Case 1:17-cv-06761-KPF Document 52 Filed 10/31/17 Page 1 of 4

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

NATIONAL FOOTBALL LEAGUE MANAGEMENT

COUNCIL,

Plaintiff,
Case No. 1:17-cv-06761-KPF
v.

NATIONAL FOOTBALL LEAGUE PLAYERS

ASSOCIATION,

Defendant.

NOTICE OF NFLPAS EMERGENCY MOTION

FOR AN INJUNCTION PENDING APPEAL

1
 Case 1:17-cv-06761-KPF Document 52 Filed 10/31/17 Page 2 of 4

NOTICE OF EMERGENCY MOTION

Pursuant to Federal Rule of Civil Procedure 62(c) and Federal Rule of Appellate Procedure

8(a)(1), and for the reasons set forth in the accompanying memorandum of law, the NFLPA

respectfully requests that this Court grant an injunction pending appeal. If the Court denies this

motion, the NFLPA intends to file an emergency motion for an injunction pending appeal in the

Second Circuit; thus, in the alternative, the NFLPA respectfully requests that this Court grant a

more limited injunction pending the Second Circuits disposition of the emergency motion. Given

the time urgencies, the NFLPA respectfully requests that this Court rule on this motion by

Wednesday at 7:00 pm, at which point it will have no choice but to seek relief from the Second

Circuit, as the NFL did in the Fifth Circuit when faced with similar circumstances. See NFL

Emergency Motion for Stay Pending Appeal, Natl Football League Players Assn v. National

Football League, No. 17-40936, Document No. 00514157782, at 9 n.3 (5th Cir. Sept. 15, 2017).

2
 Case 1:17-cv-06761-KPF Document 52 Filed 10/31/17 Page 3 of 4

Dated: October 31, 2017 By: /s/ Andrew S. Tulumello

Andrew S. Tulumello
Thomas H. Dupree, Jr.
Christopher J. Baum
Lochlan F. Shelfer
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
Tel.: (202) 955-8500
Fax: (202) 467-0539
atulumello@gibsondunn.com
tdupree@gibsondunn.com
cbaum@gibsondunn.com
lshelfer@gibsondunn.com

Rebekah Perry Ricketts

GIBSON, DUNN & CRUTCHER LLP
2100 McKinney Ave., Suite 1100
Dallas, TX 75201
Tel: (214) 698-3100
Fax: (214) 571-2900
rricketts@gibsondunn.com

Jeffrey L. Kessler
David L. Greenspan
Jonathan J. Amoona
Angela A. Smedley
Isabelle Mercier-Dalphond
WINSTON & STRAWN LLP
200 Park Avenue
New York, New York 10166
Tel: (212) 294-6700
Fax: (212) 294-4700
jkessler@winston.com
dgreenspan@winston.com
jamoona@winston.com
asmedley@winston.com
imercier@winston.com

Attorneys for the National Football League

Players Association and Ezekiel Elliott

3
 Case 1:17-cv-06761-KPF Document 52 Filed 10/31/17 Page 4 of 4

CERTIFICATE OF SERVICE

I, Andrew S. Tulumello, hereby certify that on October 31, 2017, I caused a copy of the

foregoing to be served upon the counsel for plaintiff named below by ECF:

Daniel L. Nash
Akin Gump Strauss Hauer & Feld LLP
1333 New Hampshire Avenue, N.W.
Washington, DC 20036

Paul D. Clement
Kirkland & Ellis LLP
655 Fifteenth Street NW, Suite 1200
Washington, DC 20005

Dated: October 31, 2017

/s/ Andrew S. Tulumello

Andrew S. Tulumello
 Case 1:17-cv-06761-KPF Document 52-1 Filed 10/31/17 Page 1 of 20

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

NATIONAL FOOTBALL LEAGUE MANAGEMENT

COUNCIL,

Plaintiff,
Case No. 1:17-cv-06761-KPF
v.

NATIONAL FOOTBALL LEAGUE PLAYERS

ASSOCIATION,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF

NFLPAS EMERGENCY MOTION FOR AN INJUNCTION PENDING APPEAL
 Case 1:17-cv-06761-KPF Document 52-1 Filed 10/31/17 Page 2 of 20
TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

ARGUMENT .................................................................................................................................. 3

I. Elliott Will Suffer Irreparable Harm Absent An Injunction Pending Appeal,

And The NFL Has Conceded That It Will Suffer None. ................................................ 3

II. NFLPA Has Made A Strong Showing Of Likelihood Of Success On The

Merits. ............................................................................................................................. 6

III. The Public Interest Favors An Injunction Pending Appeal. ......................................... 12

CONCLUSION ............................................................................................................................. 13

ii
 Case 1:17-cv-06761-KPF Document 52-1 Filed 10/31/17 Page 3 of 20
TABLE OF AUTHORITIES

Page(s)

Cases

Am. Beverage Assn v. City & Cty. of S.F.,

No. 15-cv-3415, 2016 WL 9184999 (N.D. Cal. Jun. 7, 2016) .................................................2

Bell Aerospace Co. Div. of Textron, Inc. v. Local 516, UAW,

500 F.2d 921 (2d Cir. 1974).......................................................................................................6

