The NFL argued in a pair of filings late Monday night that Dallas Cowboys running back Ezekiel Elliott does not have the legal standing to challenge in federal court a six-game suspension over domestic assault allegations.
The NFL Players Association filed a petition to vacate Elliott’s suspension and then sought a temporary restraining order hours after Elliott’s three-day appeals hearing ended on Thursday. The NFL-appointed arbitrator, Harold Henderson, has yet to issue his ruling on Elliott’s appeal.
"The NFLPA also lacks standing to seek a contingent order preemptively challenging an award that clearly has not yet (and may never) cause it or Ezekiel Elliott any harm," Eric Gambrell, a lawyer representing the NFL, wrote in one of the filings. "And the NFLPA’s claim is unripe to boot, as even the NFLPA acknowledges that the arbitrator’s forthcoming award could still afford the NFLPA all the relief it seeks."
Gambrell also struck back at one of the stronger allegations made by the NFLPA in last week's filings: Kia Roberts, the NFL’s director of investigations, had concerns about the alleged accuser's testimony that were not in the 164-page report.
"That claim, which remains under review by the arbitrator, is wrong as a factual matter because all of the evidence underlying Roberts’ concerns was specifically included in the investigative report and the commissioner was specifically informed of Roberts’ concerns," Gambrell wrote.
Amos Mazzant, a U.S District Court judge for the Eastern District of Texas, scheduled a motion hearing for Tuesday. Legal experts told USA TODAY Sports that the case could very well be dismissed if one thing fails to happen by the start of the hearing at 5 p.m. CT: a ruling by Henderson on Elliott's appeal.
"The longer the ruling goes, the more advantageous it is for the NFL, at least in the short-term," sports law attorney Daniel Wallach said. "It would allow the league to seek the dismissal of the Texas action. That's the best-case scenario for the NFL."
Added former assistant U.S. Attorney David Weinstein: "The court system is reluctant to let the litigants run the system, so if there is no ruling by the arbitrator by (Tuesday) afternoon, the judge will very likely dismiss the case."
The collective bargaining agreement has no set time period for an arbitrator to issue a ruling, although it's expected Henderson will announce his decision before the Cowboys open their season against the New York Giants on Sunday.
The NFL was expected to challenge the NFLPA’s claims much as it did when other players — including New England Patriots quarterback Tom Brady — have gone to court over the years to challenge the NFL’s personal conduct policy. While Brady had his suspension related to under-inflated footballs in the 2014 AFC championship game delayed a full season, an federal appeals court panel eventually ruled NFL Commissioner Roger Goodell had the authority to issue the four-game ban.
Gambrell cited the Brady ruling as he argued Elliott's case has no standing: "Settled precedent makes clear that federal district courts 'have no business weighing the merits of the grievance (or) considering whether there is equity in a particular claim.' "
Beyond the precedent set in Brady's case and others over the last decade, the NFL also said Elliott cannot prove irreparable harm — a vital element judges consider when a preliminary injunction is sought — because the results of his appeal has not been announced.
"The non-ruling by Harold Henderson is at the heart of the NFL's motion," Wallach said. "Without a ruling, the NFL argues Ezekiel Elliott suffers no irreparable harm since he hasn't been suspended yet. That means the NFLPA lacks standing to sue, and the federal court lacks jurisdiction to interfere with a pending arbitration proceeding."
Elliott was eligible to play the entire preseason after he appealed the suspension that was announced on Aug. 11. If Henderson does not lift the appeal and the federal courts do not issue an injunction, Elliott would begin suspension on Sunday.
If Elliott's case in Texas is dismissed, it's expected the NFLPA would refile in New York — where the NFL's headquarters is located — after Henderson issues his ruling.