Sports Law Blog
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Thursday, September 21, 2017
Decision Time in College Athletics: Are College Athletes Students or Employees?

Deservedly, college athletics has been under assault the past several years. Most of the criticism has been directed at calling out the hypocrisy of this multi-billion-dollar industry in allowing all associated with it the opportunity to extract every penny they can, except the college athletes producing the product.

Lawsuits, boycotts, unionization efforts, and advocacy groups call for greater compensation—be it salaried or merely the rights of athletes to control their own names, images, and likenesses. And while the compensation issue isn’t going away anytime soon (see O’Bannon v NCAA and Jenkins v NCAA) another more disturbing debate is now the topic du jour this year—NCAA transfer rules. The spotlight is on these rules as word leaked that the NCAA is considering modifying the existing guidelines for transfers.

The NCAA places significant restrictions on the ability of college athletes to move from school to school. Once a student signs a National Letter of Intent to attend an institution, they are bound to that school. This contract of adhesion is deeply flawed for the students—who can neither negotiate the terms nor, for the most part, compete without signing one. And while this commitment is something schools and coaches who enforce these contracts hold in high regard, it is not reciprocal. Coaches make promises to recruits about their loyalty to an institution all the time and then, even under contract, jump to other schools deemed to offer better career prospects.

There is no shame in moving from one opportunity to another—we all do it. More money, higher profile, it’s part of the “American dream.” However, if a student wants to leave one school for another, coaches and college administrators are swift and vocal in their claims of betrayal and breach of contract. And, let’s be clear, in the end the vitriol against students’ transferring is based not on some version of loyalty but on the ability of management to control labor’s movements.

In business, there’s a simple way to ensure employees don’t move around in ways that destabilize a company; employment contracts include “non-compete” clauses all the time. “But wait” you say, “college athletes (at least according to the NLRB’s flawed decision) aren’t employees.” EXACTLY, that’s the point.  If college athletes aren’t employees then they should be able to transfer without restrictions. If they are employees, then they have a right to unionize and negotiate better terms of employment.

The NCAA’s response is always “but we’re maintain the time-honored tradition of amateurism.” However, other than clinging to this antiquated definition of amateurism which the evolution of college athletics has demolished, there is no logical rationale for this dichotomy. Either freedom of movement should be allowed, or these restrictions must be balanced with some other benefit—like compensation in some form.

Finally, what makes the debate all the most duplicitous is that the most ardent advocates against “free agency” for college athletes are coaches who, without fail, jump from opportunity to opportunity leaving students, fans, and others behind to redefine their version of loyalty.

Sunday, September 10, 2017
NFL Faces Uphill Battle in Obtaining "Emergency Stay" from Fifth Circuit

The next legal front in the NFL vs. NFLPA battle over Ezekiel Elliott's 6-game suspension is expected to open this week (perhaps as soon as Monday), when the NFL files its notice of appeal of Judge Mazzant's preliminary injunction ruling. But that act alone will not jeopardize Elliott's playing status for the 2017 NFL season. Federal appeals often take many months to resolve. And the Fifth Circuit (which hears appeals originating from lower federal courts in Texas, Louisiana and Mississippi) is no exception. According to recent federal court management statistics, the average duration of an appeal in the Fifth Circuit is 8.8 months (measured from the date of the filing of a notice of appeal to its ultimate disposition). By that measure, it could be April or May at the earliest before there is a final decision on the NFL's appeal. And even if the appeal were "expedited" (which either party could request on a showing of "good cause"), the appeal would likely still be pending (meaning unresolved) at the end of the 2017 NFL season. This is because even expedited appeals (like all appeals) still require a full briefing on the merits--which would entail the filing of an opening brief, an answer brief, and a reply brief (spaced out over a period of many weeks), an oral argument before a three-judge panel, and, ultimately, a written decision which could take weeks to finalize. It is unrealistic--and next to impossible--to expect all that to be accomplished by January.

But there is one procedural vehicle that the NFL could still use to reinstate Elliott's suspension THIS year. Once it files its notice of appeal, the NFL could ask the Fifth Circuit to "stay" Judge Mazzant's preliminary injunction pending the outcome of the appeal. In other words, the NFL would ask the Fifth Circuit (and Judge Mazzant before that) to prevent the injunction from going into effect for the entire duration of the appeal. Such a maneuver, if successful, could lead to an immediate reinstatement of Elliott's suspension and force him to sit out six games this season. But under the appellate rules, the NFL would first have to ask Judge Mazzant for a stay before it could properly present an application for similar relief to the Fifth Circuit. And, of course, Judge Mazzant is unlikely to stay his own injunction, especially not after concluding that Ezekiel Elliott faces "immediate" irreparable harm from the NFL's disciplinary action. Once Judge Mazzant denies that request (assuming that it is even made--remember, the NFL opted not to seek an emergency stay of the Deflategate lower court decision), the focus would then shift to the Fifth Circuit, perhaps as soon as this week, leading to another frenzied round of briefing (and another court ruling) prior to Week 2 of the NFL season. 