Bowman v. NFL,
402 F. Supp. 754 (D. Minn. 1975) .............................................................................................4

Brady v. Natl Football League,

779 F. Supp. 2d 992 (D. Minn. 2011), vacated on other grounds, 644 F.3d 661
(8th Cir. 2011)............................................................................................................................4

Carpenters 46 N. California Ctys. Conference Bd. v. Zcon Builders,

96 F.3d 410 (9th Cir. 1996) .......................................................................................................6

Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GmbH,

No. 14-cv-585, 2015 WL 5051769 (S.D.N.Y. Aug. 26, 2015), affd, 836 F.3d
153 (2d Cir. 2016) ......................................................................................................................2

Clarett v. Natl Football League,

306 F. Supp. 2d 411 (S.D.N.Y. 2004)........................................................................................4

Gulf Coast Indus. Workers Union v. Exxon Co., USA,

70 F.3d 847 (5th Cir. 1995) .......................................................................................................6

Haywood v. NBA,
401 U.S. 1204 (1971) .................................................................................................................4

Hoteles Condado Beach, La Concha & Convention Ctr. v. Union De Tronquistas

Local 901,
763 F.2d 34 (1st Cir. 1985) ........................................................................................................6

Intl Union, United Mine Workers of Am. v. Marrowbone Dev. Co.,

232 F.3d 383 (4th Cir. 2000) .....................................................................................................6

Jackson v. NFL,
802 F. Supp. 226 (D. Minn. 1992) .............................................................................................4

John Doe Co. v. Consumer Fin. Prot. Bureau,

235 F. Supp. 3d 194 (D.D.C. 2017) ...........................................................................................2

Kaley v. United States,

134 S. Ct. 1090 (2014) .............................................................................................................10

iii
 Case 1:17-cv-06761-KPF Document 52-1 Filed 10/31/17 Page 4 of 20
TABLE OF AUTHORITIES

Kaplan v. Alfred Dunhill of London, Inc.,

No. 96-cv-0258, 1996 WL 640901 (S.D.N.Y. Nov. 4, 1996)....................................................7

Linseman v. World Hockey Assn,

439 F. Supp. 1315 (D. Conn. 1977) .......................................................................................3, 4

Mackey v. Natl Football League,

543 F.2d 606 (8th Cir. 1976) .....................................................................................................4

Mohammed v. Reno,
309 F.3d 95 (2d Cir. 2002).........................................................................................................2

Murphy Oil USA, Inc. v. United Steel Workers AFL-CIO Local 8363,
No. 08-cv-3899, 2009 WL 537222 (E.D. La. Mar. 4, 2009) .....................................................6

N. Mariana Islands v. Millard,

287 F.R.D. 204 (S.D.N.Y. 2012) ...............................................................................................2

Natl Football League Mgmt. Council v. Natl Football League Players Assn,
820 F.3d 527 (2d Cir. 2016)...................................................................................................6, 9

NFLPA v. NFL,
598 F. Supp. 2d 971 (D. Minn. 2008) ....................................................................................3, 4

NFLPA v. NFL,
No. 17-cv-615, --- F. Supp. 3d ---, 2017 WL 3940545 (E.D. Tex. Sept. 8,
2017), vacated and remanded on other grounds, No. 17-40936, 2017 WL
4564713 (5th Cir. Oct. 12, 2017) .................................................................................2, 3, 9, 12

Piccolo v. CFTC,
388 F.3d 387 (2d Cir. 2004).....................................................................................................10

Pointer v. Texas,
380 U.S. 400 (1965) ...................................................................................................................9

Profl Sports, Ltd. v. Virginia Squires Basketball Club Ltd. Pship,

373 F. Supp. 946 (W.D. Tex. 1974)...........................................................................................4

Protect Our Water v. Flowers,

377 F. Supp. 2d 882 (E.D. Cal. 2004)........................................................................................2

SEB S.A. v. Montgomery Ward & Co., Inc.,

77 F. Supp. 2d 399 (S.D.N.Y. 1999)........................................................................................12

Seneca Nation of Indians v. Paterson,

No. 10-cv-687, 2010 WL 4027795 (W.D.N.Y. Oct. 14, 2010) ................................................2

iv
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TABLE OF AUTHORITIES

Silverman v. Major League Baseball Player Relations Comm., Inc.,

67 F.3d 1054 (2d Cir. 1995).......................................................................................................4

Stolt-Nielsen SA v. Celanese AG,

430 F.3d 567 (2d Cir. 2005).......................................................................................................8

Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No. 506 v. E.D.
Clapp Corp.,
551 F. Supp. 570 (N.D.N.Y. 1982), affd sub nom. Teamsters, Chauffeurs v.
Ed Clapp Corp., 742 F.2d 1441 (2d Cir. 1983) .........................................................................6

Thapa v. Gonzalez,
460 F.3d 323 (2d Cir. 2006).......................................................................................................2

Tom Doherty Assocs., Inc. v. Saban Entmt, Inc.,

60 F.3d 27 (2d Cir. 1995)...........................................................................................................5

