FRISCO, Texas – As your agent for the betterment of common sense, seems like my duty to do as much as possible to simplify these legal matters and get you all "Zeked" up over this bye weekend.
And we will start with something you guys have heard me say probably far too often over the last couple of months, compliments of the late Texas E. Schramm, Dallas Cowboys original president and general manager oh those first 29 years:
Sometimes judges should do what's right instead of what is legal.
So let's start here: The ruling by the Fifth Circuit Court in New Orleans on Thursday to vacate the temporary restraining order that has allowed Ezekiel Elliott to play in these first five games has nothing to do with judging guilt or innocence in the NFL's six-game punishment for domestic abuse of Tiffany Thompson. Nor does it have to do with the "inherent unfairness" in the NFL's arbitration process Eastern District Court of Texas Judge Amos Mazzant accused NFL arbitrator Harold Henderson of when issuing the TRO in early September.
This basically was a 2-1 ruling by the three-judge panel against the NFLPA for not exhausting the arbitration process before filing their lawsuit against the NFL for wrongful punishment of Elliott. In other words, Judge Edward Prado and Judge Jennifer Elrod agreed the NFLPA attorneys indeed "jumped the gun," since the suit was technically filed before Henderson rendered the decision to sanction the suspension. Also those two agreed the court in Sherman, Texas, didn't have "subject matter jurisdiction" to even hear the petition for the TRO in the first place.
NFLPA lead attorney Jeffrey Kessler at least caught the ear of dissenting Judge James Graves when he argued in New Orleans with the analogy if you know a semi-truck is going to run into your house, you should not have to wait until the crash occurs before departing to save yourself. Makes sense. Problem was, judges ruled not legal.
Of course, the NFL says Zeke's six-game suspension begins immediately, meaning he is scheduled to miss the Oct. 22 game at San Francisco when the Cowboys return to work next Tuesday from their bye weekend, along with games against Washington, Kansas City, Atlanta, Philadelphia and the L.A. Chargers on Thanksgiving Day.
But in the infamous restraining words of Lee Corso, not so fast.
This ain't over until it's over.
According to the NFLPA's statement, "The NFLPA is reviewing the decision and considering all options. The appellate court decision focuses on the jurisdictional issues. The failures of due process by the NFL articulated in the District Court's decision were not addressed."
Indeed, and according to sports attorney Daniel Wallach, who has been closely following this case, the NFLPA and Elliott's attorneys have a couple of options left, and they could implement any or all at any moment.
- Since this was a 2-1 judgment, they could ask the three-judge panel in New Orleans for a rehearing of their decision.
- The NFLPA could file for a TRO in the U.S. District Court for the Southern District of New York, which if granted in time would allow Elliott to continue playing and ask for the lawsuit to be transferred back to Texas.
Wallach states on Twitter that "Mazzant and Graves opinions (while not binding in SDNY) are instructive on "fundamental fairness" for purposes of TRO in SDNY."
In other words, Wallach means maybe the opinions of these two judges on what is right should supersede what they felt definitely is legal. Ah-ha. Plus Wallach believes, after following the arbitration case, that the NFLPA and Zeke have a worthy argument against the NFL if they can just get the lawsuit to court, which the NFL definitely does not want to happen.
Now then, if after exploring these options without getting anywhere, well, might this go all the way to the United States Supreme Court?
See, if the NFLPA can ever navigate through this legal jungle, all they are asking for in court is for a judge/judges to rule on the fairness of the arbitration process. And the NFL is arguing that the courts have no rights to intercede since the two parties agreed to this process in a Collective Bargaining Agreement, which again does not even attempt to defend "inherent fairness."
Sort of like when you argued with your parents for being unfairly (in your mind) punished as a kid and you were told, "when you live in MY house you abide by MY rules."
Folks, that's as simple as I can make this when navigating through a world that makes your head swim.
Oh, and one other thing. Let's stop with the give-up, serve-your-suspension talk. If you were walking in Zeke's shoes, and being accused of something you insist you didn't do, would you just settle or exhaust every possibility to clear your name? Would you just say, you know what, don't need the $1.436 million I'm forfeiting in six games worth of base salary/bonus money, along with losing the guarantees on $6.5 million worth of base salaries over the next two seasons?
I'd think not.
And know Cowboys owner Jerry Jones supports his legal battle with the NFL as he turns 75 on this bye Friday.
"We support Zeke," Jones reiterated on his 105.3 The Fan radio segment Friday morning. "I'm very familiar with all the facts and details of the case. Zeke was not treated fairly."
Jones characterized the ruling in New Orleans as a "setback," but he went on to question why the system the NFL uses to prosecute these potential violations of league rules and standards shouldn't fall in line with the court system procedures used in our country.
"The law does provide us the outline, the precedent of how to do it," Jones said of judging innocence or guilt in the U.S court system. "Our system in the NFL does not."
OK, having said all this, and if none of this legal wrangling comes through, how do the Cowboys proceed without the services of the NFL's defending rushing champ, along with, after his perceived slow start, the NFL's fourth leading rusher after five games (393 yards)?
"We have a real good alternative," Jones said of possibly not having Zeke for six games. "Is it better to have Zeke? Yes, but we have an alternative."
Yep, that is why the Cowboys kept Darren McFadden, Alfred Morris and Rod Smith on the 53-man roster all this time. Rarely does a team keep four running backs on the 53. But the Cowboys, knowing danger was lurking in every courtroom corner, purchased insurance
Now just might be the time to cash in on that insurance policy.
Also, don't just assume Morris automatically becomes the starter just because he's been the primary backup these first five games with McFadden a game-day inactive. Face it, all he's had is eight carries, gaining 87 yards, 70 of those on that one carry.
There is part of me that thinks the Cowboys didn't want to risk McFadden getting injured in a mere backup role Morris is more than capable of assuming. Morris has participated in all of 17 plays in five games. So there is a distinct possibility the Cowboys were putting McFadden on ice to insure health and have fresh legs for this very scenario. We'll see.
We'll also see what defenses think of the Cowboys running backs now. You're well aware teams have been crowding the line of scrimmage, basically saying, no way Zeke are you going to beat us, while challenging Dak to beat them, and all he's done these past three games is rip them with his arm and his legs.
Knowing that, my guess is either McFadden or Morris are going to have to prove they are serious threats, otherwise teams will either back off to protect against the passing game or come hard after Dak, while simply absorbing whatever those guys can do in the running game.
If there is any good in the timing of this ruling, occurring during the Cowboys' bye week, at least the team has ample time to prepare for his absence in terms of not only personnel but game plan, too. I mean, think about this what-if: What if the Cowboys were playing this Sunday and they hadn't found out about the court ruling until after Thursday's practice?
So, there you have it, you're all "Zeked" up for this bye weekend, uh, for now. Because common sense tells me we haven't seen the end of all this … yet.