There is no Rev said:
So what the hell is the "law of the shop" if it is so weakly binding? Or, in effect, not truly binding at all so much as information that an arbitrator may do with as he or she pleases.
I'm not a labor lawyer, but I'll take a shot at something of an answer here, because it does seem to me to be a very sharp divide between the NFL and the NFLPA.
The Supreme Court tells us that in reviewing an arbitration award to decide whether or not the award draws its essence from the CBA, courts must look not just to the four corners of the CBA, but also to "industrial common law," which I guess also has been simplified to "law of the shop." On their face, they are not synonyms. If you consider what the "law of the shop" means, I think you can maybe get the gist. Without looking at any cases, my sense just from the plain language and what I think the Supreme Court was talking about, is to imagine a case where a welder gets fired for not wearing the right mask. But it turns out that's a very loosely enforced requirement in the actual shop. There's language in the CBA that permits termination for "serious" safety violations. Do you defer to the arbitrator's ruling, or do you take into account "law of the shop" to give meaning to the word "serious"?
Ok, so how do we get from there to arbitral precedent? Well the words "industrial common law" are interesting. They suggest inquiry into not only what goes on in the shop, but how what goes on in the shop is interpreted and understood through the grievance process.
So, I think that sets up the tension between the NFL's position and the NFLPA's position in this case. On the one hand, you have the premise that legal interpretations are relevant to determining the law of the shop. On the other, you have some law that says arbitrators are not bound by what prior arbitrators have done. (The Wackenhut case is for shit, but some of the other cases the NFL cites are more serious -- the arbitrator is generally given discretion to decide whether to follow prior precedent, so long as that authority is reasonably inferred from the CBA.) So, which of these provisions governs? When is prior precedent more than just precedent and when does it become "law of the shop"? The NFL's argument seems to be "never." That can't be right. But does Peterson, etc., rise to the level of law of the shop?
Well, Doty certainly interprets law of the shop that way, and I think Kessler is right to argue collateral estoppel. Whatever the merits of the argument precisely, it seems unseemly to say the least that the NFL has repeatedly gotten its ass kicked under law of the shop theories before another district court judge, and now they are basically saying law of the shop doesn't really exist in the manner the NFLPA claims. What's the answer here? Dunno. It's gray, for sure. There is room for Berman to accept the NFL's arguments on either of two grounds -- that this is mere arbitral precedent that does not rise to the level of law of the shop, or that under Second Circuit law, Goodell had authority to decide the weight to be given to prior cases in deciding whether to accept them as law of the shop or to distinguish them. Or to accept Brady's argument -- that these are precedents that comprise the law of the shop to which the NFL is bound.
Now, of course, even if Brady gets by that hurdle, he has a remaining hurdle. He has to show that Peterson, etc., is on point here -- that Goodell's enhancement of the basis for punishment above "generally aware" can be equated to punishing under a rule that didn't exist at the time of original punishment. I think the NFL is on much more solid ground here. I could easily see Berman saying, "the whole dispute about what is arbitral precedent and what is law of the shop is really fascinating, but I don't need to reach it, because Peterson doesn't apply here." What Kessler has done pretty well, though, is change the battle ground so that at least as presently positioned, battle appears to be joined on the first issue (where he is stronger) than on the second issue (where he is not).