IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40936

NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, agent of on 

its own behalf and on behalf of Ezekiel Elliott, 

 Plaintiff – Appellee,

v.

NATIONAL FOOTBALL LEAGUE; NATIONAL FOOTBALL LEAGUE 

MANAGEMENT COUNCIL, 

 Defendants – Appellants.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:17-CV-615

Before PRADO, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

On August 31, 2017, the National Football League Players Association 

(NFLPA) filed a complaint in the District Court for the Eastern District of 

Texas on behalf of Ezekiel Elliott, a running back for the Dallas Cowboys, 

seeking a preliminary injunction preventing enforcement of a forthcoming sixgame suspension by the National Football League (NFL) and the National 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 12, 2017

Lyle W. Cayce

Clerk

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Football League Management Council. Elliott and the NFL had been engaged 

in the arbitration process following an investigation resulting from domestic 

violence allegations against Elliott. After reviewing the investigation report 

and underlying evidence, Rodger Goodell, the Commissioner of the NFL, 

determined the domestic violence allegations were substantiated and that 

Elliott should be suspended for six games. Under the collective bargaining 

agreement between the NFLPA and the NFL, a player has the right to contest 

before an arbitrator a player discipline determination by the league. Elliott

invoked that right and Harold Henderson, a former NFL executive, presided 

over the August 29–31, 2017 arbitration hearing. When the NFLPA filed this 

lawsuit and moved for a preliminary injunction on August 31, 2017, Henderson

had indicated a decision was forthcoming, but had not yet issued the decision. 

On September 5, 2017, the district court held a preliminary injunction 

hearing. That same day, the arbitrator issued his decision upholding the

NFL’s six-game suspension of Elliott. On September 8, 2017, the district court 

enjoined the NFL from enforcing Elliott’s six-game suspension. The NFL 

moved this court for a stay of the district court’s injunction on September 15, 

2017. We VACATE the district court’s preliminary injunction and REMAND 

to the district court with instructions to dismiss the case. 

The NFL contends the district court lacked subject matter jurisdiction 

under the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, to issue 

the preliminary injunction.1 While preliminary injunctions are generally 

reviewed under an abuse of discretion standard, de novo review is appropriate 

where “a district court’s ruling rests solely on a premise as to the applicable 

 

1 The parties agree that the Federal Arbitration Act does not confer subject matter 

jurisdiction on the district court. Nat’l Football League Players Ass’n v. Nat’l Football League, 

4:17-cv-00615, 2017 WL 3940545, at *3 (E.D. Tex. Sept. 8, 2017). Therefore, the only basis 

for jurisdiction in the district court would be pursuant to the LMRA. 

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rule of law” and the applicable facts are established or of no controlling 

relevance. United Offshore Co. v. S. Deepwater Pipeline Co., 899 F.2d 405, 407 

(5th Cir. 1990). On appeal, a court may also examine the basis for jurisdiction 

sua sponte. Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999). 

When courts lack subject matter jurisdiction over a case, they lack the power 

to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City of Madison, 

143 F.3d 1006, 1010 (5th Cir. 1998). Thus, we must examine jurisdiction 

whenever subject matter jurisdiction appears “fairly in doubt.” See Ashcroft v. 

Iqbal, 556 U.S. 662, 671 (2009). Questions of subject matter jurisdiction cannot 

be forfeited or waived and are reviewed de novo. Hous. Refining, L.P. v. United 

Steel, Paper & Forestry, Rubber, Mfg., 765 F.3d 396, 400 (5th Cir. 2014).2

“[T]he jurisdiction of the court depends upon the state of things at the time of 

the action brought.” Grupo Dataflux v. Atlas Glob. Grp. L.P., 541 U.S. 567, 570 

(2004).

Under the LMRA, a lawsuit for violations between an employer and a 

labor organization must satisfy the following three elements: “(1) a claim of 

violation of (2) a contract (3) between an employer and a labor organization.”

Carpenters Local Union No. 1846 of United Bhd. of Carpenters & Joiners of 

Am., AFL-CIO v. Pratt-Farnsworth, 690 F.2d 489, 500 (5th Cir. 1982); 29 

U.S.C. § 185(a). The NFLPA argues that because Elliott has stated a claim 

that satisfies these three elements, the district court was vested with 

jurisdiction over this case. In response, the NFL argues that jurisdiction only 

vests under the LMRA if Elliott exhausts his contractual remedies and that 

 

2 The NFLPA contends the district court’s decision should be reviewed under an abuse 

of discretion standard. However, the court first determines the question of subject matter 

jurisdiction, which is reviewed de novo. See Hous. Refining, 765 F.3d at 400. Because the 

court finds the question of subject matter jurisdiction dispositive, it need not address the 

proper standard of review for the district court’s preliminary injunction. 

