In some ways, Dallas Cowboys running back Ezekiel Elliott lost the appeal of his six-game domestic violence suspension before it ever was slated to begin. But the defeat is believed to have opened the door for Elliott to take his fight to a federal court, potentially delaying his suspension into the 2018 offseason.
Even before his appeal hearing this week in New York, Elliott’s defense team and the NFL players union suffered two significant setbacks that sources close to the player believe will result in a loss. Elliott’s representatives asked commissioner Roger Goodell to name an independent arbiter for the appeal – most specifically, not former league executive Harold Henderson, whom the union continues to argue is not a neutral party. That ultimately failed, as Goodell chose Henderson to hear the case.
The next loss for Elliott’s camp came when Henderson refused a request from the running back’s lawyers to make his accuser, Tiffany Thompson, appear for cross-examination at the hearing, which begins Tuesday. Henderson also went further, denying a request to make the notes and six specific Thompson interviews with investigators available in the hearing. A source told Yahoo Sports the potential cross-examination of Thompson and work material of investigators (which might have revealed flaws or missteps in the probe) were considered pivotal by the legal team and NFLPA in Elliott’s defense. Now they’ll have neither, significantly stacking the deck against probing the credibility and motives of Thompson, as well as keeping portions of the investigative process and interviews shrouded.
For Elliott, that’s all bad. For the NFL and Thompson, it can significantly strengthen the suspension being upheld. But there is a twist: The NFLPA and Elliott’s defense team have been looking for a potential procedural violation to mount a challenge in federal court. Sources have told Yahoo Sports that they believe they have it, via some of the same procedural collective bargaining arguments that opened the door for the union and quarterback Tom Brady to sue the NFL in deflate-gate. The sources declined to make the exact violations clear, but told Yahoo Sports that it involves all three of the aforementioned developments: naming Henderson as a partial arbitrator; failing to require Thompson to appear for cross-examination; and refusing to produce investigative material gathered when the NFL interviewed Thompson on multiple occasions.
The sources also told Yahoo Sports another significant development for Elliott: The NFLPA has once again called upon its most powerful outside attack dog, attorney Jeffrey Kessler. The sources said Kessler will be a significant part of Elliott’s appeal and the likely federal case filing that will occur next. The same Kessler who has waged war with the NFL on multiple high-profile occasions, including representing Brady in deflate-gate and the last antitrust case filed against the league. His involvement is key, largely because he is one of the most versed attorneys in the United States when it comes to the NFL and attacking it on the collective bargaining front.
A response time from the league is unknown, but in the event the six-game suspension is upheld, the NFLPA and Elliott’s defense team are expected to immediately file a lawsuit against the NFL in whatever federal jurisdiction it believes is most favorable to his case.
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