This article is part of our East Coast Offense series.
The Zeke Elliott Case
I actually bothered to read Judge Failia's decision denying Elliott's injunction this morning, and while some of it is coherent (if not necessarily persuasive), much of it is flat wrong, insofar as we deem the words "irreparable harm" to have any common-sense meaning.
The NFLPA (Elliott) had to prevail on three points for the injunction (the mechanism temporarily preventing the NFL from imposing its suspension) to persist: (1) that the case was likely to succeeed on the merits (or at least raised serious questions going to the merits and had the balance of hardships tipping toward Elliott); (2) that should the injunction be lifted Elliott would suffer irreparable harm from a suspension; and (3) that the injunction is in the public interest.
Let's take them one at a time.
The court argued for (1) that it doesn't lightly mess with arbitration decisions in labor disputes even if the arbitration proceeding was "fundamentally unfair" or the arbitrator "committed serious errors." So it's game over right there, even though the court conceded the Second Circuit (whose precedents govern the law in the Southern District of NY) never explicitly said "fundamental unfairness" was irrelevant.
Failia further argued even if she felt empowered to overturn the arbitrator's decision on the basis of unfairness, his decision was not in fact unfair. For starters, she argued, it was not unfair to exclude lead investigator Kia Roberts' recommendation not to suspend Elliott because they passed along that Roberts found Elliott's accuser insufficiently credible. Accordingly, the judge believed that neither her presence nor her conclusion regardling Elliott's discipline was necessary.
The NFLPA (Elliott) made other objections regarding fairness (like not being allowed to cross-examine his accuser and the arbitrator not forcing Commissioner Roger Goodell to testify, presumably so they could ask him why he excluded Roberts from the disciplinary meeting as well as the hearing, among other things. Basically, the judge said the arbitrator lacked the power to compel those witnesses to testify.
In sum, the judge believed Elliott's case for injunction lacked merit because she had no power to examine the arbitrator's decision for unfairness, and even if she did, it was fair because the arbitrator had no power to compel witnesses, and neither the arbitrator nor the NFL had any obligation to include its own lead investigator in the proceedings.
Defeating that prong alone was sufficient to scuttle the injunction and bring on the suspension, but the judge took it further, attacking prong (2):
While it is a closer question, the Court finds that the NFLPA has also failed to establish a balance of harms that tips decidedly in its favor. The NFLPA's arguments on this point echo its arguments for irreparable harm, and the Court will focus on them here. It argues principally that if a preliminary injunction does not issue, Elliott will suffer irreparable harm consisting of missed games, which could lead to lost opportunity to attain individual awards (such as Pro Bowl selection), and "significant monetary losses" that would be unquantifiable "because of the snowball effect on Elliott's reputation, earning potential, and overall market value." But these alleged injuries are either speculative or deserving of a monetary award rather than an injunction. To support the notion that missed games constitute irreparable injury, the NFLPA points out that an average career in the NFL is "short and precarious." Even so, just as in other professions, future economic injuries such as lost profits are compensable through monetary awards. See Buckingham Corp. v. Karp, 762 F.2d 257, 262 (2d Cir. 1985). And any individual honors Elliott might attain absent suspension depend on countless variables - such as the Cowboys' overall offensive performance, his opponents' defensive performance, and Elliott's health - that together render this alleged harm far too speculative to justify injunctive relief.
Actually, it's the opposite. The economic loss is what's speculative, and that's what she's suggesting as the remedy should Elliott (NFLPA) ultimately prevail on the merits in a suit. What's decidedly not speculative is the damage to Elliott's career, the squandering of six games during his prime and potentially a season the Cowboys (who are ostensibly competing for a Super Bowl) can never get back. She begs the question here, concluding that economic harm is the real risk, and then dismissing it as speculative. The whole question is whether there's something non-economic that can't just be fixed later with a payment should Elliott prevail were the case to go forward.
