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Ezekiel Elliott Appeals; Where Do You Draft Him Now?

The NFLPA filed an arguably premature lawsuit on Thursday challenging the “imminent” ruling upholding an Ezekiel Elliott suspension.
Here are a quick summary of the issues, some speculation about the most likely scenarios, and some fantasy recommendations.

Legal Issues

The NFL’s personal conduct policy does not require proof beyond a reasonable doubt to punish a player. Instead, a player may be suspended if “the credible evidence establishes that he engaged in [prohibited] conduct.” Here, the prohibited conduct is Elliott’s alleged domestic battery of Tiffany Thompson.

Goodell found that the credible evidence supported three allegations of domestic battery. A Goodell-appointed arbitrator, Harold Henderson, is now reviewing those finding.

The NFLPA’s complaint alleges that the initial suspension resulted from two fundamentally unfair practices. First, senior NFL executives conspired to hide information from Goodell and his advisers — namely, they hid Kia Roberts’s1 conclusion that the credible evidence did not establish any violation. Second, Elliott and his lawyers were not allowed to cross-examine Thompson or review transcripts of her interviews with investigators.

The NFLPA plans to seek a temporary restraining order or preliminary injunction to delay any suspension. To get this relief, the NFLPA needn’t show that their claim will win on the merits. Instead, they must show only a “better than negligible” chance of success.2

Potential Outcomes

Here are the most likely outcomes, with my barely informed guesses on the likelihood of each outcome in parentheses.

1. Henderson reverses the suspension. (10 percent)

Elliott may persuade Henderson that the credible evidence does not establish a policy violation. An unlikely scenario, but one that grows more likely as the hearing drags on.

2. Elliott negotiates a shorter suspension. (15 percent)

This seems like a potential win for both sides, but it rarely happens in the NFL — to our knowledge. If it happens here, I would expect Elliott to miss two or three games.

3. Henderson upholds at least a partial suspension, but Elliott wins a preliminary injunction. (45 percent)

If Elliott loses his arbitration, I like his odds of winning a preliminary injunction. The NFLPA wisely filed a complaint in a Texas federal court before the arbitration was resolved. In Tom Brady’s case, the NFLPA filed in New York immediately after the arbitrator’s decision. Venue matters and a Texas judge is more likely to favor Elliott. Of course, the NFL may get the complaint dismissed for lack of ripeness.3

I’m not a labor lawyer, and I don’t have any arbitration experience, but Elliott’s legal arguments seem non-frivolous — especially the contention that the NFL’s head investigator’s conclusions were hidden from Goodell.

If Elliott wins a preliminary injunction, he’s very unlikely to serve any suspension in 2017.

4. Henderson upholds at least a partial suspension, and Elliott loses his bid for a preliminary injunction. (30 percent)

As I said above, I’m not a labor lawyer. Arguments that seem compelling to me may be laughable to a judge experienced in these matters. And arbitration awards are notoriously difficult to overturn in federal court. Recall that Tom Brady‘s suspension was ultimately reinstated by a federal court of appeals.

Fantasy football conclusions

In a typical 12-team league with six playoff spots, I’m comfortable drafting Elliott as soon as Devonta Freeman (my RB3) is off the board. My median projection for Elliott’s 2017 suspension is 2.5 games. Those games will almost certainly come during the regular season, and I’m happy to shoulder the risk in exchange for the advantage Elliott will provide in the playoffs.

  1. The NFL’s Director of Investigations.  (back)
  2. Actually, they have to show a bunch of other stuff, including irreparable harm from the suspension. But players routinely satisfy those elements.  (back)
  3. Basically, filed too early.  (back)

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