But such a gambit is not likely to succeed. In order to obtain a stay of a lower court order pending appeal, an applicant (here, the NFL) must show four things: (1) a likelihood of success on the merits of the appeal; (2) that "irreparable harm" will befall the NFL in the absence of a stay; (3) that comparatively little harm  will be suffered by the other parties (e.g., the NFLPA and Elliott) if the court issues the stay; and (4) that a stay would benefit the public interest. See Voting for America, Inc. v. Andrade, 488 Fed. Appx. 890, 893-94 (5th Cir. 2012) ("The standards governing a stay are well established: '(1) whether the applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.'") (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d (1987))

If these standards seem familiar, it is because they are essentially the same requirements which governed the issuance of the preliminary injunction. Indeed, in the Andrade case, the Fifth Circuit acknowledged that "[t[he factors to be considered in deciding whether to stay an order pending appeal are virtually the same as the factors used by a court in deciding whether to issue a preliminary injunction." Id at 894. But just because a preliminary injunction was issued to Elliott, that does not necessarily mean that the NFL has a good chance (or even a "puncher's chance") of securing a stay of the injunction pending appeal. As numerous federal courts (including the Supreme Court) have repeatedly cautioned, a stay pending appeal is an "extraordinary remedy" that should be granted only in "extraordinary circumstances."  See Williams v. Zbaraz, 442 U.S. 1309, 1311, 99 S.Ct. 2095, 2097, 60 L.Ed.2d (1979) ("Stays pending appeal are granted only in extraordinary circumstances."); Andrade 488 Fed. Appx. at 895 ("A stay pending appeal is an 'extraordinary remedy.'"); Archer & White Sales, Inc. v. Henry Schien, Inc., 2017 WL 661768, at *1 (E.D. Tex. Feb. 17, 2017) ("Under Fifth Circuit law, the stay of a case pending appeal constitutes 'extraordinary relief.'" (quoting Reading & Bates Petroleum Co. v. Musselwhite, 14 F.3d 271, 275 (5th Cir. 1994))

In my view, the NFL faces a nearly insuperable obstacle in securing an emergency stay: the lack of irreparable harm (element #2). While we can all reasonably debate which of the two sides is more likely to ultimately succeed on the merits of the appeal (me: the NFLPA), what is incontestable here is the absence of any "irreparable harm" to the NFL. That element and the 'balancing of the harms' (the third requirement) play out decidedly in Elliott's favor on a motion for a stay pending appeal. As a professional athlete with a relatively short career  span (as compared to most conventional occupations), a suspension of even a short duration (which six games is not) would constitute "irreparable harm" to Elliott. The federal courts have repeatedly acknowledged that professional athletes have a limited time to ply their trade and that improper suspensions constitute the requisite "irreparable harm" that would support the issuance of a preliminary injunction.

Judge Mazzant's "irreparable harm" analysis underscores the difficult task awaiting the NFL should it decide to seek an emergency stay from the Fifth Circuit. In the portion of his opinion addressing "irreparable harm," Judge Mazzant concluded that Elliott "is likely to suffer irreparable harm if he is improperly suspended based on a fundamentally unfair arbitration proceeding." He explained:
Elliott is faced with missing six games, which is a large portion of the NFL's season, and potentially deprived Elliott of the ability to achieve individual successes and honors. . . . The 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 Court joins the long line of cases that have previously held that improper suspensions of professional athletes can result in irreparable harm to the player. Nat'l Football League Players Ass'n v. Nat'l Football League, 598 F. Supp. 2d 971, 982 (D. Minn. 2008) ("Williams") (citing Jackson, 802 F. Supp. 226, 230-31 (D. Minn. 1992); Brady v. NFL, 779 F. Supp. 2d 992, 1005 (D. Minn. 2011), rev'd on other grounds, 644 F.3d 661 (8th Cir. 2011); Prof'l Sports Ltd. v. Va. Squires Basketball Club Ltd., 373 F. Supp. 946, 949 (W.D. Tex. 1974)

