United States District Court, E.D. Texas, Sherman Division
NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, on its own behalf and on behalf of EZEKIEL ELLIOTT
NATIONAL FOOTBALL LEAGUE and NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL No. 4
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Petitioner's Emergency Motion for
Temporary Restraining Order or Preliminary Injunction (Dkt.
#5). The Court has a very limited role in this case. The
Court is being called upon to determine, at this preliminary
stage, whether Dallas Cowboys running back Ezekiel Elliott
(“Elliott”) received a fundamentally fair
arbitration hearing. The question of whether there was
credible evidence of domestic abuse is not before the Court.
Nor are any of the underlying facts in the dispute between
Elliott and Tiffany Thompson (“Thompson”). Based
upon the preliminary injunction standard, the Court finds,
that Elliott did not receive a fundamentally fair hearing,
necessitating the Court grant the request for preliminary
dispute centers on the NFL Commissioner Roger Goodell's
(“Commissioner” or “Goodell” or
“Commissioner Goodell”) decision to suspend
Elliott for six games due to allegations of domestic violence
made by Thompson. In July 2016, Columbus, Ohio law
enforcement officers investigated allegations made by
Thompson against Elliott for domestic violence. After the
initial investigation on the scene, law enforcement officers
found no probable cause for an arrest, due to
“conflicting versions of what had taken place over the
listed dates.” (Dkt. #5 at p. 4). The police continued
to investigate the incidents until September; however, law
enforcement officers decided not to criminally prosecute
Elliott given the “conflicting and inconsistent
information across all incidents.” (Dkt. #1, Exhibit 43
at p. 2).
to the NFL's Personal Conduct Policy (“PCP”),
the Commissioner may discipline players even without a
criminal charge, arrest, or conviction. (Dkt. #1, Exhibit 22
at p. 5). However, discipline is only warranted when
“credible evidence establishes that [the player]
engaged in conduct prohibited by this [PCP].” (Dkt. #1,
Exhibit 22 at p. 5). Thus, following law enforcement's
investigation, the NFL engaged in its own investigation of
Elliott's alleged conduct. Kia Roberts
(“Roberts”), Director of Investigations, and Lisa
Friel (“Friel”), Senior Vice President and
Special Counsel for Investigations, investigated the
accusations against Elliott for an entire year. After the
investigation, Roberts and Friel assembled the NFL
Investigative Report (“the Elliott Report”). The
Commissioner also assembled outside advisors who met on June
26, 2017, and interviewed Elliott. (Dkt. #2, Exhibit 13 at
117:10-21, 337:3-9 (Aug. 30, 2017)).
August 11, 2017, B. Todd Jones sent Elliott a letter
informing him that Commissioner Goodell decided to impose a
six-game suspension on Elliott. Jones stated that, in making
his decision, the Commissioner reviewed “the record,
including [the Elliott Report], the transcript of the June
26, 2017 meeting, and the material submitted on
[Elliott's] behalf.” (Dkt. #1, Exhibit 53 at p. 4).
receiving the letter, Elliott filed his appeal pursuant to
the NFL-National Football League Players Association's
(“NFLPA”) Collective Bargaining Agreement (the
“CBA”). The appeal went to an arbitrator charged
with determining whether Commissioner Goodell's
disciplinary decision was arbitrary and capricious. (Dkt.
#23, Exhibit 2 at p. 7). In other words, the arbitrator
decides whether Goodell's decision was made on
unreasonable grounds or without any proper consideration of
circumstances. (Dkt. #23, Exhibit 2 at p. 7).
preparing for arbitration, the NFLPA filed a motion to compel
requesting the arbitrator, Harold Henderson
(“Henderson”), order the NFL to provide Thompson
for cross-examination, along with the NFL investigators'
notes. (Dkt. #1, Exhibit 57). The arbitrator denied the
request, stating “[t]he Commissioner's decision in
this case was based on affidavits, statements, and interview
reports, all of which are available to Mr. Elliott under the
procedures of the [CBA].” (Dkt. #1, Exhibit 59). In
that same motion, the NFLPA also asked Henderson to order the
NFL to provide Roberts to testify. (Dkt. #1, Exhibit 57). The
NFL responded to the request arguing that Henderson should
deny the NFLPA's request because Roberts's testimony
was cumulative and unnecessary. (Dkt. #1, Exhibit 58).
Henderson granted the NFLPA's motion to compel Roberts to
testify at the arbitration proceeding.
the arbitration, the NFLPA and Elliott discovered
Roberts's conclusions that Thompson's accusations
were incredible, inconsistent, and without corroborating
evidence to sufficiently support any discipline against
Elliott. (Dkt. #2, Exhibit 13 at 143:5-8, 172:21-24,
173:9-22, 175:4-19 (Aug. 29, 2017); Dkt. #2, Exhibit 13 at
301:23-302:4 (Aug. 30, 2017)). Further, the NFLPA and Elliott
learned that Commissioner Goodell had a meeting with Friel
and outside advisors, from which Roberts was excluded.
Following this revelation, the NFLPA asked Henderson to
compel Commissioner Goodell to testify to determine whether
critical facts were concealed from Commissioner Goodell
during the decision-making process; however, the arbitrator
denied the request. (Dkt. #2, Exhibit 13 at 348:18-349:15
(Aug. 30, 2017)).
August 31, 2017, the three-day arbitration concluded.
Henderson announced he would issue a decision shortly after.
On September 1, 2017, the NFLPA, on behalf of Elliott, sued
the NFL seeking vacatur of Henderson's impending decision
based on the factual scenario presented in this case.
