What, Did the Judge Draft Ezekiel Elliott for his Fantasy Football Team?

By Mark J. Swerdlin - Shawe & Rosenthal LLP

September 14, 2017

Last week we had our firm’s Fantasy Football draft.  Ezekiel Elliott went at the end of Round 2, behind usual top running back picks David Johnson and La’Veon Bell, but also behind lesser runners Melvin Gordon and Jordan Howard. Everyone knows that Zeke would have been a top five draft choice had he not already been suspended by NFL Commissioner Roger Goodell (aka the most hated man in Foxboro, MA), whose decision was then upheld by a labor arbitrator.  I’m kicking myself for taking Atlanta’s running back Devonta Freeman instead of Elliott. Why, you say?  Should I have known that Elliott was going to get his 6-game suspension enjoined? Well, if I had given any thought to the fact that the judge assigned to review Elliott’s case was the same judge who threw out the Department of Labor’s revised overtime regulations (while questioning whether the DOL has the authority to set the required salary level for the overtime exemptions, which it has done for 70 years), I might have realized that Zeke had drawn the best judge this side of Waco.

U.S. District Judge Amos Mazzant, from the Eastern District of Texas (i.e., not even some judge sitting on an island in the Pacific, as Attorney General Sessions is so fond of saying), has rewarded risky fantasy football owners all over who used  a high draft pick on Elliott. And, once more you ask, shouldn’t I have seen this coming?

Well, as the NFL pointed out in its brief to the U.S. Court of Appeals for the Fifth Circuit seeking to lift Judge Mazzant’s injunction, review of labor arbitration awards is extremely limited given the strong federal policy in favor of arbitration.  Labor lawyers like to say that unless you catch the arbitrator taking a bribe from one of the parties to the arbitration, it’s next to impossible to get one of these decisions overturned.  Now, to be fair, Judge Mazzant has not ruled that the arbitration decision in the Elliott case is to be overturned. That part of the case is still to come. But, he did rule that Elliott did not receive a fundamentally fair arbitration hearing and that he would suffer irreparable harm if the suspension was not stayed while the case proceeded.

Although criminal charges were not filed against Elliott, the NFL conducted its own investigation into the domestic violence allegations against him. Goodell imposed the 6-game penalty based on the investigation report, a transcript of an interview with Elliott, and some materials submitted by Elliott. The players’ Union then sought arbitration over Goodell’s decision. During the arbitration hearing before NFL-appointed arbitrator Harold Henderson (a former long-time NFL executive), after the Arbitrator granted the Union’s Motion to require one of the two investigators hired by the NFL to testify, the Union and Elliott discovered that that investigator did not find credible the woman who had accused Elliott of domestic violence. The Union alleged in the injunction proceeding before Judge Mazzant that the NFL had withheld information regarding that investigator’s assessment of the accuser from the Union, Elliott, and possibly even the Commissioner. Judge Mazzant agreed, and also found that the Arbitrator wrongly denied the Union access to important procedural requirements (i.e., investigator notes, cross examination of the accuser, and denial of the opportunity to question Goodell – the decision maker – about what he knew before he imposed the penalty.) Although the denial of witnesses and documentary evidence usually falls within the discretion of an arbitrator, Judge Mazzant found the denial of key witnesses and documents amounted to serious misconduct by the Arbitrator under the facts of this case.

Now, there’s no guarantee that, when the full case is heard, Judge Mazzant will overturn the suspension. Nor, is there any guarantee that the Fifth Circuit will allow Judge Mazzant’s injunction ruling to stand—after all, the hated (at least in Baltimore Raven Nation) Tom Brady got a federal district judge to rule in his favor before the Second Circuit Court of Appeals “rightfully” sat down the great deflator for four games.  So, I guess the takeaway is maybe I won’t lose every matchup with my league’s Elliott drafter if the Fifth Circuit follows what the Second Circuit did in the Brady case.