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the lack of a final arbitral decision at the time of filing the complaint is a fatal 

jurisdictional defect.3

It has long been established that “federal labor policy requires that 

individual employees wishing to assert contract grievances must attempt use 

of the contract grievance procedure agreed upon by employer and union as the 

mode of redress.” Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965). 

“If a grievance procedure cannot be made exclusive, it loses much of its 

desirability as a method of settlement.” Id. at 653. The “grievance and 

arbitration procedures are part and parcel of the ongoing process of collective 

bargaining.” United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 

U.S. 29, 38 (1987). 

Outside of limited circumstances, the failure to “fully exhaust[]” 

contracted for “grievance procedures” places an employee’s claim for breach of 

a collective bargaining agreement beyond “judicial review.” Vaca v. Sipes, 386 

U.S. 171, 184–85 (1967) (discussing situations where an “employee may obtain 

judicial review of his breach-of-contract claim despite his failure to secure relief 

through the contractual remedial procedures”). While courts have jurisdiction 

to enforce collective bargaining contracts, “where the contract provides 

grievance and arbitration procedures, those procedures must first be 

exhausted and courts must order resort to the private settlement mechanisms 

without dealing with the merits of the dispute.” Misco, 484 U.S. at 37. Our 

circuit holds that federal courts lack subject matter jurisdiction “to decide cases 

 

3 The dissenting opinion’s citation to Houston Refining, L.P. v. United Steel, Paper & 

Forestry, Rubber, Mfg., 765 F,3 396 (5th Cir. 2014) is a red herring. The issue in Houston 

Refining was whether the mere allegation that a collective bargaining agreement existed was 

sufficient to support jurisdiction under the LMRA. Id. at 402. There is no dispute here that 

a collective bargaining agreement existed. At issue is whether there was a repudiation of 

that collective bargaining agreement to trigger an exception to the exhaustion requirements 

for a court to exercise subject matter jurisdiction. 

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alleging violations of a collective bargaining agreement . . . by an employee 

against his employer unless the employee has exhausted contractual 

procedures for redress.” Meredith v. La. Fed’n of Teachers, 209 F.3d 398, 402 

(5th Cir. 2000). 

The NFLPA argues, following the Supreme Court’s decision in Arbaugh 

v. Y&H Corp., 546 U.S. 500, 510–11 (2006), that Meredith is no longer good law

and exhaustion should not be considered as an issue of subject matter 

jurisdiction. Arbaugh addressed when the term “jurisdiction” is properly 

utilized. 546 U.S. at 510. The Court stated at times the term had been applied 

to procedural requirements that “are not properly typed ‘jurisdictional.’” Id. 

Particularly in the “subject-matter jurisdiction/ingredient-of-claim-for-relief 

dichotomy,” the Court stated that it, among other courts, “ha[d] been less than 

meticulous” in the use of the label. Id. At issue in Arbaugh was whether the 

threshold number of employees for the application of Title VII to an employee’s 

claim was an element of a claim for relief or a jurisdictional issue. Id. at 516. 

The Court held that because Congress had not ranked the statutory limitation 

on coverage in Title VII as jurisdictional, “courts should treat the restriction 

as nonjurisdictional.” Id. The Court further clarified in Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 435 (2011), “that a rule should not be 

referred to as jurisdictional unless it governs a court’s adjudicatory capacity, 

that is, its subject-matter or personal jurisdiction.” Claims-processing rules, 

which are rules “requiring that a party take certain procedural steps at certain 

specified times,” are not jurisdictional—even if mandatory—unless Congress 

clearly indicated the rule was “jurisdictional.” Id. at 435–46. However, the 

Court held there were no “magic words” Congress needed to invoke and if there 

was “a long line of this Court’s decisions left undisturbed by Congress” treating 

a requirement as jurisdictional, the Court would “presume that Congress 

intended to follow that course.” Id. at 436. 

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As discussed above, the Supreme Court has long treated the exhaustion 

of grievance procedures provided for in collective bargaining agreements as 

jurisdictional. See Vaca, 386 U.S. at 184–85 (discussing when judicial review 

is available if grievance procedures have not been exhausted); Misco, 484 U.S.

at 37 (holding jurisdiction to enforce a collective bargaining agreement only 

vests once grievance and arbitration procedures are exhausted). Moreover, 

exhaustion is not a claims-processing rule that goes to the timing of filing a 

lawsuit. Instead, it is a rule reflecting the forum in which an employee’s 

remedy lies, which is the grievance procedures to settle disputes under the 

LMRA. See Maddox, 379 U.S. at 653 (“Congress has expressly approved 

contract grievance procedures as a preferred method for settling disputes . . . 

.”); 29 U.S.C. § 173(a). Further, following Arbaugh, this court has not 

overruled its decision in Meredith.4 Given that Congress has left undisturbed 

the Supreme Court precedent holding the exhaustion of remedies is a 

jurisdictional prerequisite to bring an action alleging a breach of a collective 

bargaining agreement, the court declines to hold that Meredith is no longer 

good law in light of Arbaugh. 

