Elliott will be eligible to continue playing while he presumably files the same lawsuit we were just discussing, in hopes of overturning it permanently.
What are the chances of any of that happening? I thought the NFL could do just about whatever it wants with player discipline.
Yes it can, for the most part. The NFL’s personal conduct policy requires it to conduct what it terms a “credible” investigation before handing out discipline. But because the NFL runs the investigation, and commissioner Roger Goodell appoints the appeal officer, it for the most part can define “credible” itself. Most NFL players consider this an unaccountable closed circle. An attorney who has fought the league on multiple occasions once called the NFL’s typical approach an attempt to “view the facts through a lens” that will generate a predetermined outcome.
If that’s the case, what is the NFLPA’s argument?
Neither Elliott nor the NFLPA consider the NFL process to have been credible. In its appeal and in court documents, the union has argued against the word of the woman the NFL identifies as the victim. Most importantly, the NFLPA has pointed out that the only NFL investigator to speak to the victim doubted some of her testimony. That investigator, Kia Wright Roberts, argued against discipline for Elliott. But Goodell took the advice of Lisa Friel, his senior vice president/special counsel for investigations, and issued the six-game discipline anyway. The NFLPA labeled this turn of events a “conspiracy” to disregard information that could have mitigated the accusation.
How did Goodell justify that?
In its discipline letter to Elliott, the NFL acknowledged the concerns about the credibility of the accuser and the possibility of “alternative causation.” But, the league wrote, “there has been no persuasive evidence presented on your behalf with respect to how [the accuser’s] obvious injuries were incurred other than the conjecture based on the presence of some of her bruising which pre-dates your arrival … .”
Shouldn’t Goodell have put more weight into the advice of the investigator who actually interacted with the alleged victim?
Perhaps, but the league’s policy doesn’t require it. In the appeal hearing, in fact, NFL attorney Daniel Nash said: “Does the policy say that the junior investigator on the case makes the decision as to whether or not there’s a violation of the policy? Does it say that Ms. Friel, the senior investigator, gets to make the decision? No. It says the Commissioner has to make the decision.” The answer to this question is separate from whether it should be relevant in the case.
So how does the NFLPA prove that the NFL violated its policy?
It will have to make Judge Mazzant, and ultimately another judge that hears a full lawsuit, believe that the process wasn’t credible. That’s a tall order. The NFL is arguing that using the courts to second-guess the policy disregards the collective bargaining agreement between the sides. It used a similar line of reasoning to convince the courts to maintain New England Patriots quarterback Tom Brady’s four-game Deflategate suspension.
Well that doesn’t seem fair.
No, many players think the same thing. By now, they should know that they could be the next to be disciplined with evidence that falls far short of a legal standard. But there isn’t much the NFLPA can do about it. The CBA and the NFL constitution gives the commissioner broad and inequitable powers when it comes to discipline. All it can do is to challenge whether the NFL operated outside of its policy.
That’s not easy, given how much the policy favors the league.
Correct. You’re catching on!