Yeah, that was what I was trying to get at -- whether an explicit agreement for a biased arbitrator would be enforceable as arbitration. That is, is it the kind of "arbitration" to which deference must be paid, etc.?
It's a good question. "If you're fired you cannot bring a suit to challenge the firing, but you can bring an appeal. Your appeal will be decided by the flip of a coin and there will be no further recourse."
Possibly. I'm not sure. One thing I do know is that, at least outside the labor law arena, restrictions on the right to sue, when untethered to an arbitration clause, are interpreted exactly the opposite from arbitration clauses under the states' laws I am most familiar with. While arbitration clauses are construed expansively, and questions whether a dispute is subject to arbitration are construed generously, provisions restricting the right to sue are construed very narrowly. There is often a way around them.
There obviously may be a labor law overlay here. But, in this case, I don't think Article 46 would be nearly specific enough to constitute a jurisdiction/lawsuit stripping clause, if it doesn't constitute "arbitration."
The parties are definitely entitled to wide deference in how to structure arbitration -- I know there are cases, for example, where parties were not give documents or were restricted in the time to present their case or something else where they argue "that's not arbitration and so the award shouldn't get deference". These cases are almost always losers. But a case where one party said, "the arbitrator is entitled to be biased and partial" strikes me as materially different. As I said above, to the extent it's allowed, it would be so extraordinary that I think a court would say it has to be agreed to explicitly. And nothing in Article 46 suggests to me that Goodell gets to be a non-neutral hearing officer. (But I have to admit a ruling that said, "well, fine if you are saying Goodell doesn't have to be neutral, then this isn't arbitration, it's some other non-deferential dispute resolution, and I'm going to review the facts" would be very cool.)