The NFLPA’s lawsuit on Elliott’s behalf was premature.5 The 

procedures provided for in the collective bargaining agreement between the 

 

4 “It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may 

not overturn another panel’s decision, absent an intervening change in the law . . . .” Jacobs 

v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008). 

5 Importantly, even if exhaustion were merely a mandatory claim-processing rule after 

Arbaugh, Elliott’s failure to exhaust his remedies would still preclude our review here. See 

Gonzalez v. Thaler, 565 U.S. 134, 146 (2012) (stating that “calling a rule nonjurisdictional 

does not mean that it is not mandatory or that a timely objection can be ignored”). Here, the 

NFL timely raised that Elliott had failed to exhaust his remedies before filing suit. An 

employee must first resort to the procedures provided for in a collective bargaining agreement 

before filing a lawsuit. Boone v. Armstrong Cork Co., 384 F.2d 285, 288 (5th Cir. 1967). 

Decisions from the Sixth and Seventh Circuits support holding that the exhaustion of 

remedies provided for in a collective bargaining agreement is mandatory and any timely 

raised defect at the litigation’s outset cannot be cured by the subsequent issuance of an 

arbitral award. See Kaiser v. U.S. Postal Service, 908 F.2d 47, 49–50 (6th Cir. 1990) (holding 

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NFL and NFLPA were not exhausted. The parties contracted to have an 

arbitrator make a final decision. That decision had not yet been issued. 

Although the NFLPA argues there were final procedural rulings, those rulings 

were not necessarily indicative of the arbitrator’s final decision. At the time 

the NFLPA filed the complaint, it was possible the arbitrator could have issued 

a final decision that was favorable to Elliott. Elliott cannot show it was futile 

to wait for a final decision simply because he believed the arbitrator would 

issue an unfavorable ruling. As there was no final decision, Elliott had not yet 

exhausted the contracted-for remedies. 

We next turn to whether Elliott’s failure to exhaust his remedies was 

excused. There are three exceptions to the exhaustion requirement: “(1) the 

union wrongfully refuses to process the employee’s grievance, thus violating 

its duty of fair representation; (2) the employer’s conduct amounts to a 

repudiation of the remedial procedures specified in the contract; or 

(3) exhaustion of contractual remedies would be futile because the aggrieved 

employee would have to submit his claim to a group which is in large part 

chosen by the employer and union against whom his real complaint is made.” 

 

that exhaustion of the arbitration and grievance procedures set out in the collective 

bargaining agreement was required where an employee alleged the union was not processing 

the claim in a timely manner); Macon v. Youngstown Sheet & Tube Co., 698 F.2d 858, 861 & 

n.2 (7th Cir. 1983) (holding there was a failure to exhaust remedies where an employee filed 

a lawsuit while an arbitration pursuant to a collective bargaining agreement was ongoing, 

even though a final arbitral award had subsequently issued). 

Our holding in Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165 (5th Cir. 2014) 

does not compel us to a contrary conclusion. Gorman addressed whether under the Texas 

Commission on Human Rights Act (TCHRA) a right-to-sue letter was a jurisdictional 

requirement or a condition precedent, such that any defect could be cured after the lawsuit 

was commenced. Id. at 169. Gorman held that the right to sue requirement was not 

jurisdictional based on a Texas Supreme Court case interpreting the TCHRA, which 

harmonized Texas’s law with the United States Supreme Court’s holdings that Title VII 

right-to-sue letters are mandatory not jurisdictional. Id. at 169–70. Whether exhaustion 

was mandatory here does not turn on interpreting whether a prerequisite to filing a lawsuit 

is a jurisdictional requirement under state law. 

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Rabalais v. Dresser Indus., Inc., 566 F.2d 518, 519 (5th Cir. 1978) (internal 

citations omitted).6

The NFLPA only argues the repudiation exception to the exhaustion 

requirements applies. An allegation that an employer has repudiated the 

grievance process is not substantiated merely by its “refusal to accept an 

employee’s position with respect to a grievance.”7 Id.; see also Meredith, 209 

 

6 The dissenting opinion argues that the existence of exceptions to the exhaustion 

requirement undermines the NFL’s argument that exhaustion is a jurisdictional 

prerequisite. However, these exceptions are better thought of as exceptional circumstances 

in which arbitral processes are deemed “concluded” absent final arbitral awards. Here, the 

mere fact that the record was closed and the arbitrator had issued final evidentiary rulings

is not an exceptional circumstance where we should deem the arbitral process as concluded 

absent a final award. The existence of adverse evidentiary rulings against a party does not 

indicate that it is a foregone conclusion that the arbitrator will issue an award adverse to 

that party. An adverse evidentiary ruling does not a judgment make. 

7 The dissenting opinion conflates a claim for breach of a collective bargaining 

agreement with an allegation that the employer repudiated the collective bargaining 

agreement. An allegation that an employer did not abide by the terms of a collective 

bargaining agreement during the grievance process is not equivalent to an allegation the 

employer refused to participate in the grievance procedures provided by the collective 

bargaining agreement. An allegation of the latter is required to show the repudiation 

exception applies. 

