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National Football League Management Council v. National Football League Players Association

United States District Court, S.D. New York

October 30, 2017



          KATHERINE POLK FAILLA, District Judge

         Invoking his authority under the operative Collective Bargaining Agreement (the “CBA”) and related Personal Conduct Policy (the “PCP”), Roger Goodell, the Commissioner of the National Football League (the “NFL”), imposed a six-game suspension on Ezekiel Elliott, a running back with the Dallas Cowboys, in August of this year after a league-sponsored investigation into allegations of domestic violence. The National Football League Players Association (the “NFLPA”) appealed this decision to an arbitrator, who upheld the Commissioner's decision in September.

         Unsurprisingly, the National Football League Management Council (the “NFLMC”) seeks confirmation of the arbitral award, while the NFLPA seeks its vacatur. Equally unsurprisingly, both parties to this action have staked out litigation positions with specific reference to last year's decision by the Second Circuit in National Football League Management Council v. National Football League Players Association (Brady II), 820 F.3d 527 (2d Cir. 2016): While the NFLMC argues that Brady II compels affirmance of the arbitrator's decision, the NFLPA contends with equal force that the “fundamental fairness” argument left open by Brady II both applies to the arbitrator's decision and compels its reversal.

         Pending before the Court is the NFLPA's motion for a preliminary injunction to block enforcement of the six-game suspension. After reviewing the parties' comprehensive written submissions and hearing extensive oral argument earlier today, the Court concludes that, on this record, the NFLPA has failed to demonstrate a substantial question warranting the extraordinary remedy of injunctive relief or a balance of hardships that decidedly weighs in its favor. While reasonable minds could differ on the evidentiary decisions made by the arbitrator, the proceedings in their totality accorded with the CBA and the PCP - and, to the extent such an inquiry applies, with precepts of fundamental fairness. The arbitrator gave Mr. Elliott ample opportunity, in terms of both proceedings and evidence, to challenge the Commissioner's decision before the arbitrator; the arbitrator's ultimate decision against Mr. Elliott does not render these proceedings any less fair. Accordingly, the Court dissolves the temporary restraining order that has been in place since October 17, 2017, and denies the NFLPA's motion.


         A. Factual Background[1]

         The essential facts are undisputed, and the Court therefore draws from the record before it. See Md. Cas. Co. v. Realty Advisory Bd. on Labor Relations, 107 F.3d 979, 984 (2d Cir. 1997) (“Generally, the district court is not required to conduct an evidentiary hearing on a motion for a preliminary injunction when essential facts are not in dispute.” (citations omitted)).

         1. The Parties and the Relevant Labor Agreements

         A Collective Bargaining Agreement (“CBA”) defines the professional relationship between the NFL and its players. (Compl. ¶ 5). The NFLMC operates as the bargaining representative of the NFL's member clubs (Compl. ¶ 3; Answer ¶ 19), while the NFLPA is a nonprofit corporation acting as the union and bargaining representative of all NFL players (Compl. ¶ 4; Answer ¶ 20). One such player is Ezekiel Elliott, a running back for the Dallas Cowboys who is now in his second season in the NFL. (Answer ¶ 22). During his first season, he enjoyed notable success, including being named Offensive Rookie of the Year, first team All-Pro, and a Pro Bowl player. (Id.). But Elliott's rookie season was also notable for allegations of off-the-field misconduct, prompting an internal investigation.

         Article 46 of the CBA imparts disciplinary authority to the NFL Commissioner, or his designee, for conduct that is “detrimental to the integrity of, or public confidence in, the game of professional football[.]” (Kessler Decl., Ex. A-58). The Commissioner issues an annual Personal Conduct Policy (“PCP”) that identifies behavior he considers “detrimental to the league and professional football” and provides procedures for imposing discipline. (Id. at Ex. A-16). Under the operative PCP, issued in 2016, where such conduct does not result in criminal conviction, the Commissioner may impose discipline “if the credible evidence establishes that [a player] engaged in conduct prohibited by” the PCP. (Id.).[2] Article 46 of the CBA specifies the exclusive procedures for resolving “[a]ll disputes” over such discipline imposed by the Commissioner, and it provides players the right to a hearing to appeal their discipline. (Id. at Ex. A-58).