She continues, partly addressing prong (3), the policy implications of upholding the injunction:
Any such harms, moreover, are counterbalanced by the harms identified by the NFLMC in its papers and at oral argument. Having negotiated with the NFLPA over the terms of a particular CBA, the NFL has an interest in obtaining the benefit of its bargain - an interest that might well be eroded if courts such as this one were permitted to micromanage the disciplinary decisions of the Commissioner. What is more, the NFL has a critical interest in ensuring player compliance with the PCP, particularly in the area of combating off-the-field misconduct. Indeed, all parties to this litigation are keenly aware of recent criticisms of the NFL's efforts to redress and combat domestic abuse by NFL players. Put simply, Elliott's personal concerns, while not insubstantial, are outweighed by the broader, league-wide concerns proffered by the NFLMC.
Essentially, it's even more irreparably harmful to the NFL not to have limitless power to suspend players, even in cases where the arbitration process was fundamentally unfair because that's the process agreed to by the parties. Even to make the NFL establish a basis for the suspension on the merits is irreparably harmful. If the NFL establishes such a basis and suspends Elliott next year, it won't undo the terrible harm of not running a complete autocracy as agreed to in the CBA.
Moreover, the NFL has gotten some terrible PR for its cavalier handling of domestic violence cases in the past, and while Elliott's personal concerns (reputation as a domestic abuser, prime season in his career he can never get back, a chance to win a Super Bowl) as well as vast financial benefits attached to that are "not insubstantial" he's got to take one for the team here - even if he didn't do it - because the NFL botched the Ray Rice case, among others, and now it's in its interest to look tough on domestic violence.
Bottom line, this is a weak decision, and I'd be trading (a small asset) for Elliott now, even though any appeal would go to the Second Circuit, the same court that allowed the NFL to suspend Tom Brady, despite similar fairness issues during his arbitration hearing. While the court is likely to uphold it, anyone who follows the NFL can see the irreparability reasoning is backwards, and perhaps it'll call into question Judge Failia's other, more plausible (though hardly ironclad) bases for denying Elliott's injunction.
Incidentally, two caveats here: (1) I'm not presuming to comment on the underlying merits of the case. It's quite possible, Elliott did commit domestic violence, and it's also possible he would lose at trial, and the NFL would suspend him next year. But in that case, all the facts would come out in a fair hearing and not a kangaroo artibration proceeding where key witnesses were excluded; and (2) I am (plainly) not a legal expert.
QB Slides
Joe Flacco nearly got decapitated in Thursday night's game during a slide by Miami linebacker Kiko Alonso, losing his helmet in the process (The day a helmet comes off and the head is still in it is probably not too far off.) It was a 15-yard penalty, but on looking at the replay, Flacco went into the slide pretty quickly, and Alonso was coming at him fast. While Alonso probably could have lightened up, I'm sympathetic to defenders whose job it is to deliver massive hits having to detect a change in trajectory at the last second every time a quarterback decides to go down. Moreover, running quarterbacks exploit these rules by looking like they're going out of bounds and stealing a few extra yards on the sideline, knowing defenders have let up. These are judgment calls, but the refs should take into account how rapidly the QB went from running to sliding, how far away the defender was and how long the QB had been on the ground before he was hit. (I can't remember the play, but in my notes, I wrote there was an even worse instance of this on a Dak Prescott slide.)
Jimmy Garoppolo to the 49ers
It's ironic the team known for its ruthlessness and lack of loyalty when moving on from its veteran players chose to keep its 40-year old star quarterback rather than his presumed successor. After all, the Packers moved on from Brett Favre for Aaron Rodgers, and the 49ers jettisoned Joe Montana for Steve Young. Of course, Montana had been injured, and Young was already a star, and Favre had apparently slipped since his peak in the late-'90s. (Though Favre had a vintage-level year in Minnesota and nearly made it to a Super Bowl, and Montana took the Chiefs to the playoffs in the 1993 season.) Brady, on the other hand, is ostensibly still at his peak, coming off a Super Bowl win and carrying a streak of making the playoffs every year since 2003 (the year the Patriots missed, 2008, he tore his ACL in Week 1.)
