Lesson for Ezekiel Elliott: The Contract Always Wins

The appeals court was clear in ruling that the NFL commissioner was within his rights to suspend the Dallas Cowboys player.

Trust the process.

Photographer: Christian Petersen/Getty Images

I’m sure fans of the Dallas Cowboys are unhappy, but everyone who cares about the integrity of collective bargaining agreements should breathe a sigh of relief after a federal appeals panel reinstated the National Football League’s suspension of running back Ezekiel Elliott.

The six-game ban had been imposed by NFL Commissioner Roger Goodell after his office examined allegations of domestic violence against the Cowboys’ star. Elliott then pursued arbitration, as provided in the collective bargaining agreement. Before the arbitrator handed down a decision, Elliott sued in federal court and obtained an injunction ordering the league to allow him to play. 1  In a 2-1 vote this week the U.S. Court of Appeals for the 5th Circuit overturned the injunction and ordered the trial judge to dismiss the lawsuit.

The panel’s reasoning was a marvel of clarity and simplicity: Before a court has any jurisdiction to hear an employee’s appeal, the employee must first exhaust the grievance procedures provided under the agreement. If a lawsuit is filed, “courts must order resort to the private settlement mechanisms without dealing with the merits of the dispute.” This is hornbook U.S. labor law. An employee with a complaint “must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.” In other words, before he can sue, Elliott must first pursue the appeals process for which his own union bargained: asking Goodell to reconsider, and then to appoint a hearing officer to review his decision.

Elliott chose to try a different route. The National Football League Players Association, which filed the lawsuit on his behalf, essentially argues that appealing to the league would be pointless. The union considers the league’s investigation slipshod, and believes that Goodell’s mind is made up. Thus, the association argues, the league has already “repudiated” the grievance procedure. The 5th Circuit responded trenchantly that an employer does not repudiate the process simply by “refusal to accept an employee’s position.” 2

A player in Elliott’s position might well conclude that the grievance process as a whole is unfair as applied to his particular case. But if you ask each player about each detail of the collective bargaining agreement, most will find some provision worth arguing about. If one believes in the right of employees to form unions and bargain, however, this unhappiness is beside the point.

A collective bargaining agreement is just a contract, by which both employees and management promise to abide. Of course it will prove imperfect in practice. But in forming a union, each member gives up something for the good of the workforce as a whole -- knowing that his fellows will sacrifice for him as well. As one scholar put it, “For a worker to forgo individual gain is not to act irrationally but to recognize and embrace the promise of reciprocal benefit.” Once an agreement has been negotiated, the duty of the courts is generally to enforce the deal to which the parties have consented.

For this reason it’s not just fans of collective bargaining who should be relieved by the 5th Circuit’s action; it’s everyone who believes in the integrity of a contract. Parties enter into contracts because each expects to be better off as a result. If I pay you $1,000 for 1,000 widgets, I value the widgets more than the money, and you value the money more than the widgets. Maybe I learn later that I’ve made a bad bargain, that I could have bought the same widgets more cheaply elsewhere. A judge won’t upset the contract just because a party is unhappy with the result.

Similarly, a judge shouldn’t interfere just because one party thinks the other party is being unfair. If I promise you the money by Tuesday, and then find that I need an extension until Thursday, your refusal to grant me more time might be unneighborly, but you’re within your rights under the contract. Your cold insistence that I abide by the terms isn’t a court’s business. The burden is on me to negotiate a better deal next time.

All theories of contract rest fundamentally on the notion that the parties are nearly always the best judges of their own interests. Yes, there are exceptions -- when one party deceives the other, for instance -- but the players’ association, well-funded and well-lawyered, can hardly claim to have been unaware of the details of the deal it negotiated.

So no matter what a furious Cowboys fan might think of Goodell’s action, the process has to play out. That’s not a requirement imposed on the team by a vengeful league front office; that’s a provision of the collective bargaining agreement to which the players’ union is a party. A judge shouldn’t interfere.

Does the agreement grant Goodell too much power over discipline? Lots of players think so, and although the matter is complicated, many outside observers agree. But there’s a solution. If the players are unhappy, then when the time comes to extend the contract with the league, the union can try to change the appeal structure. Just remember that it’s a negotiation. The change will cost something. So players who think it’s time to change the disciplinary system should start thinking about what they’re willing to give up to get what they want.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. The arbitrator subsequently upheld the suspension.

  2. Even if one believes that Elliott’s punishment is too harsh, there is no reason to assume that appeal within the terms of the collective bargaining agreement would be futile. Just five years ago, former commissioner Paul Tagliabue, sitting as appeal officer, overturned the player suspensions Goodell handed down following accusations that New Orleans Saints coaches had offered cash bounties for injuring members of opposing teams.

To contact the author of this story:
Stephen L. Carter at

To contact the editor responsible for this story:
Stacey Shick at

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