         2. The Investigations into Elliott's Alleged Domestic Abuse

         In July 2016, the Columbus (Ohio) Police Department investigated claims by Tiffany Thompson, with whom Elliott had previously had an intimate relationship, that Elliott had physically abused her on five occasions during the week of July 16, 2016. (See Kessler Decl., Ex. A-24, A-44). By July 22, 2016, law enforcement officers investigating Thompson's allegations had concluded that there was insufficient evidence to establish probable cause to arrest Elliott, due to conflicting accounts of the underlying facts. (See Id. at Ex. A-24). The Columbus City Attorney's Office then investigated the allegations but declined to charge Elliott, citing “conflicting and inconsistent information … resulting in concern regarding the sufficiency of the evidence to support the filing of criminal charges.” (Id. at Ex. A-40).

         The NFL's director of investigations, Kia Roberts, and the NFL's Special Counsel for Investigations, Lisa Friel, conducted a separate investigation into the allegations, with Roberts conducting a majority of witness interviews over the course of the investigation. (Kessler Decl., Ex. A-44, Ex. C at 261:8-16 (Aug. 30)).[3] This investigation resulted in a report that the NFL issued on June 6, 2017 (id. at Ex. A-44); the NFL then held a meeting on June 26, 2017, during which Friel presented the findings of the report to Elliott, his agents, and the NFLPA (id. at Ex. A-45). The Commissioner also ordered that an advisory panel be present. (Id. at A-45, 7:14-23).

         During this meeting, upon questioning by Mary Jo White, one of the Commissioner's advisors, Friel represented that only one of the alleged instances of abuse leveled by Thompson had been found to be not credible. (Kessler Decl., Ex. A-45 at 151:20-153:14). As the NFLPA points out in its briefing, Roberts was not present at the meeting, and the report did not include any investigators' conclusions drawn from the evidence. (Id. at 3; see, e.g., NFLPA Br. 5-6). The NFLPA responded to the report on July 17, 2017, pointing to evidence in the NFL's report undermining Thompson's credibility and offering alternative explanations for certain facts, including the bruises that had been photographed on Thompson's body. (See Kessler Decl., Ex. A-48).

         3. The NFL's Discipline of Elliott Pursuant to the CBA

         After the NFL's June 2017 meeting, on August 11, 2017, the NFL notified Elliott that the Commissioner was exercising his power under Article 46 of the CBA to suspend Elliott without pay for the first six games of the 2017 NFL regular season for using “physical force against a woman in the context of an intimate relationship.” (Kessler Decl., Ex. A-49). Specifically, the Commissioner found that Elliott had “used physical force against Ms. Thompson resulting in her injury” on three out of the five alleged instances of abuse during the week of July 16, 2016. (Id.). The Commissioner based this finding “on a combination of photographic, medical, testimonial and other evidence” that the Commissioner considered “sufficiently credible … to establish the facts, even allowing for concerns … about [Thompson's] credibility.” (Id. (emphasis added)).

         On August 15, 2017, the NFLPA appealed Elliott's suspension pursuant to Article 46 of the CBA. (Kessler Decl., Ex. A-50). The Commissioner designated Harold Henderson to serve as arbitrator for Elliott's appeal. (Compl. ¶ 11; Answer ¶ 32).