In truth, there wasn't much else either side could do. Brady intends to play for at least several more years, and Garoppolo turns 26 in two days, i.e, he couldn't have been happy squandering half his career as a backup with no prospect of winning the job. Moreover, as ruthless as Bill Belichick has been with cuts, and as well as it's worked out, I doubt he could axe Brady even if he thought it were the right long-term move. Brady has a chance to set every passing record in history, assuming he can outlast nearly-39-year old Drew Brees by a year or two, and he's shown no sign of slowing down.
As for the Niners, this was a shrewd move because it buys them half a season to audition Garoppolo before deciding what to do in next year's draft. If he's a keeper, they can use their picks elsewhere, and if he's not, they know they need to get a quarterback. Either way, it seems the C.J. Beathard era was positively Hobbesian - nasty, brutish and short.
Week 8 Observations
•Deshaun Watson blew me away. He had put up massive numbers and looked good doing it, but it was all against weaker defenses like the Chiefs (surprisingly bad against the pass and run), Browns, Patriots and Titans. In a game and a half against the Jaguars and Bengals, he barely did anything. But to light up the Seahawks for 402 yards passing and 67 on the ground was bananas. No one in NFL history had ever gone 400/50, and Watson did it in the NFL's most difficult building – as a rookie. At the risk of stating the obvious: Watson is the No. 1 fantasy QB by a mile, and arguably a top-10 overall pick. He has a legitimate chance of being the greatest fantasy QB of all time because he combines Russell Wilson's skill set with Brett Favre's willingness to take risks. And his defense is so banged up, Watson should be in plenty of shootouts.
• It's now incomprehensibly astonishing Bill O'Brien picked Tom Savage over Watson for Week 1. If he couldn't tell Watson was better after watching the two closely all offseason and preseason, he should be disqualified for any job that requires talent evaluation. I'd put more faith in a blind person judging a beauty contest.
• Speaking of O'Brien's incompetence, it doesn't end there. For the second time this season he gifted away a game by punting to an all-world QB that had gashed his defense all game, rather than trusting his star QB to make a short gain to seal the win. Here's what I wrote after Week 3:
The Patriots probably should have lost this game, but Texans coach Bill O'Brien did something so moronic, it boggles the mind even to contemplate. Up two points with 2:28 left on the Patriots 18, O'Brien on 4th-and-1 kicked a short field goal to go up five. A one-yard gain effectively ends the game, but O'Brien thought he'd rather take his chances kicking off to Tom Brady and playing defense. While this is not as bad as doing it up three (in that case the field goal doesn't even beat you), O'Brien gave away a ~60 percent chance to win on one play in order to defend against the TD rather than the FG. Put differently, O'Brien had two ways to win (get the first down, prevent the FG) and traded it for one (prevent the TD.)
For those who argue he trusted his defense, that's not true. If he trusted his defense, then he'd have known that it was worth giving his offense a chance to win it outright because his defense could prevent the Patriots from driving into field-goal range in the event the fourth-down play failed. Instead, he didn't trust his defense to prevent the field goal, so he gave up on winning the game with his offense to give them more leeway, a move that not surprisingly failed against arguably the greatest quarterback of all time.
And O'Brien did it again, choosing to punt the ball back to Russell Wilson on 4th-and-2 rather than putting the ball in Watson's hands – the same hands that had racked up 469 total yards and against a defense that was more tired than at any point in the game. Moreover, even had Watson failed to convert, the Seahawks were still down four, i.e., they couldn't tie the game with a field goal. So the Texans still would have had a chance to win on defense from the 28-yard line. Instead, O'Brien traded the roughly 65-percent chance to seal the game completely for 45-odd yards of field position. It was an awful choice – even before knowing what actually happened, including the Seahawks getting to the Texans 30 (just about where the ball would have been had they failed on fourth down) on their first play, a 48-yard catch from Paul Richardson against an exhausted defense.
