Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only

mwonow

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If you make a virtue out of being partial...what's the point of the arbitration process? Wouldn't the contention that partiality is to be assumed and condoned make arbitration irrelevant? And if that's the case, why bother putting it in the CBA at all?
 

twothousandone

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Because the NFLPA bargained for it?
That's really a question for them. Maybe they got a greater rev split by accepting that than they would have by demanding something that was truly impartial.

The NFLs argument isn't subtle. The Union knew Goodell would be biased, yet they agreed that he's the final arbiter. Defer to the arbiter, Judge. NFLPA agreed to it.
 

DennyDoyle'sBoil

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the NFLPA bargained that Goodell could sit. They didn't bargain away the evident partiality ground for vacating awards.

It would be a very strange ruling to me if the court were to hold that agreeing that an affiliate or representative of one party can sit implies consent to a non-neutral decisionmaker.
 

Ed Hillel

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Here
twothousandone said:
Because the NFLPA bargained for it?
That's really a question for them. Maybe they got a greater rev split by accepting that than they would have by demanding something that was truly impartial.

The NFLs argument isn't subtle. The Union knew Goodell would be biased, yet they agreed that he's the final arbiter. Defer to the arbiter, Judge. NFLPA agreed to it.
Yes, and the NFL bargained for specific rules, such as the equipment violations, which should limit Goodell. We can go back and forth, it's going to come down to the process Goodell used being fundamentally unfair.
 

Reverend

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Myt1 said:
That's exactly the point I raised before. What happens when, in the CBA, the parties agree to an arbitrator who is basically partial per se?

For example, take the case with the father and son relationship. Now, pretend that the relationship was disclosed, but both parties nevertheless agreed to continue to use that arbitrator. Could the losing party still claim partiality, or would that be waived?
 
In a way, this is broaching the issue of whether or not the NFLPA and NFL bargained for something that they cannot legally bargain for, does it not? That's not exactly what I'm trying to convey, but it's close.
 
I mean, insofar as "evident partiality" is grounds for vacating an award, the underlying notion is that evident partiality on the part of the arbitrator is not legal. So bargaining for an evidently partial arbitrator has at best a problematic relationship with the law.
 
This then raises the issue of the law addressing "evident partiality" as a descriptor of behavior, which is different from the more essential notion of the structural position of being partial--can someone in a structural position to be partial behave without partiality? Sure. But it's almost by definition less likely.
 
Once again, this comes down to some of the aspects of the CBA here being not just idiosyncratic but fundamentally ridiculous from any legitimate perspective of basic fairness and justice. And the law does, at times, protect people from negotiating such stupidities, though I don't for a moment believe that Berman will address that in this case--even if in a more perfect world he should, or someone fucking should...
 

BroodsSexton

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DennyDoyle said:
the NFLPA bargained that Goodell could sit. They didn't bargain away the evident partiality ground for vacating awards.

It would be a very strange ruling to me if the court were to hold that agreeing that an affiliate or representative of one party can sit implies consent to a non-neutral decisionmaker.
Right--this is key. The fact that Goodell is a party-affiliate arguably imposes on him a greater duty to avoid the appearance of impropriety. That's an argument I'd be making.

I'm more and more bullish on the NFLPA position.
 

DennyDoyle'sBoil

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twothousandone said:
Because the NFLPA bargained for it?
That's really a question for them. Maybe they got a greater rev split by accepting that than they would have by demanding something that was truly impartial.

The NFLs argument isn't subtle. The Union knew Goodell would be biased, yet they agreed that he's the final arbiter. Defer to the arbiter, Judge. NFLPA agreed to it.
 
I think we're buying a premise here that is absurd.  The NFLPA most certainly did not consent to a non-neutral arbitrator.  There is nothing whatsoever in Article 46 to suggest that the NFLPA intended to agree to impartiality.  The NFL agreed to provide appeals. They agreed to permit them to be heard by a "hearing officer."  There is a means of appointing a hearing officer.  The only thing that the NFLPA agree to was that Goodell could elect to be the "hearing officer."  I think the NFLPA would very much take issue with the suggestion that "the Union knew Goodell would be biased."  They would say they most certainly did not. 
 
