After the Ezekiel Elliott Suspension, Can You Trust the NFL's Process?

Domestic violence investigators kept Roger Goodell at bay, sources tell B/R Mag. Now, insiders and experts say, comes the real test: Either the Cowboys scandal is a precedent—or part of the problem.
Mary PilonContributor IAugust 14, 2017

The sports world went into a frenzy over the weekend, as soon as the NFL released the damning conclusion of its yearlong investigation into Dallas Cowboys running back Ezekiel Elliott: a six-game suspension for domestic violence allegations—the first high-profile suspension of its kind since Ray Rice in which the league's stated disciplinary policy was considered a baseline rather than an extreme.

But the NFL's response was missing something big: Commissioner Roger Goodell, perhaps the most powerful person in American sports.

People familiar with the league's Elliott inquiry tell B/R Mag that keeping the commish at a distance was paramount. Not only because of the star power of the accused or the outsize influence of Cowboys owner Jerry Jones. From the outset, these officials insist, NFL investigators knew their methods would face more scrutiny than their results.

"In the Ezekiel Elliott case," a person familiar with the matter says, "they turned over every stone."

Nearly 13 months, thousands of texts and phone calls and a 160-page report later, domestic violence experts and those close to Goodell are still wondering: Has the Elliott scandal started a new era of more consistent punishment, one dedicated to due process and not just viral videos? Can the league fend off its commissioner, even as he makes the ultimate call on suspensions that anger the owners he serves? And when it comes to violence against women, can the NFL enforce its own rules?

   

'Judge, Jury and Executioner' No More?

According to a B/R Mag investigation published earlier this year, the NFL has seldom enforced its full six-game suspension standard for domestic violence. Critics argue the league's three-year-old policy, introduced by Goodell in reaction to the video of Rice's punching his then-fiancee in an elevator, not only takes too long to enforce—even Elliott said investigators were "dragging their feet"—but it also has ended up demeaning the women involved and putting public relations over progress.

If Goodell or owners like Jones are allowed to influence an investigation, the conduct rules "cannot have credibility," says Helen A. Drew, a professor at the University at Buffalo School of Law who has studied the NFL's policies.

"In the past, they've been criticized, and rightly so, for having a response that was knee-jerk and less than considered," Drew says of the NFL. "This time, they took their policy, consulted experts and did it in a considered, deliberate fashion before they pulled the trigger. The only way they can have a modicum of credibility is to hand it to people outside and follow their recommendations."

“The first thing I told Roger Goodell was that he can't be the judge, jury and executioner on these cases," says a professor who has advised the commissioner directly. (Getty Images)

Indeed, officials inside and out of the NFL have complained for years that Goodell's direct involvement in the investigations and disciplinary recommendations of domestic violence cases hurt the credibility of a perceived crackdown. He brought in several high-powered women—including special counsel for investigations Lisa Friel, lead investigator Kia Roberts and vice president of social responsibility Anna Isaacson—to get the league's shop in order, but what good was hiring qualified investigators if he wasn't going to let them do their jobs?

"The first thing I told Roger Goodell was that he can't be the judge, jury and executioner on these cases," says Richard J. Gelles, a sociology professor at the University of Pennsylvania. While he was not directly involved in the league's Elliott inquiry, Gelles has advised NFL representatives on league personnel rule changes. "You have to have a process," he says.

After his meddling in the Rice fiasco, Goodell needed to be kept at bay from an investigation into a Cowboys superstar, the highest-profile test of the six-game-suspension baseline yet. That meant putting together an outside panel of experts who weren't on the payroll of the league, the union or Jones, according to a person familiar with the matter.

So the NFL's team brought in Peter Harvey, the former attorney general of New Jersey; Mary Jo White, former chair of the Securities and Exchange Commission; Tonya Lovelace, CEO of the Women of Color Network; and Ken Houston, former Houston Oilers star and Hall of Famer.

It was an experienced group without a middle-aged, rich white man to be found—a rarity in the upper echelons of sports decision-making, especially in the NFL. The four outsiders met with Elliott in June. Only after Goodell read a transcript of that conversation and talked with all four individually did he decide on a full six-game suspension.