• Watson's ascent to the top of the QB ranks doesn't happen in a vacuum. I also have DeAndre Hopkins, who showed good speed pulling away from the entire Seattle defense on an intermediate route for a 72-yard TD, ahead of Antonio Brown. The Steelers passing offense isn't what it was, and Hopkins is a lock to be among the league leaders in targets.
•Will Fuller scored two more times and was tackled at the two-yard line on a separate occasion. His TD rate is a running joke among the statheads, but he strikes me as basically peak DeSean Jackson at this point, and that's a major compliment. Fuller, like Jackson, is also perfect complement to Hopkins because he forces the defense to cover the entire field but without being a target hog himself.
•Lamar Miller saw a heavy workload and scored two touchdowns in part because D'Onta Foreman didn't see a single carry. Apparently, according to O'Brien that Foreman skipped Friday's practice in protest of owner Bob McNair's "inmate" metaphor had nothing to do with Alfred Blue getting five carries instead. Prior to Foreman skipping the practice he had logged eight, 13, four and 12 carries, respectively, in each of the four preceding games. Blue, had logged four, zero and zero, respectively, since he got healthy.
•Russell Wilson is the closest thing to Watson, though he has a worse offensive line, a better defense and a little more restraint. Even so, he went for 452 yards in the air and 30 more on the ground, actually outproducing Watson by 13. The Seahawks always seem to turn it on in the second half, and Wilson's fantasy stats spike with them. This year, Wilson is throwing more than ever, and is arguably the No. 2 QB, after Watson.
• The Seahawks running game is the worst in the NFL. Eddie Lacy and Thomas Rawls combined for 12 carries and minus one yard. Put different, given six carries apiece, Lacy outproduced Rawls zero to minus one. J.D. McKissic led the backs with four carries for six yards.
• The Seahawks' receiving tree is a bit wider than the Texans', but it's really only four players: Doug Baldwin, Tyler Lockett, Paul Richardson and Jimmy Graham. There should be enough to go around for all four, with Baldwin as the star and Graham the frequent red-zone target.
• If kneeling during the anthem is such a distraction, why did arguably the best game of the year occur after the most kneeling of the year took place?
• After a rocky start to the season, Ben Roethlisberger looks more or less like himself. He did a nice job of hanging in the pocket for as long as it took while keeping his focus down the field. Juju Smith-Schuster made some huge plays, though he dropped a perfectly-thrown pass on a potentially key third down.
•Antonio Brown always gets something, in this case five-for-70 against a tough corner in Darius Slay.
•Le'Veon Bell had a modest game by his standards, but you can live with 25 carries, three targets and all the goal-line work (including a TD.)
• Stafford actually threw downfield more this game and was successful against a tough Steelers pass defense. Stafford's offensive line gave him a ton of time, which is surprising given the team's inability to run. It was arguably the quietest 423-yard game in NFL history, though.
•Ameer Abdullah is okay, but nothing special. He also gets subbed out on some third downs and goal-line packages. The upside is modest.
•Marvin Jones was Stafford's top target and made some nice downfield catches, but you rarely see him beating the defense in stride for a score. Golden Tate looked reasonably healthy in his return, and T.J. Jones made a few big catches too. At some point, Kenny Golladay will presumably be back.
• If Justin Tucker is the best kicker in NFL history, Matt Prater is one of the 10 tied for second place.
• The Cowboys offensive line has looked like itself the last two games, and Zeke Elliott has been the most valuable fantasy player over that span. I doubt Alfred Morris or Darren McFadden will come close to Elliott's production if his suspension holds, but as long as the Cowboys commit to one of them, he'll be worth owning. (I'd bet on Morris for now.)
