Cowboys Break: A Look At The Legal Side

another edition of The Break. I'm Derek Eagleton and we're gonna talk some Cowboys football here with you guys today. We're gonna talk about some legal stuff here today. And I know that over the last few days, really over the last few weeks, we've had a lot of legal issues with regards to Zeke Elliott, and every day when we start those conversations, I always toss it over to Nick and Dave and ask them to be our resident attorneys.

And they've done a fairly good job, fairly fairly good jobs, somewhat of a good job being able to explain this stuff. But we figured this morning we're going to give it to the legal experts. So we're going to have mister Daniel Wallace join us here in just a moment. He's a sports attorney who is going to give us some insights on He's been following this case really closely. I don't know if you followed him on Twitter, but he's a really great follow on Twitter, has a lot of

great insight. So we figured we'd have him on and let you guys hear from him directly to give us some context on the legal side of what's happening with ezekiel La. Before we have him on, though, Dave and Nick and Amber, I would like to at least get us everyone caught up on what happened yesterday. With regards of this case. It sounds like at this point it's back on he's playing for now? How long is he playing? Is it just this week? Is it next week? What

are we looking at right now? As far as we understand it, well, this one, you know, you hear the term temporary restraining order. You filed an injunction last time, and it was a little more open ended. This one has a finite time limit. It's fourteen days or or earlier, at the most fourteen days, at the most fourteen days. This this issue has to be ruled on by the presiding judge by I believe October thirtieth, but it can

be ruled on before. So it stands to reason that he will play against San Francisco and he could potentially play against Washington while this is in effect. But basically the judge, who you know, judge who's supposed to rule on this, is on vacation right now, and so there's a four fourteen day window. I don't know when she gets back. That's the thing. So a good time for vacations, right everybody is not rotator around it. I was thinking

about that last night. I was like, yeah, I mean, it would be cool to take a vacation in October. That's not really he were to us, but yeah, yeah, that sounds great. Though the rest of the world, I'm sure it's it's not a bad time. So, like I said, it seems like a very good bet he'll be available for San Francisco. It's possible or maybe even likely, he'll be available for Washington, but maybe not. But he's got fourteen days ish before this goes back to a judge

and then we know what comes next. But even with I know that, what I what I thought I saw was that by the thirtieth was when this case has to be or no, by the twenty ninth is when this case has to be heard. Is that accurate? The game against Washington is on the twenty ninth, by the thirtieth when it has to be heard, and even at that when it's heard, that doesn't mean you're necessarily going to get a quick response on whatever is is discussed

in the hearing. Correct. I guess that's technically true. But I mean this was save him, Derek. This was heard, but I mean this was heard yesterday and decided on yesterday. Like, I don't this is I'm I don't think this is that like slow grinding legal process where it's going to sit in court for uh, you know, weeks and weeks. I mean, even you go back to the injunction that was filed in Sherman. The judge heard the arguments on

Tuesday and ruled on Friday. So I think you're talking a couple hours to maybe a couple of days at most. I mean, I don't. I don't think this is gonna be something that drags out once it has hurt again. Wait, what's that? Yeah, Darren McFadden just got dropped in another fantasy league. That's right, Morris too. This keeps happening. Yeah, I'm sure you've got that roster alert that says Darren McFadden has been dropped in forty six thousand leagues. Yeah,

I mean he's is he explaining this week? I mean, and that's that's that's good for the Cowboys. I mean, that's good for for this team. I Mean we've said it all along that he's a dynamic player. I think he's the best football player on the team. So obviously that that's a good thing. But uh, you have to wonder from the mental makeup of him, just like this back and forth constant you know, tennis match that's been going on with him. I mean, he's he playing, is

he not playing? And and and what is it like for for the team. I know Garrett's gonna stand up here and say, you know, we prepare the same, but it's got to be weighing on them to just kind of go back and forth like this. And this is a little bit different too, Becau because you know, he got that last injunction before the season even started, and

it's just kind of been open ended. And then like really, you know, over these last two weeks, you know, you have your hearing in the circuit court and then they rule and he's taken off the roster on Thursday, and he's put back on the roster yesterday. And you know, it's a little bit different when it's like an open

ended deal. But now, yeah, tennis match is a good way to describe it, where he's kind of ping pong And I don't believe anybody that would tell me that, you know, this last ten ten or so days hasn't weighed on him or people on this team. Yeah, I do wonder if it's weighing on people on the team as much as weighing on him. I agree with you, it's hard to imagine a world where it doesn't weigh on him, just because anytime there's it's weighing on us.

We have I don't know about it, but yeah, we've been waiting on it, responds and he goes back and forth. There's not a resolution to this whole matter, and that's just us like, and we're not even really involved in any of that, just from the aside from the fact of covering what's going on. I guess the difference is when I when you use the word weighing on us, I look at them more just kind of like this is this big dark cloud. I don't think of it

like that. Now. Is it a distraction? Yeah? I think it's probably a distraction because every few days you're hearing something different that's like, oh so it changed again. Oh okay, well it can't it change again now? Yeah, it can change again tomorrow. Well okay, let's keep an eye on it. And so it is a distraction. I don't think of it as a weight, though. I think of it as a huge weight in the most trivial way possible, because you have to write it. I have to do everything.

