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Thursday, November 09, 2017
 
The overwhelming effect of stays pending appeal

The Second Circuit denied a stay pending appeal of the denial of an injunction barring suspension of NFL running back Ezekiel Elliott. The court referred to it as an "injunction pending appeal," which is wrong and the improper terminology makes the media reporting on this more confusing than usual.

Tracing the history of this case is a Fed Courts or Remedies problem all its own: 1) Elliott was suspended for six games and an arbitrator upheld the suspension; 2) a judge in the Eastern District of Texas issued a preliminary injunction barring enforcement of the suspension (allowing Elliott to play); 3) the Fifth Circuit reversed, holding that the district court lacked jurisdiction, grounds that were arguably incorrect, although the result was probably right (barring Elliott from playing); 4) the union and player filed suit in the Southern District of New York; 5) a district judge granted a TRO (allowing Elliott to play); 6) the same judge refused to grant a preliminary injunction (barring Elliott from playing); 7) the Second Circuit granted a temporary stay of the denial of the preliminary injunction (allowing Elliott to play) pending fuller consideration of the motion to stay; 8) the Second Circuit today denied a full stay pending appeal, allowing the judgment denying the preliminary injunction to go into effect, meaning the suspension goes into effect and Elliott will not be able to play on Sunday (unless SCOTUS gets involved).

Even more than in the marriage-equality litigation, the stay question dictates the result in these cases. Although the Second Circuit granted expedited appeal, it is not clear that the case will be resolved before Elliott has missed six games. The question is the weight the likelihood-of-success prong bears in these cases--it is hard to overturn an arbitrator's decision, so Elliott was not likely to succeed in having the denial of the injunction reversed. And that may have convinced the court of appeals there was no irreparable harm in having the suspension take effect.





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