•Dak Prescott was largely a game manager in the rainy weather, and no Cowboys receiver did anything of note. Game flow, aided by a game-turning blocked field goal at the end of the half, was also to blame.
•Jordan Reed got hurt again, and at this point, anything you get from him the rest of the way is a bonus. Josh Doctson caught a one-yard TD but was otherwise useless, and Terrelle Pryor had one target and no catches.
•Jamison Crowder is Kirk Cousins' top target now, with a 13-9-123 line, but he's a possession receiver who often lines up in the slot and doesn't solve the team's downfield playmaker problem. Between Vernon Davis, Crowder and emerging star RB Chris Thompson, the Redskins do occasionally make big plays, but it's probably not sustainable. They badly need one of their big, physical outside wideouts to challenge opposing defenses. Rob Kelley, another player incapable of making a big play, led the team with eight carries, while Thompson had four (along with his eight catches for 76 yards.)
• There's not much to say about the Panthers-Bucs game except that it wasn't good, and the Panthers have a good defense.
•Carlos Hyde is involved every game, but there's nowhere to go and not much to do. Things could improve under Garoppolo, though.
•Carson Wentz didn't have a good game, and once again he spread out his targets among nine receivers. Alshon Jeffrey made a highlight reel TD catch, and Zach Ertz got his obligatory score, but that was about it. LeGarrette Blount led the team with 16 carries and a TD, while Corey Clement was more efficient on 10. Wendall Smallwood saw only one carry and two targets.
• You thought the Julio Jones red-zone TD was the start of things to come? LOL. Jones had only six targets, the same number as Austin Hooper and one fewer than Mohammed Sanu. (One of them was a badly-thrown fade, however.) Hooper caught one TD and dropped another. He has some upside as a red-zone target, but honestly, it's hard to trust anyone in this offense when they won't even commit to Jones.
•Tevin Coleman had a good game with Devonta Freeman nursing a minor shoulder injury. I don't expect a major change in their respective roles.
•Robby Anderson is quietly having a good season, thanks to being the No. 1 target on a team with a reasonably competent QB. The Jets can't run, but Matt Forte and Bilal Powell were both involved as receivers.
• The Bears didn't hide Mitchell Trubisky, and he managed only 5.1 YPA and threw a pick. He showed some scrambling ability – 53 yards.
•Jordan Howard is a rock, able to handle a heavy load each week without becoming inefficient, and he even chips in with a few catches.
•Zach Miller had two targets and no catches in the box score, thanks to the TD he caught while dislocating his knee being inexplicably overturned. Apparently, you have to have all your ligaments intact to complete the catch.
• The Saints are now a run-first team, and Brees is no longer a top-three QB. Brees passed for 299 yards on 10.7 YPA, but did not throw a TD. Instead Mark Ingram scored twice and Alvin Kamara once. Ingram also fumbled twice, but I doubt Sean Payton will re-sign free agent Tim Hightower to take Ingram's job, despite what must be overwhelming temptation.
•Michael Thomas is basically a more durable Keenan Allen at this point, a good intermediate route runner with solid hands.
• The Patriots defense has played better of late. After allowing an 87-yard TD run to Melvin Gordon early, it allowed only six points and limited yardage the remainder of the game. Chargers head coach Anthony Lynn gave them a nice assist, though, opting for a 51-yard FG attempt on 4th-and-1 with shaky Nick Novak rather than trying to extend the drive and score a touchdown. Going for it is almost always he right play, but especially when you're a significant underdog.
•Travis Benjamin saw nine targets, Tyrell Williams six and Keenan Allen five. This is also an offense that spreads the ball around so much, it's hard to count on anyone, least of all Hunter Henry who had only two targets.
•Dion Lewis led the Pats in carries with 15 but he managed only 44 yards. Mike Gillislee had 11 carries for 34, only marginally better.
