Article 46 makes clear that NFL commissioner Roger Goodell issues punishments for conduct detrimental to the NFL. Further, Article 46 stipulates that should a player appeal a suspension for conduct detrimental, Goodell or a designate of his choosing serves as the presiding officer (arbitrator). Importantly, Article 46 does not obligate the punisher (Goodell) or arbitrator (Goodell in Brady; Henderson in Elliott) to hear directly from an accuser or from any particular witness. Likewise, Article 46 does not obligate them to accord more weight to one witness than to another. These were meaningful points in Brady as they are in Elliott.
In Brady, the NFLPA sought to cross-examine co-lead “independent” investigator (and NFL general counsel) Jeffrey Pash. Goodell denied that request. Pash would seemingly have been a critical witness in explaining and defending factual and scientific conclusions made by the NFL against Brady. Judge Parker, however, reasoned that for Brady to enjoy a right to cross-examine Pash, such a right must be expressed in the CBA. It isn’t.
A similar issue has emerged in Elliott: Goodell neither spoke with Elliott’s accuser, Tiffany Thompson, nor with Kia Roberts, the lone NFL investigator who actually spoke with Thompson—and who doubted Thompson’s allegations. Like Judge Parker before her, Judge Failla did not find such unfairness to be legally actionable. This is because nowhere in the CBA does it say that Goodell had to speak with an accuser or investigator—or anyone else, for that matter.