Citing to an out-of-circuit case, the dissenting opinion argues it has not conflated a 

claim for breach of a collective bargaining agreement with a claim for repudiation of a 

collective bargaining agreement. Ramirez-Lebron v. International Shipping Agency, Inc., 593 

F.3d 124 (1st Cir. 2010), however, is easily distinguishable. Ramirez-Lebron involved two 

groups of employees with conflicting seniority claims, where one group of employees and the 

employer allegedly entered into a “sham, secret agreement” that was submitted to the 

arbitrator. 593 F.3d at 127–28. Both groups of employees were supposed to appear before 

an arbitrator, but that hearing was suspended and the arbitrator subsequently issued an 

award allegedly based on the secret agreement between only one group of employees and the 

employer, without the second group of employees ever participating in the arbitral process. 

Id. at 128–29, 135. The second group of employees alleged the employer breached the 

collective bargaining agreement and repudiated the arbitration process by inducing the 

arbitrator to issue an arbitral award based on a fraudulent scheme. Id. at 128. The RamirezLebron employer simultaneously breached and repudiated the collective bargaining 

agreement because it allegedly fraudulently induced the arbitrator to enter an award 

benefitting one group of employees, which had the effect of excluding from the arbitral process 

another group of employees with access to that same process under the collective bargaining 

agreement. Id. at 134–35. Here, the dissenting opinion admits “there is no claim of fraud.” 

Likewise, here, there is no allegation a party is being excluded from the arbitration process, 

as the group of plaintiff employees were in Ramirez-Lebron. 

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F.3d at 403 (holding the repudiation exception applied where an employer 

claimed the employee “was not covered by the collective bargaining agreement 

and did not consider her grievance”). “An employer can obviously take a stance 

contrary to that of the employee during the grievance process without being 

deemed to have repudiated that process.” Rabalais, 566 F.2d at 520. Here, it 

is undisputed the NFL and Elliott were engaged in arbitration as provided for 

under the collective bargaining agreement. Unlike Meredith, where the 

employer refused to consider the grievance under the collective bargaining 

agreement, the NFL cannot be said to have repudiated the agreement here. 

The NFLPA takes issue with the outcome and fairness of the arbitration 

proceedings. However, for the repudiation exception to the exhaustion 

requirements to apply, the NFL would have had to completely refuse to engage 

in the process. See Meredith, 209 F.3d at 403. Accordingly, the court finds the 

repudiation exception does not apply and Elliott was required to exhaust his 

contractual remedies before filing his lawsuit. 

When the NFLPA filed the complaint on August 31, 2017, the arbitrator 

had not yet issued his decision. Although the district court issued the 

injunction on September 8, 2017, and the arbitrator had previously issued his 

decision on September 5, 2017, jurisdiction depends on the facts as they exist 

when the complaint was filed. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 

U.S. 826, 830 (1982). The district court, therefore, lacked subject matter 

jurisdiction when it issued the preliminary injunction.8 

 

8 Much of the dissenting opinion is devoted to examining the merits of the NFLPA’s 

lawsuit. While these arguments and concerns about the arbitration process may have merit, 

they must be considered by a court with proper jurisdiction. See Home Builders Ass’n of 

Miss., Inc., 143 F.3d at 1010 (“When courts lack subject matter jurisdiction over a case, they 

lack the power to adjudicate the case.”); Morrison v. Nat. Austl. Bank, Ltd., 561 U.S. 247, 254 

(2010) (noting that subject matter jurisdiction is “an issue quite separate from the question 

of whether the allegations the plaintiff makes entitle him to relief”).

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For the foregoing reasons, we VACATE the district court’s preliminary 

injunction and REMAND to the district court with instructions to dismiss the 

case. 

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JAMES E. GRAVES, JR., Circuit Judge, dissenting:

This is a case 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 NFL’s lead investigator, 

who was then excluded from meetings with NFL Commissioner Roger Goodell. 

Because I conclude that the district court had subject matter jurisdiction, I 

respectfully dissent.

In 2016, allegations of domestic violence were made against Elliott in 

Columbus, Ohio. Columbus authorities investigated the allegations and 

declined to arrest or prosecute Elliott based on conflicting information and 

insufficient evidence. 

Pursuant to its Personal Conduct Policy, the National Football League 

(NFL) launched a year-long investigation.1 Kia Roberts,2 NFL Director of 

Investigations, and Lisa Friel, NFL Senior Vice President and Special Counsel 

for Investigations, conducted the investigation and prepared a report. Roberts 

is the only investigator who participated in all 22 of the witness interviews, 

including those with Elliott’s accuser, who was interviewed six different 

times.3 Friel was not present for any of the witness interviews. Roberts, not 

Friel, was then excluded from the meetings with Goodell and his outside 

advisors to discuss the allegations against Elliott and whether Elliott should 

receive any punishment. Goodell is the person solely responsible, under the 

 

1 Under the NFL Personal Conduct Policy: “In cases where a player is not charged 

with a crime, or is charged but not convicted, he may still be found to have violated the Policy 

if the credible evidence establishes that he engaged in conduct prohibited by this Personal 

Conduct Policy.” (Emphasis added). 

