Earlier this month, NFL commissioner Roger Goodell determined that Ezekiel Elliott shoving a 19-year-old security guard over a metal railing at a concert did not constitute a violation of the league’s personal conduct policy.
Now the guard, college student Kyle Johnson, is shoving back.
Figurately, that is.
As explained below, Johnson’s legal “shove” is one that could put Goodell in an awkward spot.
Johnson, who is from Laguna Hills, California, has decided to press charges against the Dallas Cowboys star running back. On Tuesday, the Las Vegas Metropolitan Police Department confirmed to TMZ Sports that it is now investigating the incident.
In response to Johnson pressing charges, Elliott’s attorneys, Scott Rosenblum and Jason Lampert, dismiss the move as part of an “extortion” attempt.
The basis of the word “extortion” in this context is not immediately clear. There is neither a court record of Johnson suing Elliott nor publicly available evidence indicating that Johnson or his representatives have demanded financial payment from Elliott in order to preempt the filing of a lawsuit.
Two football players, one metal railing and an off-field collision
Like Elliott, Kyle Johnson is a football player, albeit at a much lower level. He’s a 6’0”, 185-pound defensive back on the Pirates of Orange Coast College, the largest community college in Orange County. Johnson, a rising sophomore, didn’t appear in any games during the 2018-19 season. During his previous stint as a student-athlete at Laguna Hills High School, Johnson played both strong safety and wide receiver. There’s a highlight reel from his high school football days.
On Saturday, May 18, neither Elliott nor Johnson was acting as a football player. Yet true to form, Elliott played on offense of sorts while Johnson relied on a variation of the prevent defense.
Johnson was working as a security guard at the Electric Daisy Carnival (EDC) to earn a little extra money. The event was held at the Las Vegas Motor Speedway. EDC Las Vegas is an annual musical festival that draws several hundred thousand people over a three-day period.
Johnson wore an IPS Security jacket at EDC Las Vegas. IPS is a private company that provides security for nightlife events, including music festivals. On ZipRecruiter.com, IPS had published a post seeking applications to become a guard for the three-day EDC Las Vegas. The company sought individuals who could, among other things, warn violators of the premise’s rules and apprehend persons who “engaged in suspicious or criminal acts.” These duties included the ability to lawfully keep attendees out of restricted areas.
At about 3 a.m., Johnson encountered Elliott. TMZ obtained a two-minute video of Elliott, who was wearing a LeBron James replica Lakers jersey, walking around the festival. It appears that someone was trailing Elliott and filming him on their cell phone. The video is edited and seems to contain several sequences of Elliott at the event, including one where he is walking and eating. Here is the video:
At the 1:11 mark of the video, Elliott is shown standing a few feet from Johnson. At this moment Johnson was positioned in front of a metal railing and next to another man who was wearing an IPS security jacket. The video focuses on Elliott becoming agitated, apparently because he was denied access to a restricted area. The video then shows Elliott begin to turn away from Johnson. Then a voice which sounds like Elliott says, “pretty good” followed by someone saying, “what’s up?”
Elliott then pivots and walks toward Johnson. Elliott asks him, “You got something to say?”, to which Johnson, or someone else nearby, responds by asking “Hey what’s up?” Elliott then responded with, “Hey.” Johnson insists he only told Elliott, “Hey Zeke, you’re a big man, you’re in the NFL.”
But the action started when Elliott, who is six feet tall and weighs 228 pounds, walked right into Johnson. The force caused Johnson, who weighs about 40 pounds less than Elliott, to fall over a metal railing. Perhaps to make sure that Johnson fell, Elliott seems to shove Johnson with his right forearm while Johnson was falling. Johnson then hits the ground. Smartly, Johnson did not attempt to retaliate. He seemed to take the hit in stride.
Elliott, meanwhile, was quickly handcuffed by nearby police officers, but was not arrested or charged.
Johnson initially downplays the incident, but has remained annoyed about a lack of genuine apology
At the time of being shoved by Elliott, Johnson didn’t seem particularly troubled by the incident. In fact, he was smiling when Elliott came up to his face (though Johnson might not have been smiling if he knew he’d be hitting the pavement moments later).
Johnson has also acknowledged that he didn’t suffer any injuries as a result of Elliott making contact with him or as a consequence of him hitting the railing and pavement. In fact, in a recent interview with CBSLA.com, Johnson largely minimized his encounter with Elliott. Johnson stressed he “wasn’t hurt or anything” and he described what had occurred as “not the biggest thing in the world.”
