Ezekiel Elliott's on-again, off-again suspension is back on courtesy of the Fifth Circuit Court of Appeals. Before I dish out fantasy advice on what to do with Elliott, let's first address why the appellate court saw fit to reinstate Elliott's suspension.
Why Elliott's Suspension Is Back On
Timing, timing, timing.
In the eyes of the Court of Appeals, this all turns on timing. Ultimately, the court reinstated Elliott's suspension because the NFLPA filed its lawsuit before arbitrator Harold Henderson rendered his decision. The court ruled that the NFLPA needed to wait until Henderson issued his decision before it filed its lawsuit.
The legal term is "exhaustion." Simply put, the NFLPA had to first fully exhaust the grievance procedures before filing its lawsuit. Here's what the court said on this very important point:
The NFLPA's lawsuit on Elliott's behalf was premature. The procedures provided for in the collective bargaining agreement between the
NFL and NFLPA were not exhausted. The parties contracted to have an arbitrator make a final decision. That decision had not yet been issued.
Now you may say: "Wait a minute, Macramalla ― the arbitrator issued his decision on Sept. 5 while the lower district court set aside Elliott's suspension on Sept. 8. So given that the district court issued its ruling three days after Henderson issued his decision, the lawsuit wasn't premature." Unfortunately for Elliott, the court doesn't look at it that way; the court looks at the date the lawsuit was filed, not the date the district court issued its decision. So here, the NFLPA filed its lawsuit on Aug. 31, five days before Henderson upheld Elliott's suspension. That was fatal for the NFLPA.
The NFLPA argued that even if the lawsuit was premature, it fell under the repudiation exception, which allowed it to file an early lawsuit. Repudiation refers to a party refusing to perform its duties or obligations owed to the other party. In this case, the NFLPA argued that the NFL failed to exercise its duties owed to Elliott under the collective bargaining agreement.
The court wasn't buying it. The NFL was fully engaged in the arbitration process set out under the CBA. Sure, the NFLPA didn't like how things were unfolding during the appeal and believed that Elliott was not afforded due process in what they saw as a fundamentally unfair appeal process. That, however, is not enough to fall under the repudiation exception since it's expected the parties will disagree. You need something more like the NFL not engaging in the appeal process.
Is The NFLPA To Blame?
Should the NFLPA be blamed for filing early? No. The general rule is that a lawsuit will be heard where it's filed first. As in DeflateGate, the NFL would want the case heard in a New York court. That wouldn't be good news for the NFLPA since that favors the league. The NFLPA prefers a friendly court like the one in Texas. As a starting point, the Cowboys play in Texas, so that's a positive. The problem for the NFLPA, however, is that the NFL would likely get to court first because it knows when the decision is being issued. That gives the league a much needed head start. We saw it in DeflateGate, and we were going to see it here again. So the NFLPA took a calculated risk hoping to secure home-court advantage. While it didn't work out, it was a reasonable strategy.
Is It Over?
No. First let's be clear about one thing: The court did not rule on whether Elliott was afforded due process, which is at the heart of this case. It simply concluded that the lawsuit was filed too early. So the suspension was put back in place on a technical point.
The NFLPA can still file another lawsuit seeking to have a court temporarily set aside Elliott's suspension pending the disposition of the case. So the NFLPA is not out of options. If they move quickly, there is a chance the case could be decided before the Cowboys return to the field in Week 7, following their bye this week.
Fantasy Advice
Fantasy owners are faced with the possibility of losing Elliott until Week 13, which in many leagues is the rest of the regular season. At this point, it's too early to trade Elliott for a modest return or to otherwise part ways with the running back. Elliott has good arguments available to him that he was not granted a fair shake during the appeal process before Henderson. Among the issues, Elliott was denied the opportunity to cross-examine Tiffany Thompson, who initially accused him of domestic violence; Goodell didn't testify; and the recommendation by lead investigator Kia Roberts that Elliott not be suspended was seemingly discounted, if not ignored, while Roberts herself was excluded from the ultimate decision-making process.
Remember, when Judge Mazzant initially set aside Elliott's suspension, he rather firmly declared that Elliott was not given a fair hearing: “The circumstances of this case are unmatched by any case this court has seen. ... Fundamental unfairness infected this case from the beginning, eventually killing any possibility that justice would be served.”
So the NFLPA still has options available to it to challenge Elliott's suspension. Just as it was premature for the NFLPA to file its lawsuit, it's premature to conclude that Elliott suddenly has limited fantasy value. There's still some track to cover.