The argument would have to be that the NFLPA implicitly agreed to allow a biased decisionmaker.  The word "arbitration" has meaning.  The word "hearing" has meaning.  Both are fundamentally inconsistent with a biased decisionmaker.  I think a court would be on exceptionally firm ground to hold that if a party is going to be held to have consented to a biased decisionmaker, the language needs to be very explicit.  This language is not explicit.  Just because Goodell, by virtue of his position with the league and imposition of discipline, has perhaps motive to be biased, that's very different from suggesting the union gave him permission.
 
 
There is no Rev said:
 
In a way, this is broaching the issue of whether or not the NFLPA and NFL bargained for something that they cannot legally bargain for, does it not? That's not exactly what I'm trying to convey, but it's close.
 
I mean, insofar as "evident partiality" is grounds for vacating an award, the underlying notion is that evident partiality on the part of the arbitrator is not legal. So bargaining for an evidently partial arbitrator has at best a problematic relationship with the law.
 
The question I think you're asking is something close to this:  Imagine a party agreed explicitly in an arbitration agreement that the other side could sit as "arbitrator" and could be biased or partial.  Would that be enforceable?  I think the answer is probably no.  It's true that parties are given wide latitude to agree to alternative dispute resolution, but I would suggest that, under any reasonable definition, this would not be "arbitration."  
 
But let's assume for a moment that I'm wrong.  Let's say that it's not prohibited.  You still have the question whether the NFLPA really did the equivalent in this agreement.  No way.  Even if you permit parties to agree to biased arbitrator, courts will strain to avoid an interpretation of a contract that is unreasonable or creates a serious legal issue.  I think if you're going to treat such as "arbitration," the language needs to be explicit.  Again, there is nothing whatsoever in Article 46 that suggest in the remotest sense that the "hearing officer" is permitted to be biased.  It says the hearing officer can be Goodell.  But those are two very different things.
 

Myt1

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There is no Rev said:
 
In a way, this is broaching the issue of whether or not the NFLPA and NFL bargained for something that they cannot legally bargain for, does it not? That's not exactly what I'm trying to convey, but it's close.
 
I mean, insofar as "evident partiality" is grounds for vacating an award, the underlying notion is that evident partiality on the part of the arbitrator is not legal. So bargaining for an evidently partial arbitrator has at best a problematic relationship with the law.
 
This then raises the issue of the law addressing "evident partiality" as a descriptor of behavior, which is different from the more essential notion of the structural position of being partial--can someone in a structural position to be partial behave without partiality? Sure. But it's almost by definition less likely.
 
Once again, this comes down to some of the aspects of the CBA here being not just idiosyncratic but fundamentally ridiculous from any legitimate perspective of basic fairness and justice. And the law does, at times, protect people from negotiating such stupidities, though I don't for a moment believe that Berman will address that in this case--even if in a more perfect world he should, or someone fucking should...
Yeah, generally speaking, all sorts of regular contractual provisions can be void as a matter of being against public policy or against the law, or unconscionable.

But CBAs are different. Generally even state regulation of matters they cover is only allowed if it's a "minimum labor standard."

As for DDB's point, I find it difficult to believe that a unions can bargain away rights to jury trial and other fundamental rights, including bargaining away a grievance process in its entirety (that is, bargaining away a right to arbitration) but wouldn't have the right to bargain for an evidently partial arbitrator.

IIRC, the union ha the power to bargain away any grievance procedure and just appoint Goodell as the final decider, no?
 

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DennyDoyle'sBoil said:
The question I think you're asking is something close to this:  Imagine a party agreed explicitly in an arbitration agreement that the other side could sit as "arbitrator" and could be biased or partial.  Would that be enforceable?  I think the answer is probably no.  It's true that parties are given wide latitude to agree to alternative dispute resolution, but I would suggest that, under any reasonable definition, this would not be "arbitration."  
 
But let's assume for a moment that I'm wrong.  Let's say that it's not prohibited.  You still have the question whether the NFLPA really did the equivalent in this agreement.  No way.  Even if you permit parties to agree to biased arbitrator, courts will strain to avoid an interpretation of a contract that is unreasonable or creates a serious legal issue.  I think if you're going to treat such as "arbitration," the language needs to be explicit.  Again, there is nothing whatsoever in Article 46 that suggest in the remotest sense that the "hearing officer" is permitted to be biased.  It says the hearing officer can be Goodell.  But those are two very different things.
 