By contrast, Judge Mazzant reasoned, the NFL would not suffer any irreparable harm from the issuance of a preliminary injunction. He rejected as "unpersuasive" the NFL's argument that the "agreed-upon internal procedure" for resolving disciplinary appeals (as contained in Article 46 of the CBA) would be "eviscerated" by an injunction in this case:
While the NFLPA and NFL have an agreed-upon procedure, that procedure is intended to be one of fundamental fairness. Given the current set of facts, an injunction does not eviscerate the internal procedures of the NFL and NFLPA but merely ensures the internal procedures are being carried out in the appropriate manner. Both the NFL and the NFLPA "have an interest in ensuring that the suspensions meted out under the [Personal Conduct Policy] are not tainted by [fundamental unfairness] and wrongdoing." Williams, 598 F. Supp. 2d at 983. Therefore, the Court finds that the NFLPA showed the balance of hardships weighs in favor of granting an injunction.
Further, while left unsaid in Judge Mazzant's order, the reality here (and a far more important point) is that the NFL can always impose a six-game suspension on Elliott at a later date (such as next year) were it to eventually prevail on appeal in the Fifth Circuit. Indeed, Commissioner Goodell's August 11, 2017  letter informing Elliott of his six-game suspension does not expressly provide for it to begin "on" or "by" a specific date--only that it would be six total games in duration. ("You are hereby suspended without pay for six (6) regular season games, subject to appeal"). In other words, the league will eventually get its "pound of flesh" from Elliott (assuming, of course, that it wins on appeal). By contrast, Elliott will never get back the "lost" six games if a stay were entered, the suspension reinstated and served during the appeal, and then the Fifth Circuit affirms Judge Mazzant's order. While the powers of a federal judge are vast and all-encompassing, they are not so powerful as to enable "time travel." No federal judge has the power to turn back time--literally. Once those games are gone, they are gone forever, and Elliott will never get them back. Based solely on the irreparable harm issue (and the related 'balancing of harms' inquiry), Elliott and the NFLPA should be able to successfully forestall any attempt by the NFL to obtain a stay of the preliminary injunction pending appeal.

But if the Fifth Circuit disagrees and enters a stay, it could be a true "game-changer." The second one in a week. And it would potentially (and likely) signal the Fifth Circuit's eventual decision on the merits of the appeal: principally, that the NFL will prevail on appeal. To be sure, if the Fifth Circuit enters a stay pending appeal, it is basically saying two things: (1) that the harm to the NFL from an injunction remaining in effect is greater than the harm to Elliott from having to serve a six-game suspension (even if he were to later win on appeal); and (2) the NFL will likely prevail on appeal (the more important take-away of the two). That's why this week--even more so than Judge Mazzant's ruling on Friday night--may ultimately determine Elliott's fate for the 2017 NFL season. While it would be a surprise to me (as well as the wrong decision) if a stay were issued here, if we have learned anything from the Elliott, Brady and Peterson legal sagas it's that--just like in a football game--there are frequent momentum shifts and that today's inspiring victories could soon become tomorrow's crushing defeats. While I don't expect that to occur in the Elliott case, there is always that possibility as his case ascends the judicial ladder. And we could get an early preview as soon as this week.

--- Daniel Wallach

Saturday, September 02, 2017

In biblical times, Ezekiel had a vision of interlocking wheels and prophesied the tragic destruction of Jerusalem. Ezekiel Elliot, whose wheels have carried him to fame and fortune with the Dallas Cowboys, just might see a more contemporary powerful Kingdom known as Goodell’s NFL succumb to a similar fate.

Some thought Goodell and the NFL would learn from its mistakes in Deflategate. After all, but for his Hail Mary to the Second Circuit, things looked mighty grim for the Commissioner after Judge Berman’s decision in the District Court. But instead the NFL was so emboldened by its ultimate victory over the best quarterback in the league, it doubled down in imposing the six game suspension on the game’s top running back. Quite a marketing plan.

It’s not just that the investigation involved the actions of Mr. Elliot while he was technically still a college athlete and had not yet signed an NFL contract. It’s not just that the authorities investigating the incident at the time, when the facts were fresh, could not come to any conclusion one way or the other that wrongdoing had occurred.

In this case, the NFL assigned Kia Roberts alone the task of interviewing the complaining party and Ms. Roberts, a former New York Assistant District Attorney hired to be the NFL’s Director of Investigations, did not believe a suspension was warranted. The NFL did not ask for Ms. Roberts’ recommendation and, among other procedural missteps, did not give Mr. Elliot and his counsel the opportunity to confront the accuser, a basic tenet of due process. 

The NFL did think that, by appointing Mr. Henderson to serve as the arbitrator instead of Mr. Goodell, it would eliminate any criticism that the Commissioner was cop, judge, jury and executioner. But Mr. Henderson, always a company man, was anything but an independent decision maker. Had they chosen someone outside the NFL cabal, they might have stood a better chance of not having the suspension suspended and ultimately revoked. But then, that independent arbitrator may have decided differently.

Curiously, and as our colleague Dan Wallach predicted, Mr. Elliot and the NFLPA filed a petition to overturn the suspension in a Texas Federal District Court, a thousand or so miles from the Second Circuit’s jurisdiction, before the arbitration process was concluded, getting the jump on the NFL which had first filed against Brady the moment it was issuing its final ruling. 

This time the argument may not be limited to this or that procedural defect at the arbitration, which allowed the Second Circuit to reverse what was surely Judge Berman’s correct result, considering there was actually no competent evidence that any footballs were deflated. Here, as well as in Deflategate, it is the ruling itself that is the best evidence that something is surely amiss in the manner in which the NFL conducts its arbitrations and disciplines its stars.