A Win for Arbitration Process, A Loss for the Cowboys and Ezekiel Elliot

As a sports fan and a fan of arbitration, I have followed with interest the ongoing battles between the NFLPA and the NFL over the consequences of their unusual arbitration process. It is no surprise to those who follow arbitration that the Fifth Circuit, ruled today that the NFLPA’s attempt to circumvent the parties’ agreed arbitration process by moving for a preliminary injunction in court was premature. As some may recall, “Arbitrator” Roger Goodell issued a six game suspension to former Buckeye great running back “Zeke” Elliott. According to the parties’ agreement, that suspension could be appealed to another arbitrator, here former NFL executive Harold Henderson. After the appeal hearing, but before Henderson issued a ruling, the NFLPA filed a motion seeking a preliminary injunction preventing enforcement of the suspension. On the same day as the preliminary injunction hearing, Henderson issued his decision, upholding the six game suspension. Three days later, the district court issued the injunction. The NFL appealed the preliminary injunction to the Fifth Circuit, which correctly ruled that the court which issued the preliminary injunction did not have subject matter jurisdiction over the complaint because the plaintiff/grievant Elliott had yet to exhaust his remedies under the collective bargaining agreement. The Fifth Circuit noted that there are some exceptions to the obligation to exhaust remedies in the grievance process governed by the CBA, but that none applied in this case.

Although there are still serious questions about the fairness of the underlying NFL arbitration process, the Fifth Circuit is right not to permit the NFLPA’s end run around the arbitration process to which they agreed. One presumes the NFLPA will now file another motion for a preliminary injunction since the adverse ruling has been made. Too bad they didn’t wait a few days for the ruling in the first place!

7 thoughts on “A Win for Arbitration Process, A Loss for the Cowboys and Ezekiel Elliot”

  1. Arbitration is the preferred process for dealing with disputes between players and their teams or players and their leagues across the professional sports landscape. This has allowed for neutral third parties to decide these disputes without dragging them through the litigation process, and it has been a successful model to deal with disputes for the professional sports leagues. The NFL, however, is running into a bit of a problem with Goodell’s role in these disputes.

    It is a widespread belief that Goodell is the judge and jury when it comes to deciding on these issues. The problem for the players is that they gave Goodell the power that he currently has through the last CBA, he is not wielding any power that is not actually his to wield. It will be very interesting to see how arbitrations that occur before the next CBA are handled and it will be even more interesting to see what happens during the negotiations for the next CBA between the owners and the players. The players are obviously uncomfortable with the current dynamic of the league’s dispute resolution and the only way they will be able to change this is by making changes in the new CBA.

  2. In recent years there has been a growing trend in the NFL for the players to go to the courts to try to get their suspensions overturned. The NFL players have been trying to argue that Commissioner Roger Goodell has too much power over the suspension process because the Commissioner is the person that gives the suspension and is also the arbitrator when the player appeals that suspension. The players are correct when arguing that the commissioner cannot be a neutral third party, as an arbitrator is supposed to be, when it is his ruling that is being challenged. The problem for the players is that this is a process that they agreed to in the NFL Collective Bargaining Agreement.

    During the 2011 Collective Bargaining Agreement negotiations, the players were primarily concerned with revenue sharing, player safety, player salaries, and reduced practice time. As a result of those concerns, the players contractually agreed to this suspension appeals process. The players had an opportunity to negotiate this process but chose not to. Since that CBA was enacted, players have challenged suspensions in Court for the Saints “bountygate,” Tom Brady’s “deflategate,” and domestic violence suspensions for Adrian Peterson, Ray Rice, and now Ezekiel Elliot. If the NFL Players Association and the players think this is an unfair process, they need to make this process one of their primary concerns in their next CBA negotiations when the current CBA expires after the 2021 season. Rather than complain that a process they agreed to is unfair, the players need to focus on changing that process in the future.

  3. The NFL has been in headlines a lot as of late. The various reasons, whether it be related to player protests, the unwarranted speech of owners, or the backlash for the suspension of various players, have created a rift between the NFL and the NFLPA. I agree that Roger Goodell has an amount of power unseen by any other sport league’s commissioner. While this is a problem, the blame falls on the players association and the people that negotiated the Collective Bargaining Agreement. Until they negotiate a new CBA in 2020, the NFLPA will have to continue arbitrating under the current framework that they agreed to.
    The arbitrator is supposed to be a third party to the arbitration to ensure that there is no bias. Here, Roger Goodell not only imposes the fines and suspensions, but is also the arbitrator deciding the disputes that arise out them. On appeal, the role of arbitrator still falls to a former NFL executive. This is simply flawed. Roger Goodell has no incentive to overturn any suspension or fine, especially since he was the one that ordered them.
    In the case of Ezekiel Elliot and his attempts to obtain a preliminary injunction against the NFL in hopes of vacating his six-game suspension, I believe that it is not the right thing to do and agree with the Fifth Circuits ruling. Elliot, through the NFLPA, has agreed to arbitration. As such, that is the appropriate course for these parties to take in resolving their dispute. Furthermore, I do not believe that the courts should be deciding this type of disputes in the first place. Though it seems unfair now, the NFLPA must be sure to account for all the current flaws in place when negotiating the new CBA to ensure that fair and quality arbitration occurs in the future.