Walt Disney Co. v. Natl Assn of Broad. Employees & Technicians,

No. 10-cv-5982, 2010 WL 3563110 (S.D.N.Y. Sept. 10, 2010) ...............................................8

Wash. Metro Area Transit Commn v. Holiday Tours, Inc.,

559 F.2d 841 (D.C. Cir. 1977) ...............................................................................................2, 3

Westvaco Corp. v. Local 579, United Paperworkers, Intl Union,

No. 90-cv-30091, 1992 WL 121372 (D. Mass. Mar. 5, 1992) ..................................................6

In re World Trade Ctr. Disaster Site Litig.,

503 F.3d 167 (2d Cir. 2007).......................................................................................................1

WPIX, Inc. v. ivi, Inc.,

691 F.3d 275 (2d Cir. 2012).......................................................................................................5

Statutes

9 U.S.C. 10(a)(3) .....................................................................................................................6, 10

9 U.S.C. 10(c) ...............................................................................................................................6

v
 Case 1:17-cv-06761-KPF Document 52-1 Filed 10/31/17 Page 6 of 20

INTRODUCTION

The NFLPA appreciates the Courts promptness in ruling on the pending preliminary

injunction motion and the issuance of a substantial decision on an expedited timeframe. Pursuant

to Federal Rule of Civil Procedure 62(c) and Federal Rule of Appellate Procedure 8(a)(1), the

NFLPA now seeks an injunction pending an expedited appeal of the Courts ruling denying the

preliminary injunction. In the absence of an injunction pending appeal, this Courts decision last

night effectively becomes the final word before Ezekiel Elliott is suspendeda punishment for a

professional athlete that every court save this one has acknowledged to be irreparable harm.

Moreover, two federal district court judges (Judge Mazzant in the Eastern District of Texas and

Judge Crotty of the Southern District of New York), and one court of appeals judge (Judge Graves

of the Fifth Circuit) have applied the same legal standards as this Court and reached diametrically

opposite conclusions on both irreparable harm and serious questions on the merits. Where, as here,

a case involves substantial legal questions and the movant is threatened with irreparable harm, an

injunction pending appeal is warranted. Granting such an injunction here will maintain the status

quo for a short period, and will enable the Second Circuit to decide this appeal before Elliott suffers

the very harm he is fighting to prevent.

Although the Court denied the motion for a preliminary injunction, the NFLPA readily

satisfies the lower standard for issuing an injunction pending appeal. Whether to grant an

injunction pending appeal depends on (1) whether the applicant has made a strong showing that

he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent

an injunction; (3) whether issuing the injunction will substantially injure the other parties

interested in the proceeding; and (4) where the public interest lies. In re World Trade Ctr.

Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007). In the context of an injunction pending

appeal, these criteria are applied on a sliding scale, such that the probability of success may
 Case 1:17-cv-06761-KPF Document 52-1 Filed 10/31/17 Page 7 of 20

be inversely proportional to the amount of irreparable injury that will occur absent the injunction.

Thapa v. Gonzalez, 460 F.3d 323, 33435 (2d Cir. 2006); see also Church & Dwight Co. v. SPD

Swiss Precision Diagnostics, GmbH, No. 14-cv-585, 2015 WL 5051769, at *2 (S.D.N.Y. Aug. 26,

2015), affd, 836 F.3d 153 (2d Cir. 2016) (same). Simply stated, more of one excuses less of the

other. Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002). Courts also must take into account

the fact that a preliminary injunction will last until the end of the trial, often a considerable length

of time after issuance, whereas a stay pending appeal, at least in the case of an expedited appeal,

might last for a very brief interval. Id. at 101 n.6 (citation omitted).

Importantly, as the NFL itself has previously recognized, this Court need not repudiate its

earlier determinations in the PI Order to grant an injunction pending appeal. NFL Emergency

Mot. to Stay Inj. Pending Appeal, NFLPA v. NFL, No. 17-cv-615, ECF No. 30, at 2 (E.D. Tex.

Sept. 11, 2017); see also N. Mariana Islands v. Millard, 287 F.R.D. 204, 215 (S.D.N.Y. 2012)

(granting injunction pending appeal where party could eventually have a fair chance of success

on the merits). 1 Indeed, [p]rior recourse to the initial decisionmaker before seeking an

injunction pending appeal would hardly be required as a general matter if [a district court] could

properly grant interim relief only on a prediction that it has rendered an erroneous decision. Wash.

Metro Area Transit Commn v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977); see also

Protect Our Water v. Flowers, 377 F. Supp. 2d 882, 884 (E.D. Cal. 2004) (Several courts have

observed that the success on the merits factor cannot be rigidly applied, because if it were, an

1
See also Am. Beverage Assn v. City & Cty. of S.F., No. 15-cv-3415, 2016 WL 9184999, at *2 (N.D. Cal. Jun. 7,
2016) (granting injunction pending appeal despite denying preliminary relief and noting: the success on the
merits factor cannot be rigidly applied, because if it were, an injunction [pending appeal] would seldom, if ever,
be granted because the district court would have to conclude that it was probably incorrect in its determination on
the merits (internal quotation marks omitted); John Doe Co. v. Consumer Fin. Prot. Bureau, 235 F. Supp. 3d
194, 205-06 (D.D.C. 2017) (granting injunction pending appeal, despite denying preliminary injunction, because
the case presented a serious legal question related to uncertain law); Seneca Nation of Indians v. Paterson, No.
10-cv-687, 2010 WL 4027795, at *3 (W.D.N.Y. Oct. 14, 2010) (granting injunction pending appeal after denying
preliminary relief because injunction was proper where there is some possibility of success on appeal).

