Ezekiel Elliott will be back in court Thursday for the latest legal dust-up aimed at holding off his six-game suspension. Attorneys for Elliott, the Dallas Cowboys’ star running back, will try to convince a three-judge panel from the 2nd Circuit Court of Appeals in New York to grant him an injunction that allows him to keep playing while his case against the NFL works its way through the court system in the coming months.
Will he get it? When will we know? And if he doesn’t get it, does he have any remaining options that would keep him playing in the short term? All good questions, and we can offer some guidance on them, if not answer them. Here’s your latest Ezekiel Elliott legal primer with Thursday's hearing (scheduled for 2 p.m. ET) in mind:
What are Elliott’s chances of winning this round?
To secure an injunction, a plaintiff (Elliott, in this case) generally has to show four things:
A likelihood of success on the merits, meaning Elliott’s lawyers must prove he has a chance of ultimately winning the case, which is currently before the Southern District Court.
Irreparable harm to the plaintiff. Elliott’s argument in this case is that if he were ultimately to prevail in court in the larger case, he could not get back the six games he missed because of suspension -- only the salary lost and potentially monetary damages.
That the “balance of harms” works in his favor, meaning that any harm he would incur from not getting the injunction is greater than the harm that the NFL would gain from his playing while the case is heard.
That the injunction serves the public interest. Not an automatic here, obviously, because we’re talking about football, which isn’t that big of a deal in the grand scheme of things. But the NFLPA and Elliott’s lawyers would argue that this is a case about unfair labor practices that could have application beyond football and therefore could serve the public interest.
On Oct. 30, Judge Katherine Polk Failla of the Southern District found insufficient basis in Elliott’s arguments to meet that four-pronged test and denied his request for an injunction. That put Elliott’s suspension back in place until Friday, when the 2nd Circuit agreed to hear his appeal and granted an administrative stay that held off the suspension in the meantime. This is why Elliott was able to return to practice Friday, play Sunday and practice this week. As of now, he is not suspended.
What the 2nd Circuit will do is difficult to predict. This is the court that ultimately ruled in the NFL’s favor against Tom Brady in the Deflategate case in 2016, so given that precedent, you’d have to think it wouldn’t look kindly on the chances of Elliott’s case succeeding on the merits. It could come down to the court’s opinion on Failla’s rejection of Elliott’s claim that the balance of harms worked in his favor. Failla was of the opinion that Elliott could, if he ended up winning the larger appeal, be made whole via financial reward. It’s possible the 2nd Circuit could agree with Elliott and his attorneys that six missed games for a player whose average career length is 3.5 years is significant enough to constitute irreparable harm, and that the league won’t suffer if it has to wait until next year to suspend him.
When will the court rule on this?
Failla ruled hours after the hearing, and it’s possible the 2nd Circuit could issue a decision Thursday night or Friday. If that happens, and it rules against him, it’s possible Elliott’s suspension would start with this Sunday’s Cowboys game in Atlanta.
All of that is possible. Likely? Well, this is a three-judge panel, which by its nature might need more time to deliberate on this issue than the single judge did last week. Also, Failla was under a deadline, as Elliott’s temporary restraining order was set to expire that same day. The administrative stay Elliott got from the 2nd Circuit last week does not appear to have any expiration date assigned to it.
The official court ruling said Elliott had requested a stay “during the pendency of this motion that would enable Ezekiel Elliott to play his regularly scheduled game on Sunday, November 5, 2017.” It can probably be assumed that “the pendency of this motion” lasts until the three-judge panel reaches a decision, and unless it plans to do so Thursday or Friday, that would seem to ensure that Elliott is cleared to play Sunday. The court could clarify that during the hearing Thursday.
What happens if he wins?
If Elliott gets the injunction, then the NFL would have the opportunity to appeal that ruling -- either via an “en banc” hearing of the full 2nd Circuit or to the Supreme Court of the United States. It’s hard to imagine the 2nd Circuit granting a request for an en banc hearing or the league petitioning the Supreme Court on a matter such as this, so if Elliott gets his injunction, he’s probably OK to play the rest of the season, though still in danger of being suspended six games to start the 2018 season if he loses his case in court this offseason.
What happens if he loses?
If Elliott does not get the injunction, then he would have the opportunity to appeal that ruling, either via an “en banc” hearing of the full 2nd Circuit or to the Supreme Court. While it’s hard to imagine the Supreme Court granting a stay while it considered a request for an injunction, it’s not out of the question that Elliott could get another temporary stay from the 2nd Circuit (since he already got one last week) while it considered his request for a hearing en banc. That means it’s possible he could maintain playing eligibility for a few more weeks via these same kinds of temporary stays.
If Elliott does not get the injunction, however, there’s a strong likelihood that he ends up having to serve the six-game suspension this season, even if he can hold that decision off with temporary stays. Even if an additional stay allows him to play this weekend, once it expires, he'll be forced to serve the suspension. If that happens, he’d probably still pursue his case against the league, and if he were to win, he could sue for back pay and damages. But his chances of holding off the suspension while his appeal is heard would just about vanish.