On Tuesday, Ezekiel Elliott will begin the uphill battle to appeal the six-game suspension he was handed by the NFL over allegations of domestic violence.
The biggest issue for Elliott and his legal team is that the NFL arbitration process is not like a typical courtroom appeal.
“In the judicial form, appeals are somewhat confined factually,” Becker & Poliakoff sports attorney Daniel Wallach told The Post. “But in the NFL’s appeals procedure in connection with player discipline … [it] is a hybrid of an appeal/evidentiary hearing.”
The NFL’s procedure does not include many of the niceties afforded by courtroom evidence rules such as upholding Sixth and Seventh Amendment rights, including the right of the accused to confront his accuser.
This is because the NFL does not have the authority to compel any outside witness to appear for testimony, nor does it have to provide equal access to all of the evidence.
For Wallach, this lack of authority “underscores a systemic flaw in the NFL’s arbitration process when it attempts to intrude into the area of what is normally a law enforcement or judicial prerogative.”
It also puts Elliott and his legal team at a big disadvantage.
“In some ways, Elliott attorneys are basically going to be trying this case with one hand tied behind their back without the accuser in court and without the notes of the NFL’s interview with [the accuser],” Wallach said. “In most courtroom trials, you want to create a level playing field, in that both sides have equal access to the evidence, but in the NFL, there is no such thing.”
This is perhaps one of the biggest reasons Wallach said he believes “everybody knows the writing is on the wall here.”
Wallach said he believes Elliott’s appeal eventually will be taken to court because the winner of the appeal process “is going to run to federal court to confirm the arbitration.”
Thanks to the Deflategate ruling being upheld in 2016, Elliott will have to continue fighting an uphill battle, even in the courtroom. The ruling in the Deflategate appeal, according to Wallach, “reaffirmed that the arbitrators have the power to make evidentiary rulings, as well as to determine facts, and the court will not second- guess the arbitrators” barring some type of unusual circumstance.
However, Wallach said he believes Elliott is in a better legal position than Tom Brady was because of the evidence the Cowboys running back was denied.
“That evidence is so material and important to the arbitration that you’re basically keeping the most important counter-evidence from him,” Wallach said. “And that could be the basis on which a federal court intervenes and vacates the arbitration.”