• Talk about taking dink and dunk to a new level, Brady's two leading receivers were running backs: Rex Burkhead went seven for 68 and James White five for 85. Brandin Cooks had eight targets, but only five catches for 26 yards, and Rob Gronkowski was relatively quiet but scored the obligatory touchdown. Chris Hogan got hurt and had his arm in a sling after the game. An extended absence would open up catches for somebody, maybe Danny Amendola or more of a downfield threat like Phillip Dorsett.
• The Bengals offense is disappointing. The team needed a fluky pick six to bail them out at home against the Colts. The offensive line still can't open running lanes, and the team isn't generating any downfield plays to A.J. Green of late, either.
•Joe Mixon was stuffed at the line of scrimmage (11 carries 18 yards), but made an impact as a receiver – three catches for 91 yards.
•Jack Doyle is Jacoby Brissett's favorite target – he saw 14 to T.Y. Hilton's seven. Not quite the Martavis Bryant treatment, but the squeaky wheel sometimes gets ignored. Doyle is a top-eight TE now.
•Frank Gore outperformed Marlon Mack. That'll buy him two more games at least unless Chuck Pagano's fired.
•LeSean McCoy had 27 carries and seven targets. That Le'Veon Bell territory. Consider him a top-five back.
•Derek Carr is a league average NFL quarterback.
•Amari Cooper came back to earth in a hurry. Both he and Michael Crabtree had 10 targets, though. DeAndre Washington also had 10 targets and caught a TD, though he had only six carries.
• After an anomalous role reversal against the Ravens, Jerick McKinnon was far more productive and efficient than Latavius Murray in London against the Browns. McKinnon is a top-15 back, Murray someone you start if you're desperate.
•Adam Thielen scored his first TD of the year and is quietly the NFL's No. 2 receiver yardage-wise. (DeAndre Hopkins would be ahead of him but for having already had his bye.) Stefon Diggs seems healthy again, and his role should increase after their Week 9 bye.
•DeShone Kizer didn't throw a pick, but 5.3 YPA, three sacks and no TDs isn't exactly a foundation on which to build. Isaiah Crowell had a decent game, outproducing Duke Johnson, especially as a receiver. The rest of the Cleveland receivers are unrosterable barring a change in quarterback or the physical laws of the universe.
•Trevor Siemian was terrible. Not only did he throw a terrible pick across his body late in the game with the cover on the line, but he routinely threw low, causing incompletions and slowing down receivers who made the catch. He also squandered a few chances to pick up first downs with his legs and on one scramble went out of bounds three yards before he would have run into a defender. His receivers didn't help either, with at least three drops, two from Bennie Fowler. Unfortunately for the Broncos the backup is Brock Osweiler, though former first rounder Paxton Lynch is finally getting healthy.
• Here's a Twitter poll I ran before Monday night's game:
Who would you prefer as your QB?
— Christopher Liss (@Chris_Liss) October 30, 2017
•C.J. Anderson ran well, but Devontae Booker scored the touchdown, and Jamaal Charles got significant work as well (eight carries to Anderson's 15.)
•Demaryius Thomas was the only competent receiver dressed (with Emmanuel Sanders out), but his targets were mostly harmless short passes.
•Alex Smith finally turned it over on a lost fumble, and the Chiefs threw their first interception of the year, though it wasn't Smith but wideout Tyreek Hill on a trick play. Funny the announcers bothered to point out after saying Smith had 15 TD passes and no interceptions that he led the league in TD/INT ratio.
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• The Denver defense completely stifled Kareem Hunt. After seven straight games of 100-plus YFS to start his career, he failed to hit 70.
•Travis Kelce was the game's only offensive star with 10 targets, seven catches, 133 yards and a score. Smith targets him down the field, while the speedy Tyreek Hill mostly runs shorter routes (Smith took one deep shot to Hill who had a step on Chris Harris, but overthrew him.) Hill finished with two catches for 38 yards against a tough Denver secondary.
•Harrison Butker made all five of his field-goal attempts, including a 51-yarder, and none were in any doubt.