 
Myt1 said:
Yeah, generally speaking, all sorts of regular contractual provisions can be void as a matter of being against public policy or against the law, or unconscionable.

But CBAs are different. Generally even state regulation of matters they cover is only allowed if it's a "minimum labor standard."

As for DDB's point, I find it difficult to believe that a unions can bargain away rights to jury trial and other fundamental rights, including bargaining away a grievance process in its entirety (that is, bargaining away a right to arbitration) but wouldn't have the right to bargain for an evidently partial arbitrator.

IIRC, the union ha the power to bargain away any grievance procedure and just appoint Goodell as the final decider, no?
 
I think what I'm getting at is something that has come up at times over the last 135 years or so of how the jurisprudence should work and, most notably, positivism's defeat of pragmatism in the legal realm.
 
In a sense, I'm thinking people are allowed to bargain for something that is not realistically feasible, but is abstractly imaginable as possible, and is therefore legal. To whit--Goodell can be the arbitrator and rule without evident partiality even in a case with the facts and, more importantly, circumstances such as these.
 
I mean, it is technically possible, yes? And how would one demonstrate the fact one way or another?
 

SumnerH

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There is no Rev said:
 
In a way, this is broaching the issue of whether or not the NFLPA and NFL bargained for something that they cannot legally bargain for, does it not? 
 
That seems like a non-starter to me.  If they can bargain for age discrimination against people who aren't a party to the negotiations (see: Maurice Clarett) then the deference to collective bargaining seems extremely broad (a point which Myt1 makes).
 
The argument that the NFLPA didn't agree to an impartial arbiter seems a lot more plausible than anything attacking the legal scope of collective bargaining.
 

Steve Dillard

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I think there are many arguments that tie together and though they typically are not in themselves strong enough to cause vacating the award, do become so here.

On the point above, one could argue that the provision does not appoint the commish to hear appeals. It creates a hearing officer. It is only the last sentence that states Goodell may serve. Is that implied that he can do so only in minimal biased cases and not controversial ones where he is more biased?

More likely as a judge I would be wary of striking this entire concept, but would hold Goodell to operating an appellate function. As such, he cannot supplant the record on theist crucial point of "general awareness" and find facts of Brady inducing the conduct. All without prior notice.

That way I do not have to impugn Gooddel, but hold him to the concept of the hearing being the second look "appellate" function rather than the initial punishment.
 

joe dokes

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I think it's just the equivalent of a FRAP 28(j) letter. It looks like Kessler may have handed the Judge a list of authorities at the hearing. I think it's only fair that the league would get to submit a letter in response
 
That was my thought
.
 

MarcSullivaFan

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The underlying issue here isn't really deference to collective bargaining writ large.  It's whether the decisions of the Article 46 "arbitrator" are entitled to the high level of deference provided by Enterprise Wheel and its progeny. (Apologies in advance for use of pretentious legal nomenclature-.)
 
Section 301 of the LMRA allows parties to collective bargaining agreements (and in some circumstances employees)to sue directly in federal court for violations of such agreements. Enterprise Wheel says that when the parties have bargained for an arbitration procedure to resolve conflicts over the meaning and application of the agreement (typically in exchange for a no-strike clause), the courts should accord a high level of deference to the arbitrator's decision because labor arbitrators have special expertise in resolving such conflicts, the trade off of arbitration for no-strike language fosters industrial peace, it relieves the courts of the burden of deciding these issues--and probably several other reasons I've forgotten.  Implicit in these policy considerations is the assumption that such arbitration procedures will provide at least a minimal level of industrial due process.   
 
Notably, absent an arbitration clause, a CBA party could file a lawsuit in federal court over the merits of an alleged CBA violation. That doesn't mean that the parties are not bound by the CBA--it means that the court itself gets to decide whether the CBA has been violated.  And indeed, Kessler made this point at the last hearing.  So, at some point you have to ask whether Article 46 really provides for the type of "arbitration" that is entitled to deference under Enterprise Wheel.  For whatever reason (and I'm sure it's a good one), Kessler has seemed to go to great pains to avoid going down that road.
 

Myt1

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Makes sense, thanks man.