I have to feel the texts from the guy I haven't talked to since college about who he should pick up. Yes, Annasey, But do you think on a Tuesday night to write about it? But I care about is that weighing on the players like that? If it's weighing on me and I'm as tangentially related to it as I am, like, it doesn't really affect me all that much. It's yes, nobody affects. What I'm saying is the reason why it weighs on you is because it affects your ability to

go to the fair last night. It affects your ability to be able to have a quiet evening at home. That's the difference. I don't know that this is affecting the players being able to prepare for the game. I don't know if this is affecting the players being able to have whatever time they have a solace. I don't think that affects the players the same way that it affects Maybe not as much, but it has to affect their game plan, like, Okay, what are we doing this week?

Like do we still have Zeek? Are we gonna still have him on the field? Okay? Now are we prepared to get Darren McFadden on here? Like how are we gonna work on opening spats? But do the players get? Is that a way on the coaches? Yes? Is that a way on the players? I'm not a little bit. I think the players kind of they're like, I gotta block the same guy regardless of whether Zeke's running or whether mc patten's running, and probably the same thing. I

see your point, Derek. It probably affects a couple of players, I mean the bag. Yeah, not everyone, but it affects different packages because I mean, I'm not gonna let the Cowboys the coaches sit here and say that we prepare exactly the same because in less and less Alfred Morris gets of the carries and McFadden gets too. Then yeah,

I guess they are preparing the same. But if it's more of a fifty fifty sixty forty split, then definitely things are changing, which means the receiver tight ends packages are changing a little bit. It changes a lot of the offense when you have a dynamic back who's not there. And I get your point, like football players are pretty remarkable about only caring about the assignment directly in front of them for a whole week. Yeah, but I mean,

you know, also this is their friend. I mean, you know, places their friend and their teammate and a guy that we spent a year crediting for being like a big part of the you know, the chemistry in the locker room and kind of the loose vibe and yeah, I don't know, maybe you don't go home and worry about it and refresh your Twitter feed the way I do, because it's my job, But you know, they also he's their friend and teammate and a great player, and not

knowing whether or not he's to be there, not knowing you know, how does that affect our game planning, the plays we can call, the plays we want to run. Yeah, I mean, any like I said, I think they're not telling the truth if it if it doesn't weighing on him a little bit. Has Jason talked about this at all, about how they'll attack this if if he's dere versus not there, or how much they have to change things

if he's deare versus not there. I honestly, it feels like it's been three weeks since we've talked to Jason Garrett. But if we ask him that today, he'll probably just tell us it doesn't matter. Just you know, parking lot Moon try to have the best Wednesday possible with the players that you know the players are here and work with the guys to go Wednesday. Yeah, exactly. Not really much you can do about it anyway. I mean, for from their standpoint, they they have to sit back and

just wait for an answer. There's not really much they can do about it. But it's okay. It's like Nick's it's okay to tell the truth and be like, well, you know, this will affect how we game plan, what we want to do with our running backs this week. Like that's okay, you can admit that without but he won't. He will ever do that. It's not like there's six coaches on the defensive side in San Francisco. They're like, ha, we got it, now start go to work. Now, they're

gonna change it up. Because he said they're gonna change it, Like yeah, how wow, Garrett admitted it. Garrett admitted that it's different having Zeke in the game as opposed to thought on Dallas Cowboys dot com. Go do something about it, right, Yeah, all right, we're still waiting for Daniel Wallack. He's gonna be joining us, joining us here momentarily. Um. In the meantime, I wanted to go ahead and move on to talk a little bit about San Francisco. Um, Cowboys will be

pacing facing the forty nine ers this Sunday. Um, it'll be a three thirty kicks Central time. We'll be out there obviously on the West coast, so it's actually three three oh five, sorry three oh five kick um, And so it'll be a time it's three thirty which way. And I don't know, I mean, we didn't We're gett into crazy predictions already. I mean we haven't even year it was. We haven't even laid it all out for everybody.

We're already crazy prediction. But in fourteen nothing last now, Boys did go down fourteen nothing very quickly last year. And all right, I don't know what's going to happen this time. Dave, give us a give us your scouting report of this offense. Let's talk about the San Francisco offense. Let's focus it on that today. Give us a scouting report of the players and the specific things about this

team that should stand out for fans, good or bad. Well, what's fun for the Cowboys is it's gonna look completely different than you know. I always say I don't go back. I'm not gonna watch all six games anyway, but I don't need to because it's a completely different quarterback. CJ. Bethard's going to be your starter going into this game after replacing Brian Hoyer mid game against UM against Washington last week. And I get it having watched that game,

because it was a punt fest with Brian Hoyer. I think he went four of eleven. They put in CJ. Bethard, they punt on their first possession, then they go touchdown field goal, missfield goal, touchdown, punt touchdown, and they were within two points with a chance to try to win the game, and he eventually threw the clinching interception because he is a rookie draft pick. Huge, huge penalty that changed that whole game. I don't know if you watch that. I was watching a little bit. It was earlier in

the game. No no, no, no no, at the very end of the game. Uh sorry, but Garson with an offensive past interference that was kind of a pick type play, and they're like on the forty yard line, they need about five more yards to attempt to field goal to win the game, maybe ten, and they get fifteen yards back. They don't ever recover from that. It was that that changed everything. I mean, an offensive past interference is a huge penalty when it's accepted, and that one that changed

the whole game for them. Sorry, no, you're fine, people, Which, well that's a that's kind of a theme. And I know, like I just said, the offense is different because they changed quarterbacks, but forty nine ers have had their hearts ripped out, like five weeks in a row. They lost pretty handily to Carolina to start the season. Then they lose by three to Seattle. They lose by two to the Rams, and they lost an overtime on a field

goal of the Colts. They lose to the red Skins last week with a chance to win in the final in it. I mean, I think they've lost five of their six games by thirteen combined points. So they're in the running for the first overall pick. But it's not for lack of trying. They think about this when you see the schedule and you see three road games in a row, I mean three, That hardly ever happens when you do three road games in a row. And what