2
 Case 1:17-cv-06761-KPF Document 52-1 Filed 10/31/17 Page 8 of 20

injunction would seldom, if ever, be granted because the district court would have to conclude

that it was probably incorrect in its determination on the merits. (quotation omitted)).

Accordingly, courts routinely grant Rule 62 relief when they have ruled on an admittedly

difficult legal question and when the equities of the case suggest that the status quo should be

maintained. Wash. Metro Area Transit Commn, 559 F.2d at 844. That is precisely the relief that

is warranted here. 2

ARGUMENT

I. Elliott Will Suffer Irreparable Harm Absent An Injunction Pending Appeal, And The
NFL Has Conceded That It Will Suffer None.

This Court acknowledged that the balance of harms presents a close[] question, PI Order

at 20, but ultimately disagreed with the long line of cases that have previously held that improper

suspensions of professional athletes can result in irreparable harm to the player. NFLPA v. NFL,

No. 17-cv-615, --- F. Supp. 3d ---, 2017 WL 3940545, at *10 (E.D. Tex. Sept. 8, 2017) (E.D.

Tex. PI Order), vacated & remanded on other grounds, No. 17-40936, 2017 WL 4564713 (5th

Cir. Oct. 12, 2017) (5th Cir. Op.); see also, e.g., ECF No. 31, at 2 (TRO Order) (Improper

suspensions can undoubtedly result in irreparable harm); NFLPA v. NFL (Starcaps), 598 F.

Supp. 2d 971, 982 (D. Minn. 2008) (same); Linseman v. World Hockey Assn, 439 F. Supp. 1315,

1319 (D. Conn. 1977) (same).

The Courts irreparable harm analysis also overlooked several key points.

First, and contrary to this Courts determination, the NFL correctly conceded at yesterdays

preliminary injunction hearing that Elliott will suffer irreparable harm in the absence of an

injunction, Hearing Tr. at 39:8-13, 41:13-21, because he will miss six games, which is a large

2
The NFLPA intends to file a notice of appeal today and will request that the Second Circuit expedite its
consideration of that appeal.

3
 Case 1:17-cv-06761-KPF Document 52-1 Filed 10/31/17 Page 9 of 20

portion of the NFLs season. E.D. Tex. PI Order at *10. That concession accords with numerous

cases making clear that in professional sportswhere careers are short and precarious, id. at

*10lost playing time . . . constitutes irreparable harm, full stop. No courtuntil this one

has ever concluded that professional athletes with short career spans do not face irreparable harm

in such circumstances. Haywood v. NBA, 401 U.S. 1204, 1205 (1971) (reinstating district court

decision finding that, if player is unable to continue to play professional basketball, . . . he will

suffer irreparable injury in that a substantial part of his playing career will have been dissipated);

Brady v. Natl Football League, 779 F. Supp. 2d 992, 1035 (D. Minn. 2011), vacated on other

grounds, 644 F.3d 661 (8th Cir. 2011); see also, e.g., Starcaps, 598 F. Supp. 2d at 982 (player

suffered irreparable harm where he would los[e] playing time, and his reputation may be

irretrievably tarnished); Linseman, 439 F. Supp. at 1319; Jackson v. NFL, 802 F. Supp. 226, 231

(D. Minn. 1992); Bowman v. NFL, 402 F. Supp. 754, 756 (D. Minn. 1975). 3 That disagreement

alone establishes that the NFLPA has raised a difficult legal question.

Second, after the suspension took effect, the NFL allowed Elliott to play in Game One of

the NFL season. The NFLs decision is consistent with its conduct in other caseslike Brady II

where, after the district court vacated Mr. Bradys suspension, the NFL did not seek to prevent

him from playing while legal proceedings resolved. Accordingly, the NFLs sole stated interest

the interest in obtaining the benefit of its bargainshould not stand in the way of an injunction

3
See also Silverman v. Major League Baseball Player Relations Comm., Inc., 67 F.3d 1054, 1062 (2d Cir. 1995)
(Given the short careers of professional athletes and the deterioration of physical abilities through aging, the
irreparable harm requirement has been met.); Mackey v. Natl Football League, 543 F.2d 606, 623 (8th Cir.
1976); Clarett v. Natl Football League, 306 F. Supp. 2d 411, 412 (S.D.N.Y. 2004) (denying stay of district court
order because football player plaintiff would be precluded from entering the 2004 draft and may lose a year of
playing time in the NFL itself a very detrimental injury. Even if [plaintiff] is permitted to play college football
next year, the possibility of an injury could preclude him from ever playing professional football, a serious threat
not easily remedied by monetary damages. The hardship that a stay would impose on [plaintiff], therefore, is
irremediable a graver harm than the substantial injury that the Second Circuits test requires.); see also
Profl Sports, Ltd. v. Virginia Squires Basketball Club Ltd. Pship, 373 F. Supp. 946, 949 (W.D. Tex. 1974).

