Sunday, November 12, 2017

Sunday Without Zeke: Here’s Why

The following is quoted from the October 30th ruling in the Zeke Ellliott case (where the NFL imposed a six game suspension on the star running back and an arbitrator upheld the ruling). The court, in this ruling, granted Elliott an emergency “stay” to allow his case to be reviewed by a federal appeals court (which happened this past Friday).
Readers can judge for themselves. For context, Elliott had an intimate relationship at the time of events with a woman named Tiffany Thompson. Her allegations, and Elliott’s denials, amount to a she-alleges, he-denies dispute that took place under intimate and private circumstances, where no one else could be a witness.
My opinion? There’s about as much evidence to support the charges against Elliott as there are victim accounts of Harvey Weinstein’s abuse and assaults, which are credible. Unless there is a video of these events, we’re never going to get proof-positive. In this case, the clearest evidence against Elliott is medical and photgraphic evidence of Ms. Thompsons shortly after the alleged assaults occurred. See the picture above. That’s good enough for me. NFL players union, if you are going to take a stand against Trump and racial injustice, don’t be hypocrites by throwing Tiffany Thompson under the Cowboys' team bus.

…. [quoting court opinion)

In July 2016, the Columbus (Ohio) Police Department investigated claims by Tiffany Thompson, with whom Elliott had previously had an intimate relationship, that Elliott had physically abused her on five occasions during the week of July 16, 2016. By July 22, 2016, law enforcement officers investigating Thompson's allegations had concluded that there was insufficient evidence to establish probable cause to arrest Elliott, due to conflicting accounts of the underlying facts. The Columbus City Attorney's Office then investigated the allegations but declined to charge Elliott, citing “conflicting and inconsistent information ... resulting in concern regarding the sufficiency of the evidence to support the filing of criminal charges.”
The NFL's director of investigations, Kia Roberts, and the NFL's Special Counsel for Investigations, Lisa Friel, conducted a separate investigation into the allegations, with Roberts conducting a majority of witness interviews over the course of the investigation.
This investigation resulted in a report that the NFL issued on June 6, 2017 (id. at Ex. A-44); the NFL then held a meeting on June 26, 2017, during which Friel presented the findings of the report to Elliott, his agents, and the NFLPA. The Commissioner also ordered that an advisory panel be present.
During this meeting, upon questioning by Mary Jo White, one of the Commissioner's advisors, Friel represented that only one of the alleged instances of abuse leveled by Thompson had been found to be not credible. As the NFLPA points out in its briefing, Roberts was not present at the meeting, and the report did not include any investigators' conclusions drawn from the evidence. (Id. at 3; see, e.g., NFLPA Br. 5-6). The NFLPA responded to the report on July 17, 2017, pointing to evidence in the NFL's report undermining Thompson's credibility and offering alternative explanations for certain facts, including the bruises that had been photographed on Thompson's body. (See Kessler Decl., Ex. A-48).
3. The NFL's Discipline of Elliott Pursuant to the CBA
After the NFL's June 2017 meeting, on August 11, 2017, the NFL notified Elliott that the Commissioner was exercising his power under Article 46 of the CBA to suspend Elliott without pay for the first six games of the 2017 NFL regular season for using “physical force against a woman in the context of an intimate relationship.” Specifically, the Commissioner found that Elliott had “used physical force against Ms. Thompson resulting in her injury” on three out of the five alleged instances of abuse during the week of July 16, 2016. (Id.).