Johnson’s restrained comments about the incident likely played an important role in Goodell declining to punish Elliott. One could watch the video and plausibly conclude that it was a fairly mild incident—particularly since Johnson wasn’t injured.
Still, Johnson has repeatedly expressed frustration that Elliott would bump and shove him over a metal railing, and then, in Johnson’s view, act like he had done nothing wrong. Johnson claims he told police that he didn’t want to press charges but still wanted an apology from Elliott. Johnson does recall Elliott apologizing to him, but in a way that Johnson found insincere. Whether or not his apology was real or fake, Elliott was released from police detention that early morning and went on his way.
Had there not been any video, it’s not clear if the public would have learned of the incident. But in 2019, many people are armed with cell phone cameras. For a celebrity such as Elliott, any kind of altercation in a public space has a good chance of being recorded, sold and published.
Goodell declining to punish Elliott unintentionally motivated Johnson to press charges
Now in mid-July, Johnson tells Fox 5 Vegas that his decision to press charges reflects both a lack of sincere apology from Elliott and—interestingly—Johnson’s disappointment in Goodell concluding that Elliott had not violated the personal conduct policy.
“To not have anything happen to him,” Johnson asserts, is akin to “the NFL basically saying it’s okay to go to Vegas, get obliterated and shove people over fences.”
Johnson’s remarks suggest that had Goodell fined or suspended Elliott, Johnson would not have pressed charges with the police. And if Johnson hadn’t pressed charges, odds are the controversy would have faded away.
That has all now changed with the police investigation.
Understanding the meaning—and limitations—of “press charges”
The phrase “press charges” does not mean that charges will be filed against Elliott. “Press charges” refers to a complainant, in this instance Johnson, requesting from law enforcement that another person be charged with a crime.
Whether a person is charged is a decision made by the government, not a private citizen who merely wants that happen. A charge requires a finding of “probable cause,” meaning sufficient facts and circumstances to conclude that a person committed a crime.
In reviewing the evidence, law enforcement will interview (or re-interview) Johnson, Elliott and, to the extent they are identifiable, persons who were standing near them. Video evidence will also be reviewed. The fact that Elliott was not arrested at the time of the incident does not mean he can’t be charged now or later on. The relevant statute of limitations in this instance would be one year, meaning Elliott could be charged with a crime until May 18, 2020.
If Elliott is charged, he would likely face simple battery, a misdemeanor which refers to willfully and unlawfully inflicting violent force on another person. Punching someone or, in this case, shoving them, can constitute simple battery.
Under Nevada law, a simple battery charge carries a maximum sentence of six months in jail or a maximum of 200 hours of community service in lieu of jail. There is also a $1,000 fine. It is unlikely that Elliott would be jailed over this minor incident, particularly given that no one was hurt. Still, if he is tried and either convicted or reaches a plea deal, he could be ordered to perform community service. That type of sentence would be, at a minimum, time-consuming for Elliott.
Elliott avoids a punishment . . . for now
On July 3, the NFL announced in a statement that it had completed a “comprehensive investigation” of the Elliott incident. The review included interviews with witnesses of the Las Vegas incident. The statement expressed that Goodell had “determined there was no violation of the personal conduct policy and no further action is warranted.”
One of the witnesses was Elliott, who had met with Goodell a day earlier. The NFL’s statement explained how Elliott admitted to Goodell that he had “demonstrated poor judgment.” Elliott, according to the NFL, also pledged to “make better choices in the future.” Goodell, meanwhile, used his meeting with Elliott to “reinforce the standards of conduct expected of him and the consequences for failing to meet those standards.”
Elliott, of course, needs no primer on the “consequences” of failing to meet requisite standards under Article 46 of the collective bargaining agreement. In 2017, Goodell suspended Elliott six games based on accusations that he had battered his ex-girlfriend, Tiffany Thompson. Elliott insisted that he was innocent. He also raised questions about Thompson’s credibility. Elliott was also not charged with a crime, let alone convicted of one.
Goodell nonetheless reasoned that, based on the NFL’s review of facts, Elliott had violated the personal conduct policy. The policy does not have the same goals as federal or state court systems, which focus on justice, punishment, predictability, compensation, deterrence and similar objectives. The policy instead centers on off-field actions by players that damage the league’s image, particularly with fans and sponsors. Further, unlike law enforcement or courts, Goodell is not bound by necessary burdens of persuasion: he can determine standards as he sees fit.