4
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pending appeal. PI Order at 23. There is surely no irreparable harm to the NFL when the League

allowed Elliott to play after it suspended him. The law ordinarily does not recognize a harm that

is freely self-imposed as irreparablelet alone sufficiently irreparable to prevail under a

balance of hardships test. 4

The Court reasoned that future economic injuries such as lost profits are compensable

through monetary awards. PI Order at 21. But the significant monetary losses that Elliott will

suffer due to the threatened six-game suspension cannot be calculated because of the effects of

that suspension on Elliotts reputation, earning potential, and overall market value. Arceneaux

Decl. 10.4; see, e.g., WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 286 (2d Cir. 2012) (finding irreparable

harm where plaintiffs losses would be difficult to measure and monetary damages would be

insufficient to remedy the harms). Importantly, that the amount of the irreparable harm is not

quantifiable at this point does not mean that the occurrence of irreparable harm is speculative; as

the case relied on by this Court recognized, irreparable harm exists . . . where there is a threatened

imminent loss that will be very difficult to quantify at trial. Tom Doherty Assocs., Inc. v. Saban

Entmt, Inc., 60 F.3d 27, 38 (2d Cir. 1995). That is the case here. Further, the lessened likelihood

of a teams success resulting from a players suspension is personalized to the player. PI Order

at 22 n.6. If the Cowboys do not qualify for the playoffs, Elliott indisputably will not have any

opportunity to set single-game or single-season rushing records, or secure post-season awards such

as Super Bowl MVP, or have any opportunity to increase his market value in other ways by

4
Nor would the NFLs interest in combating off-the-field misconduct be substantially injured by an injunction
pending appeal. PI Order at 23. The NFL is, of course, free to enforce its conduct policies and seek to redress
and combat domestic abuse during the pendency of the appeal. Id. Moreover, the NFLs investigation of the
events of one week in July 2016 lasted for 14 months; Mr. Elliott was not informed of his suspension until August
11, 2017; and his arbitration appeal was not decided until September 5, 2017. The NFL may have a strong interest
in securing the purported benefit of its bargain, but this timetable surely belies that it has an immediate interest in
doing so. Mr. Elliott can be suspended later in this season or in the beginning of next season. Either result would
fully vindicate the Leagues asserted interests.

5
 Case 1:17-cv-06761-KPF Document 52-1 Filed 10/31/17 Page 11 of 20

contributing to his teams late-season and post-season success. All these reasons demonstrate why

the NFL freely conceded the irreparable harm point that this Court nonetheless rejected.

Given that the NFL conceded that Elliott will suffer irreparable harm, that this is the first

court to conclude that a professional athlete does not suffer irreparable harm when subjected to a

suspension, and that the NFLs conduct in this matter belies a claim of true irreparable harm, the

Court should conclude that this element is satisfied.

II. NFLPA Has Made A Strong Showing Of Likelihood Of Success On The Merits.

The Courts analysis of the serious legal questions was predicated on two erroneous legal

conclusions, both of which give rise to a substantial likelihood of success on the merits in the Court

of Appeals. 5

5
This Court suggestedbut did not holdthat courts do not review LMRA awards for fundamental fairness. PI
Order 15-17. The NFLPA respectfully disagrees with the dicta in Brady II on which this Court relied in so
suggesting, where the Second Circuit stated that it ha[s] never held that the requirement of fundamental fairness
applies to arbitration awards under the LMRA. PI Order at 16 (quoting Brady II, 820 F.3d at 553 n.13). In fact,
the Second Circuit has held in an LMRA case that arbitrators must grant the parties a fundamentally fair hearing.
Bell Aerospace Co. Div. of Textron, Inc. v. Local 516, UAW, 500 F.2d 921, 923 (2d Cir. 1974) (citing 9 U.S.C.
10(c) (now 9 U.S.C. 10(a)(3)).
And multiple courts of appeals have vacated arbitration awards in LMRA cases because the arbitration
proceedings were fundamentally unfair. See Gulf Coast Indus. Workers Union v. Exxon Co., USA, 70 F.3d 847,
850 (5th Cir. 1995) (assessing whether the arbitration proceedings were fundamentally unfair in LMRA case
and affirming vacatur of award under Section 10(a)(3)); Hoteles Condado Beach, La Concha & Convention Ctr.
v. Union De Tronquistas Local 901, 763 F.2d 34, 42 (1st Cir. 1985) (affirming vacatur of award in LMRA case
because the arbitrator denie[d] the parties a full and fair hearing on the dispute); see also Carpenters 46 N.
California Ctys. Conference Bd. v. Zcon Builders, 96 F.3d 410, 413 (9th Cir. 1996) (stating in LMRA case that
arbitrator must grant the parties a fundamentally fair hearing); cf. Intl Union, United Mine Workers of Am. v.
Marrowbone Dev. Co., 232 F.3d 383, 391 (4th Cir. 2000) (affirming vacatur of award in NLRA case because
arbitrator appointed under collective bargaining agreement denied the Union a full and fair hearing). So have
numerous district courts. Murphy Oil USA, Inc. v. United Steel Workers AFL-CIO Local 8363, No. 08-cv-3899,
2009 WL 537222, at *3 (E.D. La. Mar. 4, 2009) (vacating award where arbitrators failure to [hold an evidentiary
hearing] was fundamentally unfair); Westvaco Corp. v. Local 579, United Paperworkers, Intl Union, No. 90-
cv-30091, 1992 WL 121372, at *10 (D. Mass. Mar. 5, 1992) (vacating award and noting that [t]he arbitrator also
has broad discretion in determining what evidence to accept, as long as the parties receive a fundamentally fair
hearing); Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No. 506 v. E.D. Clapp Corp., 551 F.
Supp. 570, 578 (N.D.N.Y. 1982), affd sub nom. Teamsters, Chauffeurs v. Ed Clapp Corp., 742 F.2d 1441 (2d
Cir. 1983) (vacating award and explaining that principles of fundamental fairness required that the Union be
given a full opportunity to present its case to the arbitrator).