2 Roberts is a former assistant district attorney who prosecuted domestic violence and 

other cases.

3 Various other NFL or NFLPA representatives were present for some of the 

interviews.

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NFL-National Football League Players Association (NFLPA) Collective 

Bargaining Agreement (CBA), for punishing NFL players. We now know that 

Roberts’ recommendation was that there should be no punishment.

On August 11, 2017, the NFL sent Elliott a letter informing him of 

Goodell’s decision to suspend him for six games. The NFLPA appealed on 

behalf of Elliott pursuant to the CBA. Goodell assigned the appeal to Harold 

Henderson.

During the arbitration proceedings, the NFLPA sought to compel the 

testimony of Roberts and the accuser. They also asked that the NFL provide 

the investigative notes. Again, Roberts was the only investigator to interview 

all witnesses, including the accuser, who is the sole witness to any alleged 

domestic violence. Two of the accuser’s six interviews were transcribed and 

are in the record. Roberts took notes on the other four interviews, but the NFL 

did not turn those notes over to the NFLPA. Additionally, the NFL objected to 

the request for Roberts to testify on the basis that her testimony would be 

“cumulative and unnecessary” in light of Friel’s attendance at the hearing. 

Importantly, Roberts had formed the opinion that the accuser was not credible.

Henderson granted the motion to compel as to Roberts, but denied the 

requested relief as to the accuser and the investigative notes. During 

arbitration, it was revealed that Goodell had met with Friel and other advisors, 

outside the presence of Roberts, to decide Elliott’s punishment. The NFLPA 

then sought to compel Goodell’s testimony to determine what information he 

had been provided before he decided to impose the suspension. Henderson 

denied the request. The three-day arbitration hearing ended on August 31, 

2017, the record was closed, and Henderson stated that he would announce his 

decision shortly thereafter.

The following day, September 1, 2017, the NFLPA sued the NFL on 

behalf of Elliott in the Eastern District of Texas seeking vacatur of the pending 

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decision of the arbitrator based on the factual scenario presented in this case. 

The NFLPA also filed an emergency motion for a temporary restraining order 

and a preliminary injunction. The district court conducted a preliminary 

injunction hearing on September 5, 2017. Also on September 5, Henderson 

issued his decision affirming Goodell’s six-game suspension, and the NFL filed 

a complaint in the Southern District of New York (Case No. 1:17-CV-06761-

KPF) seeking to confirm and enforce the arbitration award.

The Texas district court delayed ruling on the NFLPA’s emergency 

motion and called for additional briefing due by Wednesday, September 6, 

2017, on jurisdiction and the issuance of the arbitrator’s decision. On 

September 8, 2017, the district court entered a Memorandum Opinion and 

Order granting the NFLPA’s motion and enjoined the suspension of Elliott 

pending the court’s final ruling on the petition.

On September 11, 2017, the NFL filed a notice of appeal and an 

emergency motion to stay the injunction in the district court. The NFL 

acknowledged the existence and requirements of Rule 8 of the Federal Rules 

of Appellate Procedure, but included the following statement: “Absent an order 

from this Court granting a stay, Respondents intend to seek a stay from the 

Fifth Circuit tomorrow morning.” Also on September 11, the district court 

entered an order for expedited briefing on the NFL’s emergency motion for 

stay. The NFL’s reply was due September 13 at 5 p.m. and the NFLPA’s 

response was due September 15 at 5 p.m. Both parties filed their briefs on 

September 13. 

Rather than wait for the district court to rule on its motion, the NFL 

then filed on September 15, 2017, an Emergency Motion for Stay Pending 

Appeal with this court seeking a ruling by September 19 and no later than 

September 26. The district court denied the NFL’s stay on September 18. This 

court allowed both deadlines to pass, as there is no emergency. However, panel 

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members called for supplemental briefing on the issue of jurisdiction and set 

the matter for oral argument.

The majority now concludes that the district court lacked subject matter 

jurisdiction when it issued the preliminary injunction, vacates, and remands 

with instructions to dismiss. I disagree and conclude that the district court 

indeed had subject matter jurisdiction.4 I agree with the majority that this 

court reviews questions of subject matter jurisdiction de novo. But I disagree 

with the majority’s repeated suggestion that we are here on the appeal of the 

district court’s preliminary injunction as opposed to the NFL’s motion for stay.