  4. Within all professional sports, not just professional football, an arbitration process for solving disputes between players and the league office can lead to some fair rulings. However, where the NFL’s process is unique from other professional leagues is that Commissioner Goodell hands down the initial suspension, and then acts as the arbitrator when a player challenges the ruling. This is a process which I have always questioned. How can someone act as a proper arbitrator (an independent third-party who steps in to make a ruling) when the thing at issue is a ruling they made?

    This issue is something nearly every NFL fan is aware of, whether it was with Tom Brady in the “Deflategate” case or this current case surrounding the suspension of Ezekiel Elliot for domestic violence. While the process is questionable, the issue truly lies within the NFL CBA, where the players, through the NFLPA, agreed that this is how disputes would be resolved, with Commissioner Goodell acting as the judge and then the arbitrator when challenges are raised. While the appeal of the suspension by Ezekiel Elliot could remove Commissioner Goodell from the arbitrator position, the new arbitrator put in place likely still held some bias towards the NFL, being that he was a former NFL executive. Being that this is the process that the players agreed upon, they really cannot blame anyone other than themselves.

    I think at this point the players and the NFLPA are aware of the issues that they have caused for themselves through the CBA. They put in place a great process for solving disputes, but just had poor execution. During the next NFL CBA negotiations, the NFLPA should keep in mind that the utilization of arbitration for issues in the NFL, especially suspensions, could not only allow for a proper/fair ruling to be handed down, but could also restore player and fan trust in the process. Arbitration allows for an outside, unbiased opinion to be used to make a swift ruling, and being that these challenges of suspensions can be so time sensitive, it is in the players’ best interest to keep using arbitration to resolve disputes as long as they are able to agree in the next CBA that an independent individual must make these decisions.

  5. The NFL has been in almost every news media outlet the past few months. Whether its due to the tension between the President, Dallas Cowboy running back Ezekiel Elliott, or most recently Houston Texan’s owner impliedly referencing Houston Texans players as inmates. With the NFL being a billion dollar business, it is clear that it is under strict scrutiny, not only by its employees, but also the public at large.

    NFL Commissioner, Roger Goodell, has many powers in his role. He is often considered the judge, jury, and executioner of all NFL disputes. The arbitration process, that is supposed to have a third person involved, is not present in the NFL, in my opinion. What is so sad about this, to me though, is that the NFL Players Association agreed to these terms and the power that Commissioner Goodell has.

    Ezekiel Elliott has been back and forth with the NFL and his 6 game suspension due to his alleged domestic violence with his ex-girlfriend. Elliot has taken this matter to the federal courts to seek a preliminary injunction. I believe that the NFL’s lack of arbitration policies has caused Elliot to do this. In my opinion, I feel like there should be a better chance of arbitration within the NFL. Additionally, it would be interesting if the arbitrator was not an employee of the NFL, or if the arbitrator was not the NFL Commissioner. After so much publicity it will be interesting to see how NFL players go about negotiating the Collective Bargaining Agreement when the current term ends. I assume they will be more diligent and strategic in their approach to the issues that matter to them most.

  6. With the development of social media and societal pressure, sports have increasingly become a social platform over the years. We can look no further than the NFL, where Commissioner Roger Goodell has power that no other commissioner has had in the past across all professional sports. His “law and order” power has lead to the NFL expending enormous amounts of money fighting off high profile suspensions such as Ray Rice, Tom Brady, and Ezekiel Elliott. The power would not be an issue if it weren’t for the terms of the NFL’s Collective Bargaining Agreement. In my opinion, those who negotiated this agreement on behalf of the players did not properly protect the players.

    The process of arbitration is supposed to involve a third party decider. In the current situation, Goodell is the “arbitrator,” which makes it highly unlikely that he would find that his own decision was unfair. The appeal for a new arbitrator still does not bring in a true third party removed from biases. The arbitrator is a former NFL executive. This process does seem very unfair on its face. However, this is the power that the players themselves, through the NFLPA, agreed to give Roger Goodell.

    I believe the Fifth Circuit ruling to end the NFLPA is the correct decision. In my opinion, arbitration is the proper route for claims involving sports appeals. That being said, I agree with the previous comment by William Ruffing. The NFLPA should look to change the arbitration process in the next collective bargaining agreement. The arbitrator should be someone separate from the NFL Commissioners office, to ensure that this process appears legitimate. If this is achieved, I believe we will not see as many attempts to circumvent the arbitration process. After all, I believe that arbitration is the place to resolve these types of disputes, not the courtroom.

  7. The current climate between sports and arbitration is ripe with tons of exciting developments and questions regarding the arbitration process. Not only has the Ezekiel Elliot suspension raised arbitration issues but so has the recent grievance filed by Colin Kaepernick against the NFL. Kaepernick’s grievance concerns convincing an arbitrator that collusion has occurred and has caused him economic injury. This filing comes after Kaepernick has been unable to find a quarterback position on an NFL team.

    Both the Ezekiel Elliot and Colin Kaepernick situation bring further spotlight and scrutiny on the NFL arbitration process. As the cross roads between the NFL and NFLPA get worked out through arbitration and the judiciary, it will without a doubt bring more and more arbitration issues in the near future.

    One last note I wanted to say was that it should be very interesting when the next Collective Bargaining Agreement (CBA) is negotiated. The current active agreement was ratified in 2011 and extends through the 2020 season. I believe that the players, after the recent high profile suspensions of Tom Brady and Ezekiel Elliot, will look to potentially curb Commissioner Goodell’s power in terms of arbitration.

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