have they done. They've gone to overtime twice and lost by field goal, and then they also lost this last game by two. I mean, I feel I feel bad for him, like they should. They deserve a win. Only team in the history of the NFL to lose five

straight games by three points, that's unbelievable. But offensively, it doesn't seem like they're doing anything that's particularly good, Like they're length ranked down at the bottom half of the league in almost every category statistically, and well, between that and the fact, I mean you're O and six, you pretty much you're out of it, and between that and the fact that the offense hasn't been great, I think that's why you saw a quarterback change this. You know,

you know Kyle Shanahan gets he's like this. First of all, he's the quarterback whisper, That's what everybody says about him. And he's like kind of an old school West Coast guy. They gave a fullback like crazy money and free agency Kyle juice check and you see that when you watch them, and I you know, I think you're probably in a little bit working with what you have because there's not a lot of guys that really wow you in this

skill player department. You have Carlos Hide, you have Pierre Garson who they signed in free agency, but other than that, there's not a ton of it. And so when you watch these guys, it's like tight ends everywhere. Fullback on the field a lot of times like twelve personnel out

the wazoo. I think, you know, in watching in watching this game against Washington, I think I saw maybe I would I would venture a guest at like five snaps where it was just the offensive line upfront, like just the five guys, you know, like it's usually like seven, maybe sometimes even eight if they want to do, you know, power running plays. And I think first of all, you don't trust your quarterback play, whether because it's bettered because

he's a rookie or Brian Hoyer because he's bad. Uh I mean sorry, Um, so you're trying to give him easy throws, protection, keep guys close to the line of scrimmage. And that's a lot of what this looks like once Bethard went in there. Carlos Hyde has twenty three receptions on the year. He got five of them in this game. Um. George Kittle is another name. I think you really gettle Kittle. Oh, he's another name you really need to know. He's a rookie tight end that they drafted in the fifth round

and they already trust him to do everything. I mean he's out there, he's blocking, he's going downfield. I think he had four catches for fifty yards in this game. Um. Like I said, a lot of a lot of dump offs to running backs, a lot of out routes to tight ends. But Bethard is not afraid to go downfield either. Like he hit some nice balls down the seam and found Garson for decent games A couple of times, but this is a I would call this offense really cautious. Okay,

it's just it's you know, dancing dunks. Like everything that that people said about Dak and the Cowboys last year, That's what this reminded me of. All Right, we're gonna take a really quick break. When we come back from our break, we actually have mister Daniel Wallack on the line. We're going to talk to him a little bit about the legal matters with regard to Zekiel Elliott. We'll do that when we come right back. This is Dallas Cowboys dot Com Radio. We the entertainment loving people want a

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Back to the break Welcome back. We're in the second segment of the breaklock from the SWBC Mortgid Studios, and we're gonna take a little time to get ourselves a little more acquainted with the legal aspects of what's happening with Ezekiel Elliott. We have joining us now Daniel Wallack, who is a sports and gaming attorney for Becker and Poliakoff, and he's also the Coast of Conduct Detrimental. It's a podcast. Check it out if you get a chance. Welcome to

the show, Daniel. Thanks for having me on my debut on the podcast. Yeah, we're very excited. We really appreciate you taking some time with us. I'll just say real quick, the work you've been doing on Twitter has been phenomenal. I know I'm following, and the stuff that you put out there recording regarding this case has been really interesting and for people like us that aren't that aren't legal experts, it helps kind of break it down. So thanks a

lot for what you've been doing there. Yeah, it's my place where all those years of going to law school and practicing law. I guess have you trained me eventually to weigh in on this. And I didn't realize it at the time, but now I just feel every situation that comes up in a federal case involving, you know, an NFL discipline matter I've experienced personally in one form

or another throughout my career. So I think I can lend a unique, uh you know, insights to what I project will likely occur awesome, So give us, give us just a big I'm sorry, Daniel. So you've experienced something like this before, not quite like this, but offense. I've played offense and defense in temporary restraining order practice, preliminary injunctions, appeals, petitions for rehearing on bonk, arbitration vacators, arbitration confirmations. Everything

has just come up. You know. The thing about the legal practice is, while you know, there are no new there are no new cases, just new faces and on this one, and there's probably a few more zeros involved in a few more high profile individuals. But this is basic, you know, sort of federal court practice, but it's elevated because of how hotly contested and the hatred between the union and management. So they take it to the nth

degree and try every loophole, every available legal avenue. And sometimes in real life litigation, the clients aren't going to spend that kind of money. But with the NFL and the players Association, we're talking about not just a principle, but millions of dollars of potential loss salary. So it's more than just a principle here, So give us an idea. At this point, kind of where we are and how

we've gotten here. I know that it started with the case back here in Dallas and kind of got then pushed to New York to kind of give us a big overview in layman's terms of kind of how we got to where we are right now. Well, I mean, we're gonna need two hours if we're going to cover all background. But essentially shortly after Elliott had his six game suspension imposed by committe Goodell, the Players Association had

had a choice to make. Actually before Harold Henderson upheld the discipline the NFL, the Players Association remembered the lessons from the Flate Gate if you remember two years ago, the union was caught flat footed when, while waiting for the decision from Goodell, they had The Union had expected to be able to file a lawsuit in the District of Minnesota, where they have constantly brought these discipline cases over the years, but the NFL controlled the timing of

the decision and whey and was able to quickly file suit in the Southern District of New York, in its home forum. So the Union tried a different tack this time and tried to beat the NFL to the Courthouse by winning the race before the race even started, and that set into motion a whole series of events that led us to New York. And while ultimately the NFL was vindicated on the jurisdictional battle, Elliott and the Players Association gained two very significant benefits from going to Texas.