The majority adopts the NFL’s position that the district court lacked 

subject matter jurisdiction because the NFLPA filed the action prematurely 

without having exhausted contractual procedures under the CBA, i.e., 

awaiting the issuance of the arbitrator’s written decision. Specifically, they 

assert that exhaustion is required under the Labor Management Relations Act 

(LMRA) and that exhaustion means the final decision of the arbitrator must 

have issued. However, neither the NFL nor the majority cites a single case 

where a court held that the petitioner failed to exhaust in a situation like this. 

Instead, both cite various cases which are dissimilar and ignore cases which 

do not support a conclusion of lack of subject matter jurisdiction.

The district court granted the preliminary injunction, saying: “Based 

upon the preliminary injunction standard, the Court finds, that Elliott did not 

receive a fundamentally fair hearing, necessitating the Court grant the request 

for preliminary injunction.” The court concluded that it had jurisdiction under 

section 301 of the LMRA. As the court said in its September 8 order granting 

the stay:

 

4 The district court also should have been allowed, in the first instance, to consider the 

motion to dismiss presently pending before it. 

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For a federal court to maintain jurisdiction over the alleged 

breach of a collective bargaining agreement, an LMRA “claim must 

satisfy three requirements: (1) a claim of a violation of (2) a 

contract (3) between an employer and a labor organization.” 

Carpenters Local Union 1846 of United Bhd. of Carpenters and 

Joiners of Am., AFL-CIO v. Pratt-Farnsworth, Inc., 690 F.2d 489, 

500 (5th Cir. 1982). As long as these three requirements are met 

an individual can sue for breach of the collective bargaining 

agreement. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 

163 (1983) (citing Smith v. Evening News Ass’n, 371 U.S. 195 

(1962)). Here, the NFLPA alleges a violation of a contract, the 

CBA. The CBA was entered into by the NFLPA, a labor 

organization, and the NFL, an employer.

Further, as the NFL conceded at oral argument, there is no explicit 

requirement of exhaustion in the LMRA. The LMRA states:

Suits for violation of contracts between an employer and a labor 

organization representing employees in an industry affecting 

commerce as defined in this chapter, or between any such labor 

organizations, may be brought in any district court of the United 

States having jurisdiction of the parties, without respect to the 

amount in controversy or without regard to the citizenship of the 

parties.

29 U.S.C. § 185(a). 

The NFLPA asserts that the district court correctly exercised jurisdiction 

under the LMRA and cites Houston Refining, L.P. v. United Steel, Paper & 

Forestry, Rubber, Mfg., 765 F.3d 396 (5th Cir. 2014), for the proposition that 

“an ‘alleged violation’ [of a CBA] satisfies section 301(a)'s jurisdictional 

requirement.” Id. at 403 (citing Textron Lycoming Reciprocating Engine Div., 

AVCO Corp. v. United Auto., Aerospace & Agric. Implement Workers of Am., 

Int'l Union, 523 U.S. 653, 658 (1998). Further, “the alleged violation of a labor 

contract is both necessary and sufficient to invoke federal subject-matter 

jurisdiction under section 301(a) of the Labor Management Relations Act, 29 

U.S.C. § 185(a).” Id. at 405-06. This court concluded that, “[b]ecause a party 

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need only allege the violation of a labor contract to invoke federal subjectmatter jurisdiction under section 301, this requirement was easily satisfied 

here.” Id. at 406. Such is the case here and our binding authority controls. 

Thus, I agree with the NFLPA that exhaustion is a prudential consideration 

and not a strict jurisdictional prerequisite.

Additionally, the Supreme Court in Textron made clear that: “’Suits for 

violation of contracts’ under § 301(a) are not suits that claim a contract is 

invalid, but suits that claim a contract has been violated.” Textron, 523 U.S. 

at 657. The NFLPA asserts that the NFL violated the CBA. That alleged 

violation is all that is required to allow the district court to exercise 

jurisdiction.

Moreover, as the majority concedes, the controlling authority explicitly 

states that an employee is only required to “attempt use of the contract 

grievance procedure.” Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965) 

(emphasis added). With regard to the majority’s quote from Maddox regarding 

the exclusivity of a grievance procedure, in context, that quote is actually 

referencing “[a] contrary rule which would permit an individual employee to 

completely sidestep available grievance procedures in favor of a lawsuit . . . .” 

Id. at 653. There was no complete sidestep of available grievance procedures 

here. Instead, the NFLPA clearly attempted to use the contract grievance 

procedure set out in the CBA, as acknowledged by the majority. The NFLPA 

filed a lawsuit only after discovery of the NFL’s alleged violations of the CBA 

and the adverse rulings which prevented exploration of the extent of the 

alleged violations.

Regardless, in Rabalais v. Dresser Industries, Inc., 566 F.2d 518 (5th Cir. 

1978), this court acknowledged the following exceptions to exhaustion:

(1) the union wrongfully refuses to process the employee's 

grievance, thus violating its duty of fair representation, Vaca v. 

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Sipes, supra ; (2) the employer's conduct amounts to a repudiation 

of the remedial procedures specified in the contract, id.; Boone v. 