6
 Case 1:17-cv-06761-KPF Document 52-1 Filed 10/31/17 Page 12 of 20

First, the linchpin of this Courts fundamental fairness analysis as to the testimony of

Tiffany Thompson and Commissioner Goodell is that the CBA does not grant authority, much

less require, an arbitrator to compel an individual to testify. PI Order at 1920. That is wrong as

a legal matter, and cannot be reconciled with the text of the CBA and decisions that construe

it. And in fact, as this Court recognized elsewhere in its order, Arbitrator Henderson compelled

Kia Roberts to testify in this very case. PI Order at 7.

In Article 46(2)(b) of the CBA, the NFL and the NFLPA bargained for a provision that

grants players the right . . . to present, by testimony or otherwise, any evidence relevant to the

hearing. Ex. A-NFLPA-58 (emphasis added). Prior NFL arbitratorsincluding Commissioner

Goodell himselfhave interpreted Article 46 to require that players be afforded the opportunity

to confront key witnesses, and have accordingly interpreted their own powers to include the power

of compulsion. Commissioner Goodell, while acting as the arbitrator, has compelled league-

affiliated witnesses, including, for example, Ted Wells in the Brady case.

Other arbitrators also have compelled Commissioner Goodell to testify. For example,

former Southern District of New York Judge Barbara Jones, who served as the arbitrator in the

Ray Rice arbitration, held that the ability to cross examine witnesses was a key element[] of

a fundamentally fair hearing, and that arbitrators powers under the CBA include compelling

the witnesses necessary for the hearing to be fair. Ex. A-NFLPA-14 at 2-3 (Rice Order on

Discovery & Hearing Witnesses (Oct. 22, 2014)) (quoting Kaplan v. Alfred Dunhill of London,

Inc., No. 96-cv-0258, 1996 WL 640901, at *5 (S.D.N.Y. Nov. 4, 1996)). Judge Jones ordered the

Commissioner to testify, holding that [t]o limit the available witnesses knowledgeable about the

content of that meeting to the individuals the NFL is willing to produce would prevent Rice from

presenting his case and runs the risk of providing an incomplete picture of the content of a meeting

7
 Case 1:17-cv-06761-KPF Document 52-1 Filed 10/31/17 Page 13 of 20

that both parties have identified as critical. Id. at 3. Similarly, during the Bounty-Gate arbitration,

former NFL Commissioner Paul Tagliabue, acting as an arbitrator, concluded that he had the

power under Article 46 of the CBA to compel witnesses to testify, and accordingly compelled New

Orleans defensive coach Gregg Williams to testify. Ex. G (New Orleans Saints (Bounty) Pre-

Hearing Order No. 4 (Nov. 9, 2012)); see also Ex. F (Brady Decision on Hearing Witnesses &

Discovery (June 22, 2015)) (arbitrator ordering the testimony of Ted Wells, who supervised the

investigation and preparation of the Investigative Report that serve[d] as the basis for Mr. Bradys

discipline).

Moreover, this Courts conclusion that Article 46 does not authorize arbitrators to compel

NFL witnesses is based on its own sui generis conclusion. The arbitrator made no such

determination. Arbitrator Henderson denied Elliotts request to examine Thompson and

Commissioner Goodell because he concluded that testimony was not essential. Ex. A-NFLPA-

55, at 3-4; Arb. Hrg Tr. (Aug. 30), Ex. C at 348:18-349:15. But Henderson never suggested that

he lacked the authority to do so under the CBA. This Courts decision effectively rewrites the

arbitrators decision andmore problematicrewrites the CBA itself to preclude Article 46

arbitrators from compelling witnesses. Of course, it is not this Courts interpretation of the CBA

the parties bargained for; it is the arbitrators. And neither the arbitrator nor the NFL has ever

taken the position that Article 46 precludes the compulsion of NFL-employed witnesses.

Moreover, courts in this Circuit regularly enforce arbitral subpoenas against third-party witnesses

in LMRA cases. See, e.g., Walt Disney Co. v. Natl Assn of Broad. Employees & Technicians,

No. 10-cv-5982, 2010 WL 3563110, at *3 (S.D.N.Y. Sept. 10, 2010) (enforcing arbitral subpoenas

against third parties under the LMRA); see also Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567,

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577 (2d Cir. 2005) (arbitrators in the FAA context have the power to compel testimony and

documents from non-party witnesses at the hearing).

