Over the holiday weekend we outlined some of the reasons the Cowboys could be optimistic about Ezekiel Elliott playing in Week 1 and potentially the entire season. Since then, the NFL has filed a motion to oppose Elliott's request for a temporary restraining order, which is simply the perfunctory part of the legal back-and-forth between the league's counsel and Elliott's lawyers.
Tuesday afternoon and Wednesday morning should be revealing for Elliott's immediate future. The TRO could have an effect on the potential injunction, at least in terms of being a precursor for what is to come from the court. But ultimately the court will need to consider the lawsuit Elliott filed on its own merits when debating whether to grant an injunction.
And according to Tom Gies, a management-side labor lawyer for Crowell and Moring, LLP who previously provided spot-on analysis of Tom Brady's chances in court, Elliott might face some difficulties.
For starters, this case is not the same as Brady's. Arguing for Elliott under those identical circumstances would be redundant and fruitless for Elliott's legal team, led by Jeffrey Kessler. Brady already lost, which provides precedent on that front. Instead, Gies says, this will be about the NFLPA's argument that the NFL did not provide "fundamental fairness" during the arbitration process.
"Kessler's challenge this time around focuses on withholding of evidence and argues that the award thus violates fundamental fairness," Gies told CBSSports.com. "The Brady decision, as the courts ultimately found it, was more about a disagreement with how the evidence actually presented was evaluated by the arbitrator, and [NFL commissioner Roger] Goodell's role."
But there are some connections to the Brady case -- specifically that the NFL required the lead investigator to testify at the appeal, which the NFL did not do in the Elliott matter. Kia Roberts has been a focal point of attention during this lawsuit, because of her reported recommendation for no punishment and her lack of testimony at Elliott's appeal.
However, Gies says Elliott could run into trouble because the NFL can claim it withheld Roberts' testimony in order to "retain privilege over her investigation." Additionally, Kessler's precedent for discussing the testimonies here might not be built on solid ground, said Gies.
"The fact that Kessler relies so heavily on commercial arbitration decisions [under Section 10 of the Federal Arbitration Act] and not labor relations cases exposes the vulnerability of the complaint," Gies said. "Labor arbitrators make rulings every day about whether or not to let certain witnesses testify. It is close to impossible to overturn an award on that basis."
For what it's worth, the NFL Players Association filed documents Tuesday morning claiming the FAA does not have jurisdiction over this case but that instead the Labor Management Relations Act (LMRA) does. Like almost all NFL legal battles, jurisdiction and laws that are wholly unrelated to the facts of the player's situation play a substantial factor in deciding the actual case.
So this might be bad news for Cowboys owner Jerry Jones, who on Tuesday expressed a large degree of optimism about Elliott's status. On the other hand, as Gies notes, the court where the Cowboys filed their lawsuit is perhaps less predictable and more labor-friendly than other potential venues; those reasons are precisely why Kessler and Co. chose the Eastern District Court of Texas as opposed to some of the more NFL-friendly venues these labor battles have seen in the past.