One was just a mere delay of being able to get an injunction early on at the beginning of the season and have that stretch out into week six. But more importantly, Elliott and the Union now traveled to New York bolstered by two very significant federal court opinions, one from Judge Mazant and one from Fifth Circuit Judge James Graves in the Descent, which give credence to the union's

argument that Elliott was deprived of fundamental fairness. So it essentially lowered the bar for Elliott and the Players Association in New York. And I think it took what was like a thirty or forty percent likelihood of success and

put it into the seventy five percent range. And now we're basically going through a replay of the Texas action in that we're going through a temporary restraining order in two weeks the federal court judge that comes back from vacation will likely schedule a more full blown motion for

preliminary injunction. There will be a hearing, there'll be some additional briefing, and in two weeks we'll likely learn the status of Eliot's I guess eligibility for the rest of the season, because this tro is a temporary victory, but I think it bolsters his chances of success before Judge Faila in about two weeks, and if he can get a preliminary injunction, he's probably going to be safe for the rest of the season, and then the fight will

be over the appeal in the offseason. We're joined right now about Daniel Wallack, who's a sports and gaming attorney. He's talking to us about the Execuel Elliott legal issues. To this point, it seems like most of the rulings have had to do with things that were more procedural, stuff like right venue or timing and stuff like that. At what point or is it ever going to get to a point where the question at hand is the fairness of the process, because we keep hearing that from

the NFLPA. As you said, there are two judges that have now had opinions that point to some unfairness that may have occurred. At what point does that become the main issue and they will be ruling on the fairness of the process to hopefully for the Cowboys get Zekiel It back on the field. Well, that began yesterday. The

jurisdictional and venue battle is essentially over. I mean, the NFL Players Association could still attempt to hail Mary to bring this case back to the Eastern District of Texas where they have a guaranteed victory before Judge Amos Mazant. They have a high likelihood of victory at least on a preliminary injunction before Judge Faila, but there's no guarantee that she will abide by Judge Crowdy's ruling yesterday. I mean, but it's it's highly likely in that we've had three

four Federal court opinions. We've had two from Judge Mazant, one on the preliminary injunction and one on the denial of the stay, and an opinion from James from James Graves and the Descent, and also from Judge Karty yesterday.

All four judges weighed in at various levels on the principle of fundamental airness and either forcefully ruled or hinted at the likelihood that Elliott was deprived of fundamental fairness by being deprived and not having the opportunity to confront and cross examine the accuser of the domestic violence allegations, whose credibility is directly at issue in the threshold that the NFL has to prove under its own personal conduct policy that there is credible evidence to support the allegations.

And if Elliott does not have the opportunity to test the credibility of his accuser, either through direct cross examination or by having all of the investigator's notes, he's being deprived of a very essential thing that's necessary, relevant, and material to his defense and the arbitration. Daniel David Helman here,

Thanks for coming on with us my pleasure. I can appreciate that you're probably not privy to Judge Fayla's vacation plans, so I'm sorry if I'm putting you on the spot, but I'm just that's the one thing that I'm really kind of wrestling with right now is so we know that the hearing has to happen by October thirtieth, but no, No, the tro expires on exactly as a practical matter, Judge Failo will have to schedule something pretty quickly or Elliott will be in a position where the TRO is expired

and then he faces a possible suspension. But here's the reality. If Judge fail is on vacation for two more weeks in October thirtieth comes and goes, you'll see the Players Association file an application with Judge Crowdy to extend the TRO by you know, by a week or more. I've seen that happen in many federal cases. Fourteen days is not the absolute end of the road. It's the initial period of the TRO. So if there's this gap that needs to be filled, Judge Crowdy will fill it. And

that's exactly what I was looking for, I guess. So really, overall, I'm I'm wondering for an idea or a resolution of when we might expect to finally have this settled by Judge fail I guess. But I guess you're saying it's not necessarily a guarantee that it even has to happen by October thirtieth. No. No, again, the big scoop in the world of the NFL is what our Judge fail As vacation plans that is now on par with like

the biggest stories in the National Football League. And someone suggested that she's on vacation for two weeks, but I don't know whether those two weeks are measured from yesterday

or from the beginning of the week. If she's going to be back before October thirtieth, I believe her clerks are going to be in a position, her office is, her chambers are definitely going to be operational while she's on vacation, and she could communicate with her staff by phone, and she's well aware of what's going on, I would imagine, and sometime soon you will see a briefing notice or some kind of order coming from Judge fail As Chambers

setting this down for briefing in an oral argument sometime before October thirtieth, And if she's away and can't handle that hearing, then Judge Crotty will extend the tro by whatever period of time is necessary. I mean, there's an outer or limit how far he can extend it. But I believe you know one week would be permissible under the federal rules of civil procedure. So what we basically know is that she's not having much of a relaxing vacation. Oh no, no, no, she is, she is. It's summertime.

She has hundreds of cases, and I believe she's probably on a beach somewhere and not even thinking about this case. It's her law clerks that are scrambling to kind of figure out how to how to put this matter on the docket while she has hundreds of other cases, including federal criminal trials, which have to take priority. I mean, there's a Speedy Trial Act in under federal law, and her docket is mainly dominated by trials throughout the week.

