At 2:00 p.m. tomorrow, the Second Circuit will hear arguments on a motion from the NFL Players Association (NFLPA) to stay pending appeal Cowboys running back Ezekiel Elliott’s six-game suspension arising from a domestic violence incident. Judge Failla refused to preliminarily enjoin the suspension, but the Second Circuit granted an administrative stay so it could consider whether to issue a stay pending appeal.
The NFLPA’s brief argues that the case “presents the starkest possible case for irreparable harm”:
Professional football players, and running backs in particular, have an average career span of less than 4 years. Given the very limited window in which these athletes can practice their profession, the ever-looming threat of injury, and the ruthlessly meritocratic link between on-field performance and pay, courts have consistently concluded that professional athletes suffer irreparable harm when threatened with a potentially wrongful suspension.
The NFL responds that it is “untenable” to effectively argue that “every case involving an NFL player’s suspension necessarily involves irreparable injury,” and further argues that the labor laws “cannot mean one thing for professional athletes and another for every other employee”:
Courts have soundly rejected such a distinction, and for good reason, as “players return routinely from extended absences due to injury or suspension on other grounds to play and to play well.” Such a rule would also subvert the streamlined procedures negotiated in the CBA. In the past season and a half alone, roughly 100 players have been suspended for approximately 500 games. Elliott’s claim of irreparable injury is indistinguishable from those that could be made by 100 other players. . . .
Moreover, as the district court correctly recognized, the injuries the NFLPA asserts are “not insubstantial,” but neither are they irreparable in the relevant sense. Lost compensation is readily remediable through monetary damages; the harms related to personal awards, team performance, and injury risk are highly speculative . . . [a]nd “the everlooming threat of injury” that may shorten a professional athlete’s career is avoided during a suspension because a player is not on the field.
Once the Second Circuit rules, Judge Failla has indicated she will immediately set a schedule for summary judgment.