Further, the NFLPA, on behalf of Elliott, filed this
emergency motion for a temporary restraining order or
preliminary injunction, due to the fast-approaching NFL
season (Dkt. #5). On September 5, 2017, after suit was filed,
and during the Court's hearing on Petitioner's
motion, Henderson affirmed Commissioner Goodell's
six-game suspension of Elliott.
Rule 65 of the Federal Rules of Civil Procedure,
“[e]very order granting an injunction and every
restraining order must: (a) state the reasons why it issued;
(b) state its terms specifically; and describe in reasonable
detail . . . the act or acts restrained or required.”
Fed.R.Civ.P. 65(d). A plaintiff seeking a temporary
restraining order must show: (1) a substantial likelihood of
success on the merits; (2) a substantial threat that
plaintiff will suffer irreparable harm if the injunction is
not granted; (3) the threatened injury outweighs any damage
that the injunction might cause the defendant; and (4) the
injunction will not disserve the public interest. Nichols
v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008).
NFLPA asks this Court to issue a temporary restraining order
or a preliminary injunction to maintain the status quo until
a decision on the merits of the petition for vacatur can be
decided. The NFL argues that this Court lacks subject matter
jurisdiction to hear the case. The NFL further asserts that
even if the Court does have jurisdiction, the elements are
not met for a preliminary injunction. Before the Court can
address the preliminary injunction's merits, the Court
must address its subject matter jurisdiction.
Subject Matter Jurisdiction
argues the Court lacks jurisdiction over the case for three
reasons: (1) the Court cannot vacate a hypothetical award
under any statutory scheme; (2) the NFLPA does not have
standing to assert a petition for vacatur before an award is
issued; and (3) the claim is not ripe until Henderson issues
the award. The Court will address each argument in turn.
Vacatur of Hypothetical Award
contends that no statute provides the Court with jurisdiction
to review a hypothetical award. Specifically, the NFL claims that
the Federal Arbitration Act (“FAA”), the Labor
Management Relations Act (“LMRA”), and the
Norris-LaGuardia Act (“NLGA”) prevent the Court
from having jurisdiction in this case.
hearing, both parties agreed that the FAA does not confer
jurisdiction to the Court, and jurisdiction derives from the
LMRA. Therefore, the Court will focus on the NFL's
argument concerning the LMRA. The NFL maintains that, under
the LMRA, federal courts do not have jurisdiction over a
violation of a collective bargaining agreement unless the
employee exhausts the procedures provided for in the
agreement. The NFL asserts that when the agreement provides
for arbitration as a procedure, as it is here, exhaustion
does not occur until the award is final and complete. The NFL
contends that NFLPA did not properly exhaust its remedies
because the NFLPA filed its suit before Henderson issued his
final arbitration award. Therefore, the NFL argues that the
Court does not have jurisdiction over the NFLPA's claim.
federal court to maintain jurisdiction over the alleged
breach of a collective bargaining agreement, an LMRA
“claim must satisfy three requirements: (1) a claim of
a violation of (2) a contract (3) between an employer and a
labor organization.” Carpenters Local Union 1846 of
United Bhd. of Carpenters and Joiners of Am., AFL-CIO v.
Pratt-Farnsworth, Inc., 690 F.2d 489, 500 (5th Cir.
1982). As long as these three requirements are met an
individual can sue for breach of the collective bargaining
agreement. DelCostello v. Int'l Bhd. of
Teamsters, 462 U.S. 151, 163 (1983) (citing Smith v.
Evening News Ass'n, 371 U.S. 195 (1962)). Here, the
NFLPA alleges a violation of a contract, the CBA. The CBA was
entered into by the NFLPA, a labor organization, and the NFL,
is correct that an individual is generally required to
exhaust, or at least attempt to exhaust, any remedies
provided for in the collective bargaining agreement before
filing suit in a federal court. However, the Supreme Court
and the Fifth Circuit have recognized exceptions to this
exhaustion requirement. Id. (first citing Rep.
Steel Corp. v. Maddox, 379 U.S. 650 (1965); then citing
Clayton v. Auto. Workers, 451 U.S. 679 (1981));
Glover v. St. Louis-San Francisco Ry. Co., 393 U.S.
324, 328 (1969); Bache v. AT&T, 840 F.2d 283,
288 (5th Cir. 1988). The Fifth Circuit identified that
exhaustion is not required if:
(1) the union wrongfully refuses to process the
employee's grievances, thus, violating its duty of fair
representation; (2) the employer's conduct amounts to a
repudiation of the remedial procedures specified in the
contract; or (3) exhaustion of contractual remedies would be
futile because the aggrieved employee would have to submit
his claim to a group “which is in large part chosen by
the (employer and union) against whom (his) real complaint is
Rabalais v. Dresser Indus., Inc., 566 F.2d 518, 519
(5th Cir. 1978) (quoting Glover, 393 U.S. at 330)
(citing Vaca v. Sipes, 386 U.S. 171 (1967);
Boone v. Armstrong Cork Co., 384 F.2d 285 (5th Cir.
1967)); accord Wardlow v. Ark. Best Corp., 261 F.3d
138, 141-42 (5th Cir. 1959); McNealyv.
Becnel, No. 14-2181, 2017 WL 2313143, at *8 (E.D. La.
May 26, 2017). The Court focuses on the second exception to
the exhaustion requirement: “when the employer's
conduct amounts to a repudiation of the remedial procedures
specified in the contract.” Rabalais, 566 F.2d
at 519 (5th Cir. 1978) (quoting Glover, 393 U.S. at
330). A repudiation “occurs when a party's conduct
‘shows a fixed intention to abandon, renounce, and
refuse to perform the ...