So for for a preliminary injunction hearing, she'll have to find an hour or two hours, or even a half hour somewhere. But I think that the hearing on the on the PI is likely going to be much longer in duration than the forty five minutes or so that we're allotted to the tro If she has to find two hours in the evening or after her criminal trial concludes for a day, that's when it will take place.

But this will be this will no doubt be scheduled at some point on or about October thirtieth, we're talking to Daniel Wallack, who is a sports and gaming attorney for Beckert and Poliakoff. He's talking us about the Ezechuel Elliott legal battles. One question I have for you was with regards to the Tom Brady case, the deflate gate case.

And We've heard a lot from from different people. I've heard a lot from different people that you look at that case and although Brady was able to play that full season while things were kind of in the courts, there still was this overlying thing that it's hard to It's hard for judges, as as played out in that case just case, it's hard for them to go against basically what the players have agreed to, which is that the commissioner of the NFL is the arbiter in these

cases and he has the ability to be able to say, definitively, this player is gonna miss x amount of time because of this penalty for whatever it was that they felt like they did wrong. Is that the same thing in this or do the issues of fundamental fairness now change that? And cain of court provide remedy for players in these kind of situations because it's not so much about the right of the commissioner to be the arbiter. As much as it is, the commissioner still has to be fair

in how they adjudicate these these particular issues. Yeah, I mean, Dave, you nailed it right on the head. And the Tom Brady deflate Gate case, the NFL Players Association raised the issue of evident partiality and advanced the argument that um um, Roger Goodell was was biased and uh you know, and

the union sought his removal in the Elliot case. Uh you know, the union has recognized that their acquiescence to a to a league appointed arbitrator is enshrined in the collective bargaining agreement, so that that's almost a non starter, and that wasn't raised by the union in their petition.

What they're arguing, however, is that, um, you know, the fact that the NFL can pick and choose its arbitrator doesn't mean that the union acquiesces to a fundamentally unfair arbitration that will always be recognized in the Federal Arbitration Act and by most circuits under the Labor Management Relations Act. And this case is brought under the LMR. But the case law that recognizes and the statute that recognizes the fundamental fairness as one of the limited grounds on which

the federal judge can vacate an arbitration award. I believe that travels to the labor arbitration context. Now, the Brady decision did not foreclose the use of fundamental fairness in future cases. While the court took great pains to state that the fundamental fairness principle is not necessarily recognized in the labor context, every court that has ever addressed it, in the Second Circuit and in the lower federal courts

always analyzes the fundamental fairness argument on the merits. And then we go to the issue of whether the court's finding in deflate Gate is applicable to the Elliot case

and forecloses that argument on its merits. And I don't believe that it does, because in the deflate Gate case, the fundamental fairness argument that the Union raised well, the main one was that they were denied the opportunity to cross examine NFL lawyer and senior Vice president Jeffrey Pash, who was one of the co authors of the Wells investigative report and played some role in editing that investigative report. That is a far cry from the accuser in a

domestic violence case. Now, the Second Circuit's deflate Gate opinion rejected the fundamental fairness argument advanced by the Union because it characterized Jeff Pash as a collateral, meaning an unimportant or less important witness that was cumulative of much of the other testimony from mister Wells and from the findings

in the Wells report. You can't get anywhere more more essential in a domestic violence case than having the ability to confront and cross examiner a cross examine the person who accuses the player of domestic violence. That is the entire there is almost the entirety of the League's case against Elliot, And under the Personal Conduct Policy, the threshold that the League has to establish is that credible evidence

supported the allegations. How can you meet that standard if Elliot can't test the credibility of the testimony of the person who put him under suspension. And that goes to the very heart of the Seventh Amendment and sixth Amendment

right to confront your accuser. While while that principle is not necessarily embedded under the rules of arbitration, which are somewhat less formal, it does fit the I guess the category of fundamental fairness and when an arbitrator deprives a party of material and relevant testimony, well that is tant amount to a fundamentally unfair arbitration. And this is the most essential testimony that you could even conceive of. And in a domestic violence case, the accuser in a he said,

she said situation. All right, Daniel, you kind of said this a little bit earlier when we first had you on, But do you feel like, not to put you on the spot here, but do you feel like there's more than one battle going on here that that you know, we know the NFLPA and the NFL have have had their issues and they're going to probably have more with

with more labor talks coming up maybe next year. Do you feel like this is just the next case in what these two sides are have been battling with each other that you know, there's a there's a precedence here that they want to make sure that as we head into labor talks that you know, that their side kind

of wins here. Yeah, I mean, this case is going to really elevate the critical issue going forward in the labor negotiations because if Elliott prevails on the principle of fundamental fairness, it creates a precedent that the union would be able to establish in future domestic violence cases. We're going to see if if Elliot wins, the accuser will now likely have to participate in future arbitrations under the personal conduct policy, and that creates that could create a

chilling effect for for witnesses and accusers. I mean Tiffany Thompson cooperated voluntarily with the NFL during the investigation. If she knew that she had to testify and the arbitration bebect and be subjected to a withering cross examination from Jeffrey Kessler, she might hesitate to cooperate with the NFL. So this is a huge victory for the union in battling against what they consider to be a one sided

personal conduct policy that was not collectively bargained. So this could create a significant negotiation point when the collective bargaining agreement comes to an end. So that's that's what the league is fighting for here. It's not simply about Elliot's six games, but about reinstating and bolstering its personal conduct policy. That policy would be significantly undermined if the players Association, we're able to score a victory on fundamental fairness grounds.