The Commissioner based this finding “on a combination of photographic, medical, testimonial and other evidence” that the Commissioner considered “sufficiently credible ... to establish the facts, even allowing for concerns ... about [Thompson's] credibility.” (Id. (emphasis added [by the court)).
On August 15, 2017, the NFLPA appealed Elliott's suspension pursuant to Article 46 of the CBA. (Kessler Decl., Ex. A-50). The Commissioner designated Harold Henderson to serve as arbitrator for Elliott's appeal.
Before the arbitration, the NFLPA requested that the NFL (i) produce documents related to the Thompson interviews, including investigative notes, and (ii) compel Thompson, Friel, and Roberts to testify at the arbitration hearing.
The NFL rejected almost all of the NFLPA's requests, agreeing only to provide Friel's testimony. (Id. at Ex. A-52, A-54). After a telephonic hearing, Henderson denied the NFLPA's request for the production of documents and for Thompson's testimony; acknowledged that the NFL would make Friel available to testify; and further ordered the NFL to make Roberts available to testify. (Id. at Ex. 55).
From August 29 through 31, 2017, Henderson held the arbitration hearing. At the hearing, Roberts testified that she “had concerns about [Thompson's] Credibility” due to contradictory statements by other witnesses, including Thompson's friends.
Significantly, however, she stated that “[a]ny concerns, any inconsistencies were completely put into the [NFL's] report,” and that she shared her concerns with Friel and other NFL investigators, including her superior, Cathy Lanier. (Id. at 163:11-165:16, 172:21-173:22, 174:7-11 (Aug. 29)).
Friel acknowledged during her testimony that Roberts had “express[ed] the view internally that ... there was not sufficient” corroborating evidence of Thompson's allegations. (Kessler Decl., Ex. C at 301:22-302:2 (Aug. 30)). Friel also testified that before the Commissioner decided to impose discipline, Friel informed him that she (Friel) found the evidence sufficient to impose discipline, but that she was unsure whether Roberts “met with the Commissioner to give [her] views about the sufficiency of the evidence.” (Id. at 322:21-25, 338:23-339:5 (Aug. 30)).
When asked whether she told the Commissioner “specifically that Ms. Roberts had expressed the view that the corroborating evidence was insufficient to proceed,” Friel replied that she could not “recall whether it was stated in those words”; later, she clarified that “[t]he Commissioner was told ... that Kia Roberts did not think that we had enough for a violation,” and that her earlier equivocation “had more to do with the exact language of [‘]insufficient evidence[’].” (Id. at 324:8-13, 336:8-12, 338:8-17 (Aug. 30)).4 Friel testified further that the NFL Report excluded any investigator's recommendation as to whether Elliott violated the PCP as the result of a decision she reached “in conjunction with counsel”; the decision was that, due to the voluminous report, she “thought the Commissioner would be better served by ... a report that laid out all that evidence.” (Id. at 265:10-266:17 (Aug. 30)).
Elliott testified at the hearing and denied any acts of abuse against Thompson. He also produced a witness, Alvarez Jackson, who was present in Elliott's apartment during the relevant time period and testified that he did not see any signs of, nor hear any complaints of, abuse by Thompson. The NFLPA also presented expert evidence in an attempt to discredit photos of Thompson's alleged injuries. (Id. at 91-132 (Aug. 29)). During the hearing, the NFLPA demanded, for the first time, that the arbitrator compel the Commissioner to testify so that the arbitrator could determine whether he should defer to the Commissioner's factual findings, as the NFL argued he should. The arbitrator declined the request to compel.
On September 5, 2017, the arbitrator issued an award affirming the six-game suspension, finding “that the record contains sufficient credible evidence to support” the Commissioner's determinations. (Kessler Decl., Ex. H). The award's analysis begins by noting that although both Friel and Roberts “expressed surprise that they were not asked to make a recommendation on discipline based on their investigation and report,” and “Roberts could not explain why she was not invited to participate in the” June 2017 meeting, “their roles fit squarely into the process outlined” in the PCP. (Id.). The award notes that despite the NFLPA's claim that Friel's and Roberts's testimony revealed “new evidence” regarding Thompson's credibility that was material to the Commissioner's decision, “all the statements and inconsistencies [undermining her credibility were] included in the Investigative report and other materials provided to the Commissioner for his review.” (Id.). Furthermore, Friel's and Roberts's “recommendations were not sought or required at that point, pursuant to” the PCP. (Id.).

The arbitrator then set forth the standard he was to apply as the Commissioner's designated Hearing Officer: “[M]y responsibility is to determine whether the Commissioner's decision on discipline of Mr. Elliott is arbitrary and capricious, meaning was it made on unreasonable grounds or without any proper consideration of circumstances.” (Kessler Decl., Ex. H). The arbitrator clarified further that his review was limited to “determin[ing] whether the player was afforded adequate notice of his alleged violation, the right to representation, opportunity to present evidence, and a decision which is fair and consistent,” i.e., “whether the process and result were in compliance with the terms of [NFL] policy.” (Id.). Finding that the record satisfied that standard, the arbitrator affirmed the Commissioner's determination and denied the appeal. 

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