The NFL was likely popping the bubbly on Thursday after the Fifth Circuit Court of Appeals vacated a injunction that was preventing the NFL from suspending Dallas Cowboys’ running back Ezekiel Elliott while his case played out. The Appellate Court reasoned that the NFLPA filed the suit too soon before the NFL’s arbitrator issued a final decision.
But by Saturday conflicting reports had emerged over the fate of the Cowboys running back.
Despite the appellate ruling, the NFLPA maintains that Elliott is currently not suspended and a District Court preliminary injunction is still in place. At 11:15pm Saturday night, the NFL’s “PR guy,” Brian McCarthy battled back, tweeting that “the suspension of Ezekiel Elliott remains in place.”
So which is it?
For now it appears there’s a public relations war with both sides declaring victory because Elliott’s fate is still uncertain. He may play but he may not. He could play the whole season or he could be suspended as early as next Sunday.
Thursday’s appellate ruling was supposed to bring clarity but instead, the legal battle, which has played out more like a championship game than a court case, quietly took several shocking turns. Those turns were so subtle, that few even realize that anyone could score a touchdown in the next 24-72 hours and completely change the outcome.
The first shocking play executed by the Appellate Court, was that it abruptly cut off Elliott’s right to appeal its decision while keeping his suspension at bay. Under the traditional court rules he’s supposed to be on the field for at least two more weeks. Following an appellate ruling, there is typically a two-week window to petition the court for a rehearing en banc. During that time, the injunction stays in place. If granted, an en banc hearing would require all Appellate Judges (up to 17) to rehear the case.
Few anticipated the NFLPA or Elliott would even apply for a petition en banc because they are rarely granted (Tom Brady’s request for one was denied).
However, most main stream lawyers forget that this isn’t a regular case, it’s a sports case played strategically and the goal is to keep Elliott on the field as long as possible. The NFLPA planned to petition for a rehearing because it would keep Zeke in the game and case in Texas. There’s a fourteen-day window to petition, so that buys him two maybe three weeks of play time. Then, once submitted, it could take weeks if not months for the court to decide whether to grant a rehearing, which could theoretically keep him in the game all season. In the Brady case, it took nearly two months for the court to decide to deny him a rehearing.
The NFLPA also has good reason to believe that an en banc hearing could be granted because the Appellate Court’s ruling was anything but ordinary. Out of the three-judge panel, two ruled against Elliott but one ruled for him, issuing a scathing dissent that was longer than the main opinion. This unusual backlash from one out of three judges provided hope that a larger pool of Judges could rule in Elliott’s favor. The dissent thought District Judge Mazzant was right to let the case into Texas and a panel of more Judges may too.
So, when the Court of Appeals decision came down, the NFLPA checked the court docket and saw that it had until November 2nd to petition for rehearing. To be certain, the NFLPA had one of its attorneys call the clerk and the clerk assured her that there would be no final court mandate issued until the fourteen-day window to petition was up.
In a stunning move, the court mandate was issued less than 24 hours later, finalizing the Appellate Court’s ruling, sending the case to the Texas District Court to send to NY and cutting off Zeke’s right to petition for a rehearing while holding his suspension off. There are some circumstances where a mandate will issue right away and it’s usually in cases like Zeke’s that are dismissed for lack of jurisdiction. However, it’s also usually in an extraordinary circumstance and at the formal request of one of the parties to the litigation. Rarely does a Judge go rogue and kick a case out so quickly before someone can appeal. Here, there was not only no request, but the docket and clerk communicated information to the contrary. The move was so egregious that the NFLPA thinks someone did it in error. (Update: I spoke with a Circuit clerk who said it was not done in error but that the Judge ordered the mandate issue forthwith - or right away).
For the NFL this was a major victory, even if it was a clerical error. The NFLPA then rushed and motioned the court to recall its mandate and allow it to petition for rehearing, and hold the suspension off so Zeke can keep playing. A court will recall a mandate if it would result in an injustice and here it seems it would. But while the NFLPA waits for the court to decide, the mandate is in effect, meaning the District Court is supposed to dismiss to NY.
Alas, surprise play number two explodes on scene. Remember District Judge Mazzant? He’s the Texas Judge who put a hold on Zeke’s suspension. Well under traditional rules, Mazzant is supposed to strictly follow the Circuit Court of Appeal’s mandate and dismiss the case right away.
Maverick Mazzant struck again on Saturday, with a stunning order saying he would not dismiss the case until the Circuit Court rules on the NFLPA’s new motion to let it apply for a rehearing. This is pretty unheard of. It seems Mazzant was also stunned by the immediate mandate and either thinks it’s a mistake or wants to buy the NFLPA more time in Texas while it launches a desperate Hail Mary to get the case reheard.
So if you’re wondering what’s going to happen, the next few days could be critical. The Circuit Court could recall its mandate and allow Elliott to appeal and then Elliott will be on the field for the next few weeks maybe even months (whole season), while the Circuit Court decides whether to rehear the case. Or, the Circuit Court could deny the motion to recall and then Elliott’s camp can still try to get a rehearing in Texas but meanwhile there would be no hold on the suspension and the case would immediately ship back to NY. In that event, the NFLPA will have to run to NY and file for another emergency restraining order.
For now, even though the NFL’s “PR guy” is saying that Mazzant’s order is “administrative and does not in any way change the appeals court’s order vacating the preliminary injunction,” Mazzant’s order is actually contrary to routine administration and appears to be changing everything. He is not dismissing the case as ordered and keeping it in Texas. This prevents NFL from going to NY to enforce the arbitration award.
While Mazzant recognized in his order that the Fifth Circuit vacated his injunction, declaring it null and void... the Appellate Court is a “reviewing court.” This means, it issues an order and then transfers power back to a lower court to effect that order. In practice, a permanent injunction is usually dissolved by the issuing court, aka Mazzant. According to sources, Mazzant has taken no such action yet. He has also deferred dismissing the case. (Update: The NFLPA contends that the injunction has not been dissolved and suspension not back but in recent court papers, the NFL says Mazzant’s order reiterating the 5th circuit decision to vacate is enough to put the suspension back in effect and no dissolution is necessary).
Mazzant’s refusal to dismiss makes way for a possible petition for rehearing to happen early next week, and if the Circuit court recalls its mandate to send the case to NY, Zeke could be in all season whether he gets the rehearing or not. As of now Elliott’s suspension is far from reinstated because the case is still in Texas. There’s a pretty good shot there will be a ruling on NFLPA’s motion to recall the mandate and rehear the case before the NFL could pull him from next week’s game.