It would establish a precedent going forward and undermine the victories that the league has achieved under de flate Gate and under the Adrian Peterson case. I mean, while while an arbitrator's evidentiary rulings are generally within the scope of the arbitrator's discretion, there's a fine line between that discretion and then the denial of material and relevant testimony, which

goes to the heart of the case. It really does create some uncertainty going forward for the National Football League and will ultimately lead to more challenges by the players Association and more court challenges of arbitration decisions. And we're going to be in future federal court battles. This is not going to be the last one. If the players win, it does create a significant opening for the union to challenge arbitration decisions going forward. This is Daniel Wallack. We're

talking to him about the Ezechuel Elliott legal issues. Is a sports and gaming attorney. And one more question we have for you. We really appreciate your time. One more question before you leave. So I know there's a lot that we've talked about here, and there's probably some fans out there listening that their heads are spinning at this point. Probably got a lot more law than they really expected or really can even wrap their arms around. So just wrap it up in a bow for us using your

prognosticator hat. What do you think happens at the conclusion of this How do you think this thing all ends? From the standpoint of the next decision it has to be made and the final decision as to whether Ezechuel Elliott wins or doesn't win. Okay, fair point, we'll take this in stages. There are three more court rulings that are going to occur over the lifetime of the Elliot

versus NFL case. In two weeks, Judge Faila will in all likelihood enter a preliminary injunction in Execuel Elliot's favor. She will likely not disagree with her colleague on the Southern District of New York Bench. Senior Judge Paul Croddy is a very respected federal court judge. So when you add up all of the decisions that have been issued to date, the two from Judge Mazant, the one from

Judge Graves, and yesterday's TROO order from Judge Crotty. The NFL Players Association is now armed with four significant federal judicial opinions that I think allow it to clear the hurdle of the likelihood of success on the merits. The Judge Failure does not need to be persuaded that it's certain that Eliot will prevail on the merits. There just has to be a likelihood of success, and he already

has established that. And the key issue for me is the irreparable harm if if Elliot misses any games because he's denied a preliminary injunction, let's say he would later win this case on appeal, Eliot will never be able to recapture those games. They're gone forever. No federal court has a time machine to restore that playing time. So I think the status quo will be maintained on a

preliminary injunction. And if a preliminary injunction issue, then it makes it much more likely than not that Judge Failer will ultimately rule on the merits for the Players Association on the principle of fundamental fairness. That decision could be as quick as a month away. Because I believe all of the briefing on this case is pretty close to complete, and her decision on the validity of the arbitration award will be based entirely on the arbitration record, which has

already been completed. While Jeffrey Kessler will be eager to take Roger Goodell's deposition, I'm not certain that the judge will allow open end to discovery in this case. So I think you're going to see a decision in favor of Elliot on the preliminary injunction in about two to three weeks or less, and then a likely victory for Elliot on the merits of the motion to vacate the arbitration award, and you could see that come down at

some point in November. And then we head to the second Circuit Us Court of Appeals, and the sixty four thousand dollars question is whether the second Circuit will come out with a ruling that distinguishes the deflate Gate decision. Now we will I cannot prognosticate or predict how the Second Circuit will rule without knowing the identity of the three judges who will serve on the panel. For example, if you have two democratically nominated two Democrats, one Republican. Well,

that certainly bolsters Elliot's chances. If you have one of the same judges that ruled for Elliot that ruled for Brady in to flate Gate, well that's a good thing. But if Barrington Parker and Danny Chinner on that panel,

it's probably curtains for Elliott. And I believe at the end of the day, Elliot is holding a very strong argument on fundamental ground fundamental fairness grounds, because Brady and Elliott are light years apart, and one can easily distinguish Jeffrey Pasha's testimony in de flate Gate or the necessity for it from the essential core of of Miss Thompson's testimony, which goes to the very heart of the case on

the continuum of material and relevant testimony. If pass is a one or a two, will certainly Tiffany Thompson is like a ten or eleven, And I believe that's where the two cases part company. And even under the second Circuit ruling into flate Gate, I think the panel of three judges would likely side with Elliott on the issue of fundamental fanners. But it all comes down to the luck of the draw and which three judges are assigned to the appellate panel. All right, we really appreciate you

taking some time. Was really informative. We learned a lot and we'll hopefully stay in touch if some other legal issues come up, or certainly as this case continued, you'd love to have you back on. It would be my pleasure. Thanks for having me on today. It was a lot of fun. All right, Thanks so much. Take care all right. That was Daniel Wallack, who is a sports and gaming attorney for Becker and Poliakoff, and he also has a podcast of his own Conduct Detrimental. We had a lot

that he said there, Well, let's take a break. When we come back, we'll kind of digest a little bit more of that. See if we can get back more into the San Francisco game as well. We'll do that in the final segment, This is Dallas Cowboys dot Com Radio. To work this big land, you need equipment with values did as deep in Texas soil as you are, like John Deer, Compact tractors with a six year power train, warrant to hi big features that help you work less so you have more time to do what you love.

