As many fans and fantasy football GMs know, the NFL commonly suspends players for off the field misconduct. Players may challenge their suspensions through the NFL’s arbitration process. Some players, such as Tom Brady and Ezekiel Elliott, will appeal the arbitrator’s decision in court. While this process can leave some with their hopes deflated, Elliot’s recent successful preliminary injunction has called into question the authority of the commissioner of the NFL and the standards of review used by arbitrators and judges when reviewing discipline decisions.

The NFL’s Personal Conduct Policy states that “[p]layers convicted of a crime or subject to a disposition of a criminal proceeding (as defined in this Policy) are subject to discipline.” Additionally, players are held to a “higher standard”and must conduct themselves “in a way that is responsible” and “promotes the values of the NFL.” The policy lists various categories of conduct that can be subject to discipline such as “[c]onduct that undermines or puts at risk the integrity and reputation of the NFL, NFL clubs, or NFL players.” The league may investigate alleged conduct and “[p]layers found to have violated this policy may be placed on a period of probation as determined by the Commissioner.” However, discipline is only warranted when “credible evidence establishes that the player engaged in conduct prohibited by this Personal Conduct Policy.”

NFL players that wish to challenge their suspensions are required to appeal pursuant to the NFL’s Collective Bargaining Agreement. They must first appeal to a designated Hearing Officer who is “charged with determining whether the commissioner’s disciplinary decision is arbitrary or capricious, meaning was it made on unreasonable grounds or without any proper consideration of circumstances.” Thus, he does not have the ability to conduct a “de novo review of the case and second guess [the commissioner’s] decision.”

A player may then sue if they believe they did not receive a fair arbitration. A court is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act. The court must simply ensure that the arbitrator was “even arguably construing or applying the contract and acting within the scope of his authority” and did not “ignore the plain language of the contract.” Also, the appealing party typically must have exhausted any remedies provided for in the CBA before an appeal of an arbitration.

Elliot was the subject of a year-long investigation, and the commissioner imposed a six-game suspension. Pursuant to the CBA, Elliot appealed to an arbitrator. Following a three day arbitration, Elliot sued the NFL in the Eastern District of Texas for the arbitrator’s impending decision on the basis that he did not receive a fundamentally fair hearing. The judge held that while he didn’t exhaust all options under the CBA, he did qualify for an exception that does not require exhaustion if the employer’s conduct amounts to a repudiation of the remedial procedures specified in the contract.

Elliot requested a TRO and preliminary injunction to enjoin the suspension. The judge determined that Elliot has a substantial likelihood of success on the merits as the arbitrator refused to allow Elliot to cross-examine the alleged victim and refused to allow him to question the commissioner about what he knew before making his decision. The Court also held that “improper suspensions of professional athletes can result in irreparable harm to the player” because “[t]he careers of professional athletes are short and precarious, providing a limited window in which players have the opportunity to play football in pursuit of individual and team achievements.”

The NFL appealed the grant of the preliminary injunction to the Fifth Circuit. However, Elliot’s success in district court may incentivize players to continue pursuing this legal avenue in the future.

Joseph Dorris

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