"We certainly did not tell the commissioner what to do," Harvey said Friday on a conference call. But in allowing the four independent outsiders to review side-by-side both the NFL investigators' report and the case Elliott's team made in his defense, the league was sending a message of consistency and group decision-making. "This isn't their first rodeo with this," Gelles says. "He wants to do everything you can to avoid a sanction being overturned on appeal."

Elliott, who was never charged with a domestic violence-related crime connected to allegations that he used physical force against his ex-girlfriend over the course of a week in July 2016, is planning to file an appeal as soon as Tuesday.

A lawyer for Elliott, Michael Meresak, declined to comment and deferred to a statement from Elliott's legal team that said the NFL's findings were "replete with factual inaccuracies and erroneous conclusions." Representatives for the NFL Players Association did not respond to requests for comment.

   

From 'Shadow Tribunals' to the 'CSI Effect'

There are many more details of the Elliott inquiry that have not been made public—contemporaneous photographs key to the NFL investigation and a 911 call from his ex-girlfriend, Tiffany Thompson, surfaced over the weekend—but the Cowboys star is not likely to go quietly, either.

As Stephanie Stradley, a Houston-based attorney who writes about legal issues in football, pointed out in her analysis, the league's "confidential" disciplinary letter to Elliott and the players' union seemed to be written with the risk of future litigation in mind. "Process protections are important," she wrote, adding that if processes seem unfair, they risk undermining the initial cause that is meant to be championed.

However, it isn't always that simple.

"Fairness doesn't exist," Stradley tells B/R Mag. "Life isn't fair. Generally, I'm very reluctant for employers to create shadow tribunals with zero standards that try to craft a more just outcome than the legal system that isn't perfect but at least has some standards and safeguards.

"What is the difference between any length of suspension in terms of fairness? Is it fair that Josh Gordon lost his job in an indefinite suspension because of weed and Elliott gets six games for disputed facts of whether he struck a woman? There is no way to make a system like this resemble any sense of fairness or justice."

NFL officials debated internally whether Elliott was going to learn from its suspension; he is expected to appeal. (Getty Images)

Both Tom Brady and Adrian Peterson filed federal cases against the NFL after its arbitration process, Stradley notes, adding that the league does better when it educates and provides sufficient resources to prevent issues rather than overestimate its "ability to act as some sort of fair tribunal. In an environment of fear and lack of trust, it is hard to deal with difficult issues of addiction and domestic violence."

The Elliott inquiry represents an example of what Kim Gandy, president and CEO of the National Network to End Domestic Violence, calls the "CSI effect"—an expectation that a woman who is a victim of domestic violence can have a dossier of photographic, video or other digital evidence to back up a verbal account.

"Most victims who are abused by a loved one, they want the abuse to stop," Gandy says. "They don't necessarily want someone to go to jail or suffer terrible consequences, but they do want the abuse to stop, and they often reach a point when they realize the abuse won't stop until there are consequences. But that may not always be jail."

An accusation by Thompson that Elliott pushed her up against the wall in his Florida apartment in February 2016—before Elliott was in the NFL—did not factor into the investigation, an NFL spokesman says. But a video of Elliott's exposing a woman's breast in public at a St. Patrick's Day parade in March of this year did; the NFL's disciplinary letter called it "inappropriate and disturbing."

For NFL decision-makers, there remains the risk that more evidence—namely video or photographs—becomes public after a decision is made. League officials also debated internally whether Elliott was going to learn from the sanction, and landed on a suspension recommendation that could not be perceived as soft.

It remains unclear whether the NFL's investigation included Elliott's mental health screening at the 2016 rookie combine—which Gelles says he recommended revamping in the wake of the league's bungling of the Rice case to try to develop a better psychological understanding of players. But the disciplinary letter sent Friday does say Elliott is "directed to engage a qualified professional, in consultation with the League and the current club, to arrange a clinical evaluation." Should counseling or treatment be recommended, Elliott would be "expected to comply."

If Elliott pursues counseling, which could become required as part of any compromise on appeal, there is a proven risk that the content of those sessions could leak to the media. Giants kicker Josh Brown admitted to physically abusing his wife in journal entries used as part of his therapy, which became public after a one-game suspension had been announced. The Giants dropped him a week later.