It is well established that a reviewing court must not substitute [its] own views of the

meaning of the contract for which the parties bargained. Natl Football League Mgmt. Council

v. Natl Football League Players Assn, 820 F.3d 527, 536 (2d Cir. 2016) (Brady II). That is

precisely what happened here. That legal error is reason alone to provide the NFLPA with a strong

likelihood of success.

Second, this Courts analysis with respect to Thompsons testimony was erroneous. It is

premised on this Courts same mistaken conclusion that Henderson lacked authority to compel her

testimony, as well as the Courts determination that Thompsons testimony would be duplicative

and emotionally disturbing. PI Order at 20. But once again, this conclusion is sui generis and

the product of this Courts surmise. Henderson made no determination that Thompsons testimony

would have been cumulative or emotionally difficult. Instead, Henderson concluded that he

did not believe [Thompsons] live testimony and availability for cross examination are essential

to Elliotts defense. Ex. A-NFLPA-55, at 3-4 (emphasis added). In reviewing an arbitral award,

a court may not supply alternative rationales to buttress the arbitrators decision.

In addition, the Second Circuit has already held that the whole point of an Article 46

hearing is to establish a complete factual record, and to allow the player to challenge the findings

of the Commissioner. Brady II, 820 F.3d at 541. Here, Thompson was the only witness to claim

first-hand knowledge of the alleged incidents. 5th Cir. Op. at *12 (Graves, J., dissenting)

(Thompson is the sole witness to any alleged domestic violence). Elliotts right to cross-examine

his lone accuser thus could not be more essential to the proceedings. See Pointer v. Texas, 380

U.S. 400, 405 (1965) (the right of . . . cross-examination is an essential and fundamental

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requirement); see also Piccolo v. CFTC, 388 F.3d 387, 391 (2d Cir. 2004) (Fundamental fairness

requires a fair trial in a fair tribunal, with fair notice of the matters at issue and an opportunity to

cross-examine witnesses.). As Judge Jones held, the CBA plainly requires the production of

evidence necessary for the hearing to be fair. Ex. A-NFLPA-14 at 2-3.

Indeed, as Judge Mazzant made clear, the NFL did not even ask Thompson to testify,

and there is nothing in the record to suggest that she was unwilling to testify at the arbitration

hearing. PI Order at *7 n.6 (emphasis added). Nor did the arbitrator so find. After all,

Thompson was cooperative throughout the entirety of the NFLs investigation, id., voluntarily

agreeing to six interviews and providing the NFL with numerous photographs, hundreds of text

messages, and access to two of her cellphones. See Ex. A-NFLPA-44 at 12. Hendersons refusal

even to ask Thompson to testify deprived the NFLPA and Elliott of the opportunity to produce

evidence that is indisputably pertinent and material to this case. 9 U.S.C. 10(a)(3).

Hendersons decision to deny NFLPA the opportunity to cross-examine Thompson was all

the more improper because, as Judge Crotty recognized, multiple parties concluded that she was

not a credible witness. TRO Order at 3 (denying Elliott the right to cross-examine Thompson was

particularly significant because there were substantial questions concerning the credibility of the

accusing witness). The Columbus Police refused to arrest or charge Elliottfor which they only

need a showing of probable cause, i.e.the kind of fair probability on which reasonable and

prudent people, not legal technicians, act. Kaley v. United States, 134 S. Ct. 1090, 1103 (2014)

(internal quotation marks and alterations omitted). The Columbus police concluded that

Thompsons claims constituted conflicting version[s] of what had taken place. Ex. A-NFLPA-

24 at 2. The City Attorney for Columbus, Ohio publicly stated that there would be no criminal

charges against Elliott primarily due to conflicting and inconsistent information across all

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incidents. Ex. A-NFLPA-40. And David Yuzuk, the officer that responded to Thompsons 911

call on February 12, 2016, further testified that Thompson was [v]ery uncredible. Arb. Hrg Tr.

(Aug. 30), Ex. C at 162:1; see also Arb. Hrg Tr. (Aug. 30), Ex. C at 267:12 (Lisa Friel agreeing

that Thompson had credibility issues). Moreover, the NFLs lead investigator, Kia Roberts,

catalogued numerous other indicators that Thompson was not credible, including that Thompson

urged her friend to lie to the police, destroyed relevant evidence from her cell phones, and publicly

threatened to ruin Elliotts career at the time she raised her allegations, including by launching a

website to sell supposed sex tapes from their relationship. Ex. A-NFLPA-44 at 6163, 6667; Ex.

C at 297:13. Because Thompsons credibility is the critical issue in the case, Hendersons decision

to deny NFLPA and Elliott the opportunity to Thompson deprived them of the opportunity to

present pertinent and material evidence. 6

The arbitrators denial of access to Thompson and Goodell is a textbook case for vacatur

in this Circuit. In Tempo Shain, the Second Circuit held that an arbitration panel committed

misconduct in violation of the FAA by refusing to hold the record open until a key witness

who possessed unique knowledge on a central issuewas available to testify. 120 F.3d at 2021.