Writ large, could parties to a CBA waive their right to go to court and replace it with something that was not arbitration, or is it basically either/or?
 

Shelterdog

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DennyDoyle'sBoil said:
 
I think we're buying a premise here that is absurd.  The NFLPA most certainly did not consent to a non-neutral arbitrator.  There is nothing whatsoever in Article 46 to suggest that the NFLPA intended to agree to impartiality.  The NFL agreed to provide appeals. They agreed to permit them to be heard by a "hearing officer."  There is a means of appointing a hearing officer.  The only thing that the NFLPA agree to was that Goodell could elect to be the "hearing officer."  I think the NFLPA would very much take issue with the suggestion that "the Union knew Goodell would be biased."  They would say they most certainly did not. 
 
The argument would have to be that the NFLPA implicitly agreed to allow a biased decisionmaker.  The word "arbitration" has meaning.  The word "hearing" has meaning.  Both are fundamentally inconsistent with a biased decisionmaker.  I think a court would be on exceptionally firm ground to hold that if a party is going to be held to have consented to a biased decisionmaker, the language needs to be very explicit.  This language is not explicit.  Just because Goodell, by virtue of his position with the league and imposition of discipline, has perhaps motive to be biased, that's very different from suggesting the union gave him permission.
 
 
 
The question I think you're asking is something close to this:  Imagine a party agreed explicitly in an arbitration agreement that the other side could sit as "arbitrator" and could be biased or partial.  Would that be enforceable?  I think the answer is probably no.  It's true that parties are given wide latitude to agree to alternative dispute resolution, but I would suggest that, under any reasonable definition, this would not be "arbitration."  
 
But let's assume for a moment that I'm wrong.  Let's say that it's not prohibited.  You still have the question whether the NFLPA really did the equivalent in this agreement.  No way.  Even if you permit parties to agree to biased arbitrator, courts will strain to avoid an interpretation of a contract that is unreasonable or creates a serious legal issue.  I think if you're going to treat such as "arbitration," the language needs to be explicit.  Again, there is nothing whatsoever in Article 46 that suggest in the remotest sense that the "hearing officer" is permitted to be biased.  It says the hearing officer can be Goodell.  But those are two very different things.
 
I think this is also why the Pash testimony is so important to Berman.   Berman's a smart guy and he knows that Pash is the link between Goodell and the Wells report. (Right or wrong, Berman also made clear in the last hearing that he thinks Wells' testimony about Pash's limited role is bullshit)  If Goodell is going to be a hearing officer than he's got to comport himself like one and if he's getting updates on the investigation, blessing particular types of punishment, then he has no business hearing an appeal.
 

Doug Beerabelli

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IANALABORL, but it would seem that the premise a) the NFLPA bargained for certain specific things in the CBA, and  premise b) Rajah has the authority to ignore those prior bargained for provisions because the NFLPA and NFL bargained for Rajah to have such rights to do so in his discretion would be incongruous.   The latter now being an interpretation CBA languarge of power granted to RG (and not a clear grant of power) per the NFL claims, at least in certain aspects of this case, to allow for the ignoring of more specific and clear aspects of the CBA.   Is it accurate to say a judge/arbiter has to read the entire CBA as a whole to get the full meaning/intent of the document?   And if so, it's illogical to interpret gray area language in one provision to "undo" specific languarge in other parts of the agreement.    If languarge is clear one provision overrides another (either at all times or in certain circumstances), than this concept would not apply.
 
Not sure if this applies accurately, or to the extent specific CBA provisions are being disregarded in this case (or if "law of the shop" type prior arbitration or caselaw decisions can have the same affect/authority as actual CBA language).
 

DennyDoyle'sBoil

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MarcSullivaFan said:
Notably, absent an arbitration clause, a CBA party could file a lawsuit in federal court over the merits of an alleged CBA violation. That doesn't mean that the parties are not bound by the CBA--it means that the court itself gets to decide whether the CBA has been violated.  And indeed, Kessler made this point at the last hearing.  So, at some point you have to ask whether Article 46 really provides for the type of "arbitration" that is entitled to deference under Enterprise Wheel.  For whatever reason (and I'm sure it's a good one), Kessler has seemed to go to great pains to avoid going down that road.
 