When Goodell suspended Elliott in 2017, he reasoned that the views of advisors and policy experts, coupled with the record as compiled by the NFL, showed there was “credible evidence” that Elliott violated the personal conduct policy. Goodell and other league officials were also concerned by the seriousness of Thompson’s accusations.
Elliott has taken a different approach this time around. He admits he was wrong and has publicly apologized. To that point, after meeting with Goodell on July 2, Elliott tweeted a statement where he admitted he made a “poor decision.” He further pledged to “work harder” to avoid putting himself in “compromised situations.” Elliott also reiterated that he apologized to Johnson right after the incident and stressed that he “meant it.” Most likely the apology was de facto required by the NFL as a condition of the league not punishing Elliott.
Would Goodell reconsider whether to punish Elliott for the EDC Las Vegas incident if Elliott is charged or convicted with a crime?
In light of the possibility that Elliott could be charged with simple battery, Goodell has created a conundrum of sorts.
By declining to punish to Elliott, Goodell annoyed Johnson and unintentionally made it more likely that Johnson would then press charges against Elliott. Goodell now faces the possibility of Elliott being criminally charged after Goodell cleared Elliott. If Elliott is charged, it would be at least partly because Goodell had cleared Elliott.
This is not the ideal situation for Goodell.
Goodell likely could—but probably wouldn’t—change his mind and punish Elliott should the running back be charged with a crime.
Article 46 is drafted in a way that doesn’t seem to contemplate a situation where a player is formally cleared by the NFL for off-field misconduct but is then charged with a crime for that same misconduct.
On one hand, Article 46 describes a written decision by the league as the “full, final and complete disposition of the dispute” and one that is binding on all parties. This suggests that Goodell could not simply reverse his decision on what he has already decided.
On the other hand, Goodell’s decision was based on what seemed like a fairly innocuous incident. If the incident becomes a criminal matter, Goodell could argue that the situation has materially changed, and that such a change could warrant a punishment.
To that point, Article 46 doesn’t contain anything like a “double jeopardy” clause, which in criminal law prevents a person from being prosecuted for alleged crimes after already being acquitted of them (as an aside, there are significant exceptions to double jeopardy, including when federal and state charges are brought).
Article 46 does feature a so-called “one penalty” clause, which instructs that the NFL and a team can’t both discipline a player for the same act or misconduct. Before Cowboys fans urge Jerry Jones to fine Elliott as a way of preempting an NFL suspension, bear in the mind that the one penalty clause clarifies that “the commissioner’s disciplinary action will preclude or supersede disciplinary action by any club for the same act or conduct.”
Goodell could also reason that the Elliott situation is more serious and worse than he was led to believe by Elliott. This type of reasoning played an important role in 2014, when Goodell enhanced his suspension of Baltimore Ravens running back Ray Rice from a two-game suspension to an indefinite one. The enhancement occurred after a second video surfaced of Rice dragging his then-fiancée (now wife), Janay Palmer, by the hair in the Revel Hotel and Casino in Atlantic City, N.J. At the time, there was debate over whether the NFL already possessed the second video and debate over the extent to which Rice had told Goodell about the video’s contents when the two met. Further, in a subsequent arbitration, former U.S. District Judge Barbara Jones vacated Rice’s suspension. She ruled that the NFL wrongly suspended Rice twice for the same misconduct.
While the Rice situation ultimately backfired on Goodell, one lesson from it is that the commissioner was willing to alter a punishment after making a ruling. It’s at least theoretically possible that Goodell could decide that his July 3 ruling to clear Elliott doesn’t preclude him from finding Elliott, if criminally charged, in violation of the personal conduct policy. Goodell could insist that the circumstances have changed, and the league’s reputation is harmed by a player being charged with a crime in a way that doesn’t occur if the player avoids a charge.
While Goodell may be able to punish Elliott if Elliott is criminally charged, would Goodell actually do that? It seems unlikely. The idea also seems very unfair.
As mentioned above, Johnson’s decision to press charges at least partly reflects his frustration over Goodell not punishing Elliott. For Goodell to punish Elliott for charges that would not have occurred but for Goodell’s own action creates an equity issue.
Further, even if the language of Article 46 could be contorted to permit a punishment of a player after the NFL clears the player, the spirit of Article 46 suggests that doing so would betray its essence. After all, Article 46 clearly places value on finality. Elliott and the National Football League Players Association would logically contend that finality was reached on July 3.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.