The court concluded that the panels refusal to allow the absent witness to testify had no

reasonable basis and amount[ed] to fundamental unfairness. Id. at 21; see id. at 20 (appellees

unsupported oral testimony concerning such representations was unrebutted because Pollock, who

allegedly made the representations on Berteks behalf, was not allowed to testify, and he is the

6
The necessity for third-party witnesses is a byproduct of the Leagues decision to punish players for non-work-
related, off-field conduct, even in the absence of any criminal process or civil process. The NFL has hired several
former prosecutors whose job is to conduct an after-the-fact investigation involving multiple third parties that
have nothing to do with the National Football League. Accordingly, the witnesses who become central in cases
such as these will inevitably be unrelated to the NFL. The NFLs foray into off-workplace incidents cannot render
players less able to contest their discipline than they are to contest game-day infractions, particularly given the
serious and grave nature of the allegations the Commissioner is making. Article 46 gives the player a right to a
fundamentally fair hearing, whether for work-related or non-work-related conduct.

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only person who could have done so) (emphasis added). That is all the more true here, where the

absent witness is the lone accuser, and her testimony is material, pertinent, and critically

important to Elliotts case. E.D. Tex. PI Order at *10. Tempo Shain compels vacatur here.

III. The Public Interest Favors An Injunction Pending Appeal.

Finally, the public interest supports enjoining employee discipline where that discipline is

the product of an unjust and fundamentally unfair arbitration. An injunction to preserve the status

quo while the integrity of the arbitral proceedings is reviewed will benefit many constituents

including NFL players and the NFL, as well as anyone subject to an arbitration provision. The

public interest favors an injunction where it is needed to maintain the status quo until a

determination on the merits is made, where no critical public interest would be harmed, and where

the enjoined party can be effectively vindicated after a trial on the merits. SEB S.A. v. Montgomery

Ward & Co., Inc., 77 F. Supp. 2d 399, 405 (S.D.N.Y. 1999).

* * *

As Judge Graves put it, this case is about undisclosed information, uninformed decisions,

and an arguably unfair process in determining whether Dallas Cowboys running back Ezekiel

Elliott should be punished for allegations of domestic violence made by an accuser who was found

not credible by the NFLs lead investigator, who was then excluded from meetings with NFL

Commissioner Roger Goodell. 5th Cir. Op. at *5 (Graves, J., dissenting). As Judge Mazzant

concluded: The circumstances are unmatched by any case this Court has seen. E.D. Tex. PI

Order at *18. Serious legal questions exist about whether [f]undamental unfairness [was] present

throughout the entire arbitration process. Id. at *19.

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CONCLUSION

For the foregoing reasons, the NFLPA respectfully requests that this Court grant an

injunction pending appeal. If this Court denies the NFLPAs motion, the NFLPA intends to file

an emergency motion for an injunction pending appeal in the Second Circuit; thus, in the

alternative, the NFLPA respectfully requests that this Court grant a more limited injunction

pending the Second Circuits disposition of the emergency motion. Given the time urgencies, the

NFLPA respectfully requests that this Court rule on this motion by Wednesday at 7:00 pm, at

which point it will have no choice but to seek relief from the Second Circuit, as the NFL did in the

Fifth Circuit when faced with similar circumstances.

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Dated: October 31, 2017 By: /s/ Andrew S. Tulumello

Andrew S. Tulumello
Thomas H. Dupree, Jr.
Christopher J. Baum
Lochlan F. Shelfer
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
Tel.: (202) 955-8500
Fax: (202) 467-0539
atulumello@gibsondunn.com
tdupree@gibsondunn.com
cbaum@gibsondunn.com
lshelfer@gibsondunn.com

Rebekah Perry Ricketts

GIBSON, DUNN & CRUTCHER LLP
2100 McKinney Ave., Suite 1100
Dallas, TX 75201
Tel: (214) 698-3100
Fax: (214) 571-2900
rricketts@gibsondunn.com

Jeffrey L. Kessler
David L. Greenspan
Jonathan J. Amoona
Angela A. Smedley
Isabelle Mercier-Dalphond
WINSTON & STRAWN LLP
200 Park Avenue
New York, New York 10166
Tel: (212) 294-6700
Fax: (212) 294-4700
jkessler@winston.com
dgreenspan@winston.com
jamoona@winston.com
asmedley@winston.com
imercier@winston.com

Attorneys for the National Football League

Players Association and Ezekiel Elliott

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CERTIFICATE OF SERVICE

I, Andrew S. Tulumello, hereby certify that on October 31, 2017, I caused a copy of the

foregoing to be served upon the counsel for plaintiff named below by ECF:

Daniel L. Nash
Akin Gump Strauss Hauer & Feld LLP
1333 New Hampshire Avenue, N.W.
Washington, DC 20036

Paul D. Clement
Kirkland & Ellis LLP
655 Fifteenth Street NW, Suite 1200
Washington, DC 20005

Dated: October 31, 2017

/s/ Andrew S. Tulumello

Andrew S. Tulumello