Armstrong Cork Co., 384 F.2d 285 (5th Cir. 1967); or (3) exhaustion 

of contractual remedies would be futile because the aggrieved 

employee would have to submit his claim to a group “which is in 

large part chosen by the (employer and union) against whom (his) 

real complaint is made.” Glover v. St. Louis-S.F. Ry. Co., 393 U.S. 

324, 330, 89 S.Ct. 548, 551, 21 L.Ed.2d 519 (1969). See generally 

Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870 (3d Cir. 

1972).

Id. at 519. See also Maddox, 379 U.S. at 650; and Vaca v. Sipes, 386 U.S. 171, 

184-185 (1967) (discussed more fully herein). This court has also said that an 

individual may attack an arbitration award where the grievance procedure 

was “substantially inadequate.” Harris v. Chem. Leaman Tank Lines, Inc., 437 

F.2d 167, 171 (5th Cir. 1971).

The Rabalais court noted that “[a]n employer can obviously take a stance 

contrary to that of the employee during the grievance process without being 

deemed to have repudiated that process.” Rabalais, 566 F.2d at 520. However,

it is undisputed that failure to comply with the terms or procedures of the CBA 

is a breach. 

These exceptions establish that, “full exhaustion is not inevitably 

required by a court before it will exercise jurisdiction under §301.” RamirezLebron v. Int’l Shipping Agency, Inc., 593 F.3d 124, 132 (1st Cir. 2010) (quoting 

Hayes v. New England Millwork Distribs., Inc., 602 F.2d 15, 18 (1st Cir. 1979)). 

Further, any exhaustion requirement is not “unlimited,” particularly where 

“circumstances have impugned the integrity of the arbitration process.” Id. at 

132. In Ramirez-Lebron, the First Circuit said that “[t]his appeal in the end is 

about the fundamental fairness of the arbitration process.” Id. at 134 

(emphasis original). The court further concluded, consistent with Vaca, 386 

U.S. at 185, that an employer is “estopped” from using a CBA or an arbitration 

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award to shield itself from answering factual allegations that may have tainted 

the award. Id. at 134-135. More significantly, the Ramirez-Lebron court 

concluded, under Vaca, that the employer’s breach of the terms of the CBA 

constituted repudiation of the grievance procedures. Ramirez-Lebron, 593 

F.3d at 134. See also Vaca, 386 U.S. at 185. This authority directly contradicts 

the majority’s statement, without authority, that this opinion conflates a claim 

for breach of a CBA with a claim for repudiation of a CBA.5

The district court here concluded that, under the second Rabalais

exception above, the NFL had repudiated the required procedures set forth in 

the CBA. The court further found, based upon the preliminary injunction 

standard, that Elliott did not receive a fundamentally fair hearing.

Under Article 46 of the CBA, a player is entitled to counsel and has the

right, along with the NFLPA and NFL, “to attend all hearings provided for in 

this Article and to present, by testimony or otherwise, any evidence relevant 

to the hearing.” Art. 46 § 2(b). Additionally, “the parties shall exchange copies 

of any exhibits upon which they intend to rely no later than three (3) calendar 

days prior to the hearing.” Art. 46 at § 2(g)(i). 

The NFLPA and Elliott were arguably denied the right to “present, by 

testimony or otherwise, any evidence relevant to the hearing.” At the hearing, 

the NFL attempted to keep Roberts, the only investigator to interview all 

witnesses, from testifying and denied access to the investigative notes and the 

opportunity to question the accuser. The NFL’s arbitrator then denied access 

to the investigative notes. Four of the interviews with the accuser were not 

transcribed, but were in those notes. The arbitrator also denied the 

 

5 The majority attempts to distinguish Ramirez-Lebron. However, no party was 

excluded from arbitration in that case. Although there are no explicit allegations of fraud 

here, there are explicit allegations of a breach of contract which impugned the integrity of 

the process and resulted in repudiation.

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opportunity to question the accuser, who was the only witness to any alleged 

domestic violence. After the NFLPA was successful in compelling Roberts’ 

testimony, the NFLPA discovered that Roberts was excluded from meetings 

with Goodell and outside advisors. The arbitrator then denied the opportunity 

to question Goodell. The revelation of Roberts’ exclusion suggests that Goodell 

was not fully informed before making his decision about the appropriate 

punishment. That is important for two reasons: 1) The arbitrator properly 

gave deference to the commissioner; and 2) all of that is “evidence relevant to 

the hearing.” Also, as the NFL clearly relied on the accuser’s interviews and 

there were only transcripts of two of those six interviews, the investigative

notes likely should have been exchanged. 

All of these actions “impugned the integrity of the arbitration process.” 

See Ramirez-Lebron, 593 F.3d at 132. Thus, the NFL’s refusal to follow those 

agreed upon procedures in the CBA resulted in a repudiation of the grievance 

procedure sufficient to vest jurisdiction in the district court. Id. at 134. See 

also Vaca, 386 U.S. at 185; and Rabalais, 566 F.2d at 519. 