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A live from the SWBC Mortgage studios at the Star, and that was a really interesting segment that we had there. We had a Daniel Wallace joined us who was an attorney who was able to give us some really good insight into the Execuel Elliott case. I'll throw it out to you guys, like, was there any what thing if you had one thing, what one thing did you learn there that you didn't quite know whether it was kind of hazy to you that you can help make sense

for fans. Well, for me personally, that whole that was great, But it was kind of like like have you ever walked on a log, you know, You're just like, oh, all right, I got this, I got oh, I'm gonna fall, Okay, caught my balance. Like That's how I felt like the whole time, just trying not to lose my grasp of what he was talking about. Yeah, me personally, the background

information was really great. I feel like, you know, I've been knee deep in this stuff for long enough that I had a pretty good grasp on all of that. But the big thing I just I wanted to know more about what to expect in these next two weeks. And I think, you know, I get you know, it's it's his life and his reputation, and there's more important stuff. But I think most fans just want to know Okaya playing, when he playing? When? When can he play? How do

we know when he can play? What's the likelihood? Yeah? So, I mean, you know, it's it sounds to me it's not a guarantee, but it sounds to me from talking to him that I would I'm leaning toward thinking Zeke will be there for the Redskins too. Yeah, and then who knows where it goes from there. It's like even more than that, well, yeah, way he the way, If it goes the way he says it goes, then he'll be there play. Yeah, I'm not ready to. I'm not

ready to take that leap just yet. But so October thirtieth is the day that I kind of have circled in my mental calendar. What I'm curious and I didn't ask him this, I thought about it, is you think is it a coincidence that she's on vacation? Just just the coincidence. I don't think there's some big, grand conspiracy. I mean, why would there be. I'm not saying that it's a conspiracy that she's on vacation. I'm saying, is it this is just this is the judge that has

to see this case. Well, when it gets to a court, it gets to a court by procedure, there's procedure that puts it in specific courts. And so yeah, I wonder if I don't felt PA maybe sought out this situation so they could. But that's the point. They don't get to choose which court. Like, if they want to choose which court, they'd be back in Dallas. So I don't know that they get to say, hey, this judge is gone, let's use this court. I don't think it works like that.

I don't think it does either. Okay, I have a question, and I'm not sure if he kind of talked about it or not. Again, I was going up and down. Well okay, I'm understanding. Okay, Well now I'm kind of confused. Okay, to clear this thing up, we're fighting or they are fighting against the whole fairness of the case. Right, Let's say they say, okay, yes he was indeed treated unfair. Now from that point, does he go to another court and now they're actually hearing the whole case of what

really happened here. Let's hear both sides. I actually think the way he was talking about it, that actually is taking place at this point, because he said before and that was the question I had for him about the procedural things that have been ruled one at this point. They were talking about the timing that they filed it before the arbitration was done, and the venue they did it in Dallas, it should have been in New York.

So it's like, those are the procedural things that have already been ruled one at this point, from what he was saying, the injunction at this point, that's up, that's before the court that is going to look at things like fundamental fairness, and so they are already looking at and really what they're deciding right now is not necessarily the case of what happened and whether he was unfairly treated.

It's more that they're trying to determine is there a likelihood that he was unfairly treated and that should matter in this case. So if that's the case, we need to allow him this injunction so that in the meantime he could continue to play while the court here's all this stuff, while the court here's the case, while the court deliberates on the case and before the court can

actually make a decision on it. So it's really just right now they're trying to figure out is this a likelyod It's almost like you're in that process of figuring out is this a case worth hearing? And if it's a case worth hearing, then you need to give him time to continue to play if you believe that, again he can lose something that he can't get back, and then we would know if in fact he did commit

domestic violence or not. Right, I don't know that they will ever judge on that, but they're judging on what they're judging on that's already been judged by the NFL. The courts, as far as that's concerned, they decided there wasn't enough to even have a case. If you remember back before all this started with the NFL, the courts already decided that. So the courts right now are not

deciding whether he's guilty or innocent of domestic violence. What they are talking about is was the process fair in the NFL determining that he should be suspended? And I get I guess the ruling of the NFL when it comes to that. I think, obviously if he was treated unfairly, it kind of goes into the whole case itself, like whether he was, let's say, innocent or guilty, you know

what I mean. So the fact of giving him the time or whatever for him to provide all the information that needed to be provided and having Tiffany be up there in front of him and saying everything. I mean, that plays into the case and I don't I don't know how to really explain it. It goes into the whole unfairness thing, but at the same time it goes to is he guilty or not? Aside from that, That's where my head kind of gets fuzzy, Like I put

the fairness aside. Even if he was treated fairly, do we have enough proof to where we know if he did it or not? And I don't think there is. I mean, at the NFL had enough proof where they felt like there was a likelihood that something happened inappropriately, right, the court said in the very beginning there was not

enough evidence for them to even take it to trial. Right, So if you're trying to get an answer on whether he did it or not, I'm sorry to tell you, but I don't know if there's enough proof one way or the other to say, really did it or did The material is out there and you can go read it and look through it and come to your own determination about you know, how you feel about it. Who you feel is, oh, I've looked through all that. Well that kind as much as you're gonna that's all you got.

You gotta you make a determination about how you feel about it. But that's I guess for me to feel good about this whole thing and come to resolution for my own you know inside and my own mind is to have both of them in front of me. See Tiffany, do your own investigations aside. Let's put aside the whole fairness of the lead, you know which, I'm glad that fine, if we work. Can we do that on the break. Let's do it on the break. Everyone says what actually happened?

We hear both sides right in front of each Let's see if they can both tell them. I mean, you know, what's interesting that you say that? And I don't know if you have to be a female to have this perspective. I don't think you do, but I'm curious. It's like it's kind of feels weird to like be rooting for Zeke, you know, just because he's on this team and all that. I mean, it seems like maybe what you're saying is is that you want to know kind of what happened here?

