Columnist

Sally Jenkins

That thunking noise is the sound of attorneys for NFL players banging their heads against their heavy desks. Dallas Cowboys running back Ezekiel Elliott's six-game suspension is back on. Thunk.

It doesn't matter that police didn't find enough evidence to prosecute him for domestic violence. Thunk.

It doesn't matter that he was denied basic fairness and access to essential facts in the NFL disciplinary process. Thunk, thunk.

All that matters is that under Article 46, the execrably written disciplinary clause in the NFL labor contract, Commissioner Roger Goodell can tie any player he wants to a wheel and spin him on a personal whim. Thunk, thunk, thunk.

In the same way that you can't really grasp the speed of an NFL game until you attend one live, you can't really understand what players are up against in Goodell's disciplinary system until you've seen them try to fight it live in a federal courthouse.

Elliott was in trouble from the moment federal Judge Katherine Polk Failla opened the door to her 2nd Circuit courtroom, an illustrious setting with heavy brass chandeliers and starred blue carpet and buttercream trim, in which it was going to be hard to upset the status quo. Her brisk manner suggested, "This better be really important." Her tone had bite. "I'm one of those judges given to tire-kicking," she announced. She proceeded to kick all of the air out of the pinstriped suits representing Elliott.

"There is a certain rhetoric in your briefs that is not helpful to me," she said. The words were clearly aimed at NFL Players Association attorney Jeffrey Kessler, whose rising and increasingly frustrated voice she continually shushed over the next two hours.

[Ezekiel Elliott loses latest court battle, clearing way for NFL to enforce suspension]

Did Failla smile more sweetly and defer to the NFL's superbly concise litigator Paul Clement right from the outset? She certainly seemed to. Did she appear to suppress more than one eye roll at Kessler's passionate, verbose and desperately searching arguments? Indeed, she did. "I can read," she said at one point.

One thing was obvious: Lawyers for NFL players have been arguing against Goodell's capriciousness for so long that they have become frustrated and hyper-emotional. It doesn't matter that they are right.

Clearly, Goodell abused his power: He discarded the conclusions of his own investigator Kia Roberts, who recommended no suspension because she found Elliott's accuser not believable. Key evidence was buried or hidden from Elliott, and Goodell's rubber-stamp arbitrator Harold Henderson denied him a chance to examine key notes, or to cross-examine key witnesses. Goodell and the league simply made an example out of Elliott because they needed a public splash on domestic violence, and they trusted in the grim fortress of arbitration law to protect them.

All of this Kessler argued. But it was striking how unfavorably his words fell on the ears of Failla, who is unattuned to Goodell's imperatorial abuses. She just didn't buy it or understand the tone of hostility to the league office.

"Throughout your papers, you suggest there is a conspiracy," she said. She did not like the intimations of something "nefarious." These allegations of dark motives seemed to her bombastic. "What I don't understand is, who are the conspirators and where is the conspiracy?"

In her ruling she delivered a clean sweep victory to the NFL and the neat, precise Clement in his clear rimless spectacles.

On other occasions, federal court judges have bought Kessler's arguments. In Deflategate, 2nd Circuit judges Richard Berman and Robert Katzmann both took serious issue with Goodell's unfair conduct. In Elliott's case, so did 2nd Circuit judge Paul A. Crotty and 5th Circuit judge Amos Mazzant. But at best, this leaves NFL players with divided rulings and dependent on the luck of the draw.

The problem is that any arbitration challenge is an inherently uphill battle. Arbitration is meant to be difficult to overturn, precisely to keep labor disputes out of court. What became clear in Failla's courtroom is that NFL players have a doubly steep uphill battle because they signed a collective bargaining agreement that is lousy with vagueness and includes no specific written protections — none — against a commissioner run amok, and some judges are too weak or reluctant to check him, and defend the basic integrity of the arbitration system.

For instance: Article 46 doesn't require Goodell to hear from witnesses in doling out penalties. Think about that: Unlike other more responsible commissioners, Goodell interprets that silence as meaning he does not need any direct evidence in order to suspend; he can simply say, "Off with your head." Lawyers such as Kessler are therefore left to argue that Goodell should adhere to some invisible code of fairness that appears nowhere in the labor contract.

[Cowboys don’t need Ezekiel Elliott to keep playoff hopes alive]

Kessler tried to paint a picture of "a perfect storm of unfairness" to Elliott. To which Failla responded by ruling, "Courts should not superimpose an extracontractual definition of 'fairness' in arbitrations beyond the actual standards and procedures for which the parties bargained."

In Failla's eyes, if the CBA left Elliott unprotected from a vicious or ill-motivated Goodell, that was the players' problem, not hers.

"While reasonable minds could differ on the evidentiary decisions made by the arbitrator, the proceedings in their totality accorded with the" collective bargaining agreement, she wrote.

All of which left Elliott suspended again, unless he can obtain emergency relief in a second circuit appeal — and find a judge who is not quite so reluctant to step in to ensure the NFL doesn't violate the rights of its players. As Failla saw it, any intervention by her on behalf of Elliott would "micromanage" Goodell on his disciplinary decisions. She just didn't see it as her business. But just because arbitration law is meant to be a steep hill to climb doesn't mean it's supposed to be impossible. Arbitration law wasn't written to destroy fairness — and if a judge won't preserve fairness, then who will?

In the last round of legal wrangling, Failla's 2nd Circuit colleague Crotty rightly halted Elliott's suspension because he understood Elliott had been deprived of "opportunities to explore pertinent and material evidence." No matter how tired the NFL's lawyers are of constantly re-litigating fundamental fairness under Goodell, they have to go back and fight it again and again — and try to find a cooler tone with which to do so, and a judge who will protect the integrity of the system.

For more by Sally Jenkins, visit washingtonpost.com/jenkins.