacate any NFL discipline last week.

A temporary restraining order, which Elliott’s representatives expect the judge to grant on Friday, would buy Elliott a couple of more weeks before another court hearing. An injunction would probably be enough to last the remainder of the 2017 season while the NFL appeals.

One of the matters Mazzant brought up during Tuesday’s hearing on the matter in Sherman’s Paul Brown United States Courthouse regarded the NFL’s recent “Deflategate” case involving New England quarterback Tom Brady.

Notably, Brady ultimately lost his fight against a four-game suspension in a federal appeals court, which reiterated courts’ broad deference to arbitration rulings and confirmed the power of Goodell as contained in the NFL’s collective bargaining agreement.

Mazzant quizzed the NFL’s and NFLPA’s lawyers during Tuesday’s hearing about the Brady case and said that he had read it, in addition to reading up on Elliott’s court documents.

The reason it’s important is that there are key parallels between the high-profile NFL cases, and Elliott’s could include a distinct legal difference and advantage.

Brady employed Jeffrey Kessler, the same lawyer who is heading Elliott’s case, and they are following a similar playbook. Both cases centered on the player accusing the NFL process of denying access to key witness and evidence. That goes to the heart of fundamental fairness.

Brady won his initial fight in district court by arguing the NFL denied him fundamental fairness because his representatives weren’t allowed to cross-examine Jeff Pash, the NFL’s co-lead investigator in his case, or Ted Wells, who wrote the investigative report on the Deflategate scandal.

According to Daniel Wallach, a lawyer and sports law expert who avidly covered the Brady case, Brady lost on appeal when it was ruled that Pash was only a “collateral,” or nonessential, witness in Brady’s arbitration fight.

In Elliott’s case, his argument has hinged on Henderson denying the request to make Thompson, the accuser, appear at the arbitration ruling, along with not requiring notes from NFL investigator Kia Roberts on her interviews with Thompson. Elliot’s side says Roberts’ opinion that there wasn’t enough evidence to suspend Elliott was deliberately not shared with Goodell.

Mazzant homed in on the matter Tuesday and even said that he found NFL special counsel Lisa Friel to be very lawyer-like in her answers about why Roberts didn’t directly share her opinions with Goodell. In addition, Goodell was not made to appear at the arbitration appeal hearing and discuss what he knew of Roberts’ opinion.

The NFL argues that Goodell was fully aware of Roberts’ thoughts.

Mazzant said he agreed generally that accusers shouldn’t have to appear in such situations, but he questioned if the cumulative events of this case placed additional importance on the chance to question Thompson.

“Her statements to the NFL are the very crux of the allegations against Ezekiel Elliott,” Wallach said. “On a scale of one to 10 on weak argument versus strongest argument possible, I would put Jeffrey Pash as a three or four. Tiffany Thompson is an 11.”

Mazzant said Tuesday he saw differences between the Brady and Elliott cases and called the series of events regarding witnesses and evidence in Elliott’s case something he couldn’t ignore.

Whether it’s enough to keep Elliott on the field for the Cowboys while the rest of the legal wrangling plays out will be known by supper time Friday.

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