To briefly address the authority cited by the majority, I begin with Vaca, 

which the majority cites for the proposition that, “[o]utside of limited 

circumstances, the failure to ‘fully exhaust[]’ contracted for ‘grievance 

procedures’ places an employee’s claim for breach of a collective bargaining 

agreement beyond ‘judicial review.’” However, that is not what Vaca says. 

Vaca states: “However, if the wrongfully discharged employee himself resorts 

to the courts before the grievance procedures have been fully exhausted, the 

employer may well defend on the ground that the exclusive remedies provided 

by such a contract have not been exhausted.” Vaca, 386 U.S. at 184. Further, 

the court said:

However, because these contractual remedies have been devised 

and are often controlled by the union and the employer, they may 

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well prove unsatisfactory or unworkable for the individual 

grievant. The problem then is to determine under what 

circumstances the individual employee may obtain judicial review 

of his breach-of-contract claim despite his failure to secure relief 

through the contractual remedial procedures.

Id. at 184-185. The Court went on to say: “To leave the employee remediless 

in such circumstances would . . . be a great injustice. We cannot believe that 

Congress, in conferring upon employers and unions the power to establish 

exclusive grievance procedures, intended to confer . . . such unlimited 

discretion to deprive injured employees of all remedies for breach of contract.” 

Id. 

The Vaca Court in no way said that only the arbitrator’s written award 

constitutes exhaustion and that failure to fully exhaust places a breach of 

contract claim outside judicial review. Moreover, Vaca cites Maddox for the 

proposition that “it is settled that the employee must at least attempt to 

exhaust exclusive grievance and arbitration procedures established by the 

bargaining agreement.” Vaca, 386 U.S. at 184-185 (emphasis added). The 

attempt to exhaust was made here and the contractual remedy proved 

unsatisfactory – those are the only requirements under Vaca. 

The majority relies on Meredith v. Louisiana Federation of Teachers, 209 

F.3d 398 (5th Cir. 2000), for the proposition that a federal court lacks 

jurisdiction absent exhaustion. However, the employee in Meredith failed to 

take the final step in the grievance procedure, i.e., “seeking to compel 

arbitration.” Id. at 402. Importantly, this court did not say that Meredith was 

required to await the arbitrator’s written decision, but rather that she had to 

at least seek to compel arbitration – as is consistent with Supreme Court 

precedent requiring an attempt. Here, the NFLPA took the final required step 

in the grievance procedure and attempted arbitration. Further, in Meredith, 

this court concluded that the district court properly found the employer was 

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estopped from raising the defense of non-exhaustion of remedies because it 

repudiated the contract. Id. at 402-03. Additionally, because Meredith is 

easily distinguished, there is no violation of the rule of orderliness.

The majority also cites United Paperworkers International Union, AFLCIO v. Misco, Inc., 484 U.S. 29 (1987). Misco involved the attempt to set aside 

a final arbitration award and did not involve a breach of contract or an alleged 

issue of exhaustion. The general statement quoted by the majority neither 

contradicts nor complements the other authority cited herein. However, 

notably, the Misco Court said: “Of course, decisions procured by the parties 

through fraud or through the arbitrator's dishonesty need not be enforced.” Id.

at 38. Here, there is no claim of fraud, but, without the ability to question 

Goodell under these circumstances, it is likely impossible to determine 

whether information was intentionally withheld from him or whether he was 

provided false information. 

Further, the cases the majority cites from the Sixth and Seventh Circuits 

both involved ongoing proceedings, unlike here, where the proceedings had 

concluded and the record was closed. 

Additionally, the majority states that the “parties contracted to have an 

arbitrator make a final decision.” The parties also contracted to be allowed “to 

present, by testimony or otherwise, any evidence relevant to the hearing” and 

“to exchange copies of any exhibits upon which they intend to rely no later than 

three (3) calendar days prior to the hearing.” Art. 46 § 2(b), (g)(i). The NFLPA 

alleges a breach of that contract. The record was closed and there was no 

chance of the arbitrator revisiting any erroneous rulings prior to the issuance 

of a written decision. The LMRA does not explicitly require exhaustion, the 

binding authority only requires an attempt, and it is undisputed that there are 

exceptions. Thus, the NFLPA’s complaint in district court was not premature.

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For the reasons stated herein, I conclude that the district court properly 

exercised subject matter jurisdiction. Also, as the NFL is unable to show a 

likelihood of success on the merits or any irreparable injury for purposes of a 

stay, I would deny the motion for stay. Moreover, “the maintenance of the 

status quo is an important consideration in granting a stay.” Dayton Bd. of 

Educ. v. Brinkman, 439 U.S. 1358, 1359 (1978). The status quo is Elliott 

continuing to play pending resolution of the claim filed below.

 

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