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Opinion: Elliott Case Shows NFL Hasn't Learned

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Copyright 2017 Dayton Newspapers, Inc.

Dayton Daily News (Ohio)

 

Ezekiel Elliott, the NFL's rushing leader in 2016, is seeking to have his suspension thrown out.

Harold Henderson didn't allow Ezekiel Elliott the opportunity to face his accuser while the Dallas Cowboys star appealed his domestic violence suspension. Nor did Henderson, the Roger Goo-dell-assigned arbitrator for the case who once headed the NFL's management council, even allow for notes of investigators to be submitted into the record.

Yet for all of his ties to the NFL's labor apparatus, Henderson is not exactly Dr. No.

Henderson did permit the testimony of Kia Roberts, the NFL's lead investigator in the case. And Roberts' testimony - including the conclusion that she was not on board with a suspension, because of credibility issues with the accuser - is the smoking gun that the NFL Players Association hopes will make a huge difference for Elliott's case.

While multiple reports raised questions about the accuser's credibility - and the NFL admitted upon announcing the six-game suspension on Aug. 11 that the accuser lied in contending she was yanked from a car by Elliott - the revelations linked to a figure as key as Roberts is an essential component to the federal lawsuit the NFLPA filed to vacate the suspension.

Here we go again. Another NFL vs. NFLPA court battle to kick off the season, the fifth time in six years that some major legal drama dampens the Week 1 buzz.

The NFL has an almost ironclad advantage when it comes to disputes involving Goodell's broad power for dishing out discipline, as Tom Brady can attest. The commissioner's power is spelled out in Article 46 of the labor pact, which the players have agreed to in one form or another for more than a half century.

Courts typically don't supersede what has been negotiated through collective bargaining. Yet, given semantics and interpretation, the NFLPA is undoubtedly hoping this will be the landmark case that wins against long odds because that very labor deal references "credible evidence" as part of a fair process.

The NFL, in crafting and executing its own personal conduct and domestic violence policies, has its own investigative wing, which flows into Goodell's justice system. The Elliott case, though, illustrates how difficult it can be to pull off its own investigative branch (with no subpoena power) for the purpose of feeding a credible system for discipline. It might sound good on paper, but the NFL looks silly trying to run its own court system without allowing for a fair process that includes basics such as the accused facing his accuser or a legitimate discovery process.

With the union's surprise move of going to court before a decision was rendered on the appeal, there's material already part of the public record that allows for serious Monday morning quarterbacking of whatever ruling comes from Henderson.

This probably won't influence Henderson's professional approach to handling the high-profile case, but it seemingly adds more layers of pressure as details of the inner workings of the NFL discipline process have been exposed - and are ripe for second-guessing.

Henderson's ruling is expected to come as early as Monday; a hearing is set for Tuesday regarding Elliott's request for a temporary restraining order that would halt the suspension until legal options are exhausted.

It's a he said/she said case, with the NFL essentially maintaining photographic evidence outweighs Elliott's claim of innocence amid multiple theories of how and when the accuser was bruised.

According to the NFLPA's federal court petition, Roberts' opinion about Elliott's accuser was silenced - or seriously muffled - as she was not involved in meetings with the outside panel of consultants the NFL tapped or with Goodell, who levied the suspension. It was Lisa Friel, NFL senior vice president and special counsel for investigations, who recommended a suspension, who was involved in the key meetings that excluded Roberts.

Friel and Roberts were co-authors for the 130-page NFL report into the matter.

Imagine if Henderson had not allowed Roberts to testify at the three-day appeals hearing. What if Henderson had pulled a Goo-dell and taken Friel's word for the case's essentials rather than hearing concerns from the source?

It appears rather than seeking a victory as the NFL and NFLPA attorneys are so hyped to do in these situations, Henderson is seeking the truth about the process, if not the bigger picture.

The NFL contends Goodell was aware of Roberts' opinions as he decided to suspend Elliott. Maybe so. But that only carries so much weight, given the eroded trust in the NFL's judicial process. Why wouldn't Goodell want to hear from the woman who interviewed the accuser?

Has Goodell not learned from Ray Rice, Bountygate, Deflate-gate, Adrian Peterson and Josh Brown? It was a 13-month investigation with Elliott. Enough time to break through any internal walls and carve out time with the lead investigator. That's common sense, Roger. There's no need to be sloppy with it.

In the real world of justice, it is not uncommon for prosecutors and investigators to disagree on whether to pursue cases. That might apply here, too.

Yet in this case, it's clear that if Roberts' voice was previously silenced, suddenly it now packs more punch than ever.

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September 3, 2017
 
 
 

 

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