"Most victims want there to be a second chance," Gandy says. "In fact, they don't want them to get off entirely without consequences, but at the same time, there's always hope that there will be a genuine about-face and a change in behavior."

   

'The NFL Really Doesn't Trust Jerry Jones'

The NFL's letter to Elliott can also be read as a pseudo-indictment of Jones, the influential Cowboys owner, for not keeping his house in order—and as a sign the league is reasserting its role in disciplining players. Little could have added more rancor to an already tense standoff than having Jones and Goodell directly involved, such as talking to investigators, interacting with players or other parties, or the commissioner's trying to determine a suspension on his own.

"There are 32 owners, and you hope that when these situations arise, all are treated in a similar manner," Amy Trask, former CEO of the Oakland Raiders, tells B/R Mag. Trask says she has yet to study the Elliott case specifically but notes "what matters is getting these things right without regard to the team in question."

“I suspect that the NFL took control of this investigation and put this team together because they had no confidence that Jerry Jones was going to do the right thing,” says Richard J. Gelles, a University of Pennsylvania professor who has advised Goodell.

Gelles, the professor who has advised Goodell in the past, is among those who points to the NFL's being structured like a federation: While individual owners wield their own power, player discipline ultimately comes down to the league. "Wow," Gelles says of his first impression upon reading the league's six-game suspension announcement. "The NFL really doesn't trust Jerry Jones."

"I suspect that the NFL took control of this investigation and put this team together because they had no confidence that Jerry Jones was going to do the right thing," Gelles says. A spokesman for the Cowboys did not respond to a request for comment, and Jones has not commented publicly on the Elliott matter since the league's announcement Friday.

"At the end of the day, we certainly support Zeke," Cowboys executive vice president Stephen Jones said in a pregame interview Saturday. "At the same time, we understand the very, very, very serious nature of domestic violence, certainly that people should be held accountable if that takes place."

The relationship between owners and investigators will continue to evolve, and the era of NFL executives and owners cozying up in VIP boxes—or at least being so public about it—may be shifting as a result. Giants owner John Mara, for example, was accused of leveraging his close relationship with Goodell into a one-game suspension for Brown (a notion the NFL has refuted) and has since been publicly contrite over differing accounts of what his team knew and when.

"My strongly held belief is that any instance of this nature, anyone who levels an accusation is entitled to have it taken seriously," Trask says. "And similarly, that anyone who is accused is entitled to that presumption of innocence."

   

The Voice of a Victim: A Baseline Rather Than an Extreme

People familiar with the Elliott inquiry say another significant difference in the outcome of the NFL's decision was simple: Thompson provided testimony and evidence to the league, including metadata proving that photos of her bruises were taken and texted the day after she alleges Elliott beat her. It's evidence the Ohio prosecutor who chose not to press charges against Elliott didn't entirely have.

Thompson's initial lack of cooperation also, according to a person familiar with the matter, made the NFL's investigation take longer.

Which raises questions for cases like that of Brown, whose wife at the time, Molly Brown, did not cooperate with her husband's employer, telling law enforcement she "panicked" when the league contacted her.

"It helps when the victim is cooperative, but we know there are many good reasons that victims don't feel that it's safe for them to cooperate in an investigation," says Gandy, of the National Network to End Domestic Violence. "That should not be a deciding point in whether or not the league takes action."

So the NFL's consistency will surely be tested. "It is our duty and responsibility," a league spokesman says, "to hold everyone who is part of the league accountable." But perhaps the true test of the policy will arrive not with a superstar such as Elliott but with a backup facing criminal charges who doesn't start a sports-world frenzy. 

"I think [the Elliott case] lays the groundwork for consistent implementation," Drew says. "But they have to be firm, steadfast and consistent, including having highly credentialed people involved and the commissioner out of the process and taking the recommendations of those experts—regardless of who the player is."


Mary Pilon is a contributing writer for B/R Mag. She is the best-selling author of The Monopolists and the forthcoming The Kevin Show: Love, Mania and the Olympics, and a former reporter at the New York Times and the Wall Street Journal. Follow here on Twitter: @MaryPilon

The National Domestic Violence Hotline can be reached at 1-800-799-7233 or by clicking here.

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