Should I want you to to win this thing? Or should should you not? Do you deserve to win? And see, that's the thing we don't really we know. And I think that's what's so weird about this whole case with the NFL and and why I kind of asked that

question about moving forward. I think this is a really big case for you know, does the NFL really get to play judge and jury here because you know, the court system in Ohio didn't think it needed to go to trial, and now that they're you know that they thought,

well it's worthy of six games. So this is going to be a really big case in the new Labor talks about how much power Goodell and the NFL really has well, And that's It's It's convenient in a way because I think you can compartmentalize this whole thing like between like this is about domestic violence, but it has become about something completely different, Like you can at least I can separate the two and say it looked like one way or another, some schiv stuff happened here, Like

this doesn't look good based on you know, court testimony, witness testimony, whether it's conflicting or not, whether it's all true or not. There's some bad stuff going on here that's not great. But then I can look over here and everything that's happened since then, how the NFL has handled this, the fairness of how they did it, and

I can say that's not right. And you know, regardless of how guilty or innocent he is, the process that the league goes through for all this stuff is wrong in my opinion, and so you can almost kind of have it both ways, and like I don't I don't have to condemn or exonerate Ezekiel Elliott to know that this is messed up. Well, I agree, you can kind of I look at it as almost two completely separate factors.

And what I think this go ahead and I was just gonna say that that's absolutely agree is two different things. But to me, it's really sad that the whole procedure thing is kind of taking over something that could have like if it did indeed happen, like that's something very important, Like you know that that's a real deal right there. You know, you can't just let something like that just fly by and know, we're cool here, we're good. Let's

just focus on this whole procedure and stuff. That's where I guess I just kind of get upset about this whole thing, is that that has taken the light of the whole case, the whole procedure, and not really focusing on what actually happened. You know what, That's a great point, but let's not forget the NFL took thirteen months to do this investigation, thirteen months on something that, excuse me, thirteen months that the court system in Ohio already threw route.

So and then they made a decision before the season. I think that they kind of thought that they would just kind of take it and go and and Zeke has fought back on this. And think about this, anything that you spend a million dollars on, you probably have some kind of passion whatever it is, whatever cost a million dollars. And when it's all said none, this is gonna be about a million dollars for Zeke and legal costs. So, I mean, he obviously feels like he's got a case here.

You don't. You don't spend that much money for it. So I agree with your point that technicalities are kind of taken over this, But the NFL kind of opened this can of worms when they opened up the investigation, took thirteen months to do it, and did it right

before the season. Of course you're going to fight back, but I think the thing has to be pointed out here Amber, particularly to to what you're saying, is that the courts of the legal authorities already have weighed in on this, and what they weighed in on was there

is not enough evidence here for us to sewercase. And so I think and that's I think this whole thing kind of highlights the problem with the NFL getting into the business of judging players, because if you think about it this country, there's a lot of rules, there's a lot of laws, there's a lot of there's their constitutional amendments that are made for the purposes of making sure that the rights of the accuser are protected and that how we adjudicate wrong crimes is done the right way

and done by a certain procedure. And when the NFL gets into that business, now the NFL has to live according those things. As well, and they're not suited for that, Like this is a this is a football organization. They are not suited to to be able to properly as a court would properly adjudicate a like say, adjudicate because it makes you sound it does make me sound smart.

But my point is, My point is that I think that's the problem in this whole thing is that the NFL is not, I don't think properly equipped to handle these kinds of things in the way a court would. And if you want to have some kind of guidance on what actually happened, I think you have to go back to the legal authorities who originally said, hey, there's not enough stuff here, because there's so much gray area

around this whole thing. There are there are lots of inaccuracies, and there are a lot of things that have been said that that point to the fact that there's not enough evidence here for us to be able to even take this to trial, not let alone say he's guilty or innocent, but to even take it to trial. That's what gives me a little more solace in the fact that it's hard to believe that then he should have

to sit for six games. If a court already said there's not enough hear of for us to even you know, take to court. I agree, And I guess the way I see it, or where I come into this whole mass in my head is the fact that, yeah, they said that, but again, you don't ever really know how much you can trust, like sometimes the system is not always perfect, absolutely, but that's all you have. Like, yeah, yeah, but there's nothing better than the system. We don't we

don't know. But okay, the court made that decision, all right. Then the NFL comes in, and to think that they went through all this trouble and all this time and actually going against what everyone expected and going against what Jerry Jones has said to begin with, you would think that they have enough to back that up. Right, So now you have what the course said and what the NFL is saying. So looking at both of them, it's it goes back to him versus him type of thing,

like one person versus the other. Right, you know what I'm saying, I don't understand, like you say this thing, this one thing now, Nick is saying this one thing right now, it's one against one of what each party believes that happened right now. That's where I'm like, Okay, I want to know what actually happened here. And although we have seen all the whatever they listed that Tiffany said and this and that, it just gets a little. It creates more questions about the whole thing, and it's

just it's big. It became really messy and created a lot of confusions and questions, and I guess I'm at the point to where, Okay, if Sik is indeed going through all this trouble too and putting out all this money and time and effort, I would say I would hope that he is, in fact, you know, innocent, And even though we might not ever find out what actually happened there, whether he was innocent or not, I think that maybe by him doing all this, that does give

people another perspective of maybe create an idea of like, Okay, maybe he is innocent, and now let's just focus on, yeah, the whole mess of how the NFL handles every situation in case and all that where there's a ton still left to go. It sounds like and obviously the next couple of weeks they'll be at least one decision that will further this thing and kind of move this thing

along a little bit more. What we do know is that Ezekiel Ellet will be there to play against the San Francisco forty nine ers this Sunday at three oh five Central time, And so tomorrow we'll jump into that and talk about the San Francisco forty nine ers and what the Cowboys can't expect when they faced them on Sunday. Till then for Nick Eaton, Dave Hellman, and regard see, I'm Derek Egels and this has been In the Break

live on Dallas Cowboys dot Com Radio. This has been a production of Dallas Cowboys dot Com and the Dallas Cowboys Football Club.