         Before the arbitration, the NFLPA requested that the NFL (i) produce documents related to the Thompson interviews, including investigative notes, and (ii) compel Thompson, Friel, and Roberts to testify at the arbitration hearing. (See Kessler Decl., Ex. A-51, A-53). The NFL rejected almost all of the NFLPA's requests, agreeing only to provide Friel's testimony. (Id. at Ex. A-52, A-54). After a telephonic hearing, Henderson denied the NFLPA's request for the production of documents and for Thompson's testimony; acknowledged that the NFL would make Friel available to testify; and further ordered the NFL to make Roberts available to testify. (Id. at Ex. 55).

         From August 29 through 31, 2017, Henderson held the arbitration hearing. (See generally Kessler Decl., Ex. C). At the hearing, Roberts testified that she “had concerns about [Thompson's] Credibility” due to contradictory statements by other witnesses, including Thompson's friends. (Id. at 172:21-173:22). Significantly, however, she stated that “[a]ny concerns, any inconsistencies were completely put into the [NFL's] report, ” and that she shared her concerns with Friel and other NFL investigators, including her superior, Cathy Lanier. (Id. at 163:11-165:16, 172:21-173:22, 174:7-11 (Aug. 29)).

         Friel acknowledged during her testimony that Roberts had “express[ed] the view internally that … there was not sufficient” corroborating evidence of Thompson's allegations. (Kessler Decl., Ex. C at 301:22-302:2 (Aug. 30)). Friel also testified that before the Commissioner decided to impose discipline, Friel informed him that she (Friel) found the evidence sufficient to impose discipline, but that she was unsure whether Roberts “met with the Commissioner to give [her] views about the sufficiency of the evidence.” (Id. at 322:21-25, 338:23-339:5 (Aug. 30)). When asked whether she told the Commissioner “specifically that Ms. Roberts had expressed the view that the corroborating evidence was insufficient to proceed, ” Friel replied that she could not “recall whether it was stated in those words”; later, she clarified that “[t]he Commissioner was told … that Kia Roberts did not think that we had enough for a violation, ” and that her earlier equivocation “had more to do with the exact language of [‘]insufficient evidence['].” (Id. at 324:8-13, 336:8-12, 338:8-17 (Aug. 30)).[4] Friel testified further that the NFL Report excluded any investigator's recommendation as to whether Elliott violated the PCP as the result of a decision she reached “in conjunction with counsel”; the decision was that, due to the voluminous report, she “thought the Commissioner would be better served by … a report that laid out all that evidence.” (Id. at 265:10-266:17 (Aug. 30)).

         Elliott testified at the hearing and denied any acts of abuse against Thompson. (Kessler Decl., Ex. C at 86:4-10 (Aug. 30)). He also produced a witness, Alvarez Jackson, who was present in Elliott's apartment during the relevant time period and testified that he did not see any signs of, nor hear any complaints of, abuse by Thompson. (Id. at 220:16-221:25 (Aug. 30)). The NFLPA also presented expert evidence in an attempt to discredit photos of Thompson's alleged injuries. (Id. at 91-132 (Aug. 29)). During the hearing, the NFLPA demanded, for the first time, that the arbitrator compel the Commissioner to testify so that the arbitrator could determine whether he should defer to the Commissioner's factual findings, as the NFL argued he should. (Id. at 348:1-17 (Aug. 30)). The arbitrator declined the request to compel. (Id. at 348:18-349:15 (Aug. 30))

         On September 5, 2017, the arbitrator issued an award affirming the six-game suspension, finding “that the record contains sufficient credible evidence to support” the Commissioner's determinations. (Kessler Decl., Ex. H). The award's analysis begins by noting that although both Friel and Roberts “expressed surprise that they were not asked to make a recommendation on discipline based on their investigation and report, ” and “Roberts could not explain why she was not invited to participate in the” June 2017 meeting, “their roles fit squarely into the process outlined” in the PCP. (Id.). The award notes that despite the NFLPA's claim that Friel's and Roberts's testimony revealed “new evidence” regarding Thompson's credibility that was material to the Commissioner's decision, “all the statements and inconsistencies [undermining her credibility were] ...

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