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.?
 
Myt1 said:
Makes sense, thanks man.

Writ large, could parties to a CBA waive their right to go to court and replace it with something that was not arbitration, or is it basically either/or?
 
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.)
 

Seabass

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I'm not a lawyer, but could this latest filing by the NFL where they state the Goodell isn't neutral kneecap his hearing of appeals going forward? Let's say we get Wayne's World Mega Happy Ending where Berman vacates based on all of Kessler's arguments, including Goodell's evident partiality, and the Second Circuit upholds Berman's ruling. There is joy throughout the streets of New England. 
 
The next time Goodell decides to suspend someone in a manner that doesn't make any sense or doesn't follow the CBA, would he be able to hear that player's appeal of his initial suspension? Or, if he did hear the appeal despite the NFLPA's protests and then is brought back into court, wouldn't the judge presiding over this new case simply refer to Brady's case and require a neutral, third party arbitrator be brought in to hear the appeal? Could this lead to a de facto removal of Goodell hearing appeals? 
 
Again, I don't think this scenario is likely at all, is what I outlined above feasible if you squint? Thanks. 
 

Otis Foster

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DennyDoyle'sBoil said:
 
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.)
 
 
This is the heart of the matter. As I've stated before, a biased arbitrator still needs to be neutral in how he conduct the proceeding. Flawed process and arbitrary behavior lacking all 'shop law' support is precisely what an arbitrator can't engage in. It lacks the elements of an arbitration. I continue to believe that a party who also serves as an arbitrator operates under a heavier burden of neutrality than a 3rd party, but don't think Berman will go there.
 
(Don't know how to get rid of the extra quotation field.)
 

DennyDoyle'sBoil

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Otis Foster said:
 
 
This is the heart of the matter. As I've stated before, a biased arbitrator still needs to be neutral in how he conduct the proceeding. Flawed process and arbitrary behavior lacking all 'shop law' support is precisely what an arbitrator can't engage in. It lacks the elements of an arbitration. I continue to believe that a party who also serves as an arbitrator operates under a heavier burden of neutrality than a 3rd party, but don't think Berman will go there.
 
(Don't know how to get rid of the extra quotation field.)
 
Yeah, I could see a rule that says something like:  Sure, you have the right to sit, but when you do, you need to ensure you turn extra square corners, because you're already halfway down the road toward evident partiality.
 
The NFL wants to go in the opposite direction.  If you agree to an arbitrator that has motive to be biased, you forgo any right to challenge him for being biased if he decides to give in to that temptation.  That seems crazy to me.
 

lambeau

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I think we've got it right--an arbitrator with structural bias has an obligation not to run amok--the NFL fails to acknowledge this distinction.
Wise men like Tagliabue, Giamatti, Adam Silver could do this; Roger doesn't get it.
 

geoduck no quahog

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I'm going to quote the author of a recent article in Forbes concerning the Missouri Supreme Court's narrow ruling against The Commissioner for our lawyers to parse:
 

Section 8.3 gives the commissioner complete control and final jurisdiction to arbitrate any dispute between any player, coach or other employee of the league.
 
Section 8.1 requires the NFL to employ a commissioner, at which point fixed compensation during his employment is decided.
 
Section 8.2 then dictates that the “commissioner shall have no financial interest, direct or indirect, in any professional sport.”
 
 
From the Court's findings:
 
...Four judges further find that the terms of the contract designating the NFL commissioner, an employee of the team owners, as the sole arbitrator with unfettered discretion to establish the rules for arbitration are unconscionable and, therefore, unenforceable.
 
Four judges find that Missouri’s uniform arbitration act provides a mechanism to imply the terms missing from the arbitration agreement and provides the rules for appointing an arbitrator to replace the NFL commissioner.
 
Accordingly, four judges issue a permanent writ of mandamus directing the trial court to vacate its order granting the motion to compel arbitration and, instead, issue an order compelling arbitration wherein the trial court appoints a neutral arbitrator, implies the specific terms of arbitration from applicable statues in Missouri’s uniform arbitration act, and directs the parties to proceed with arbitration... 
 
Now this case is substantially different in that it involved an employee of the Rams dispute with Rams' ownership and the employee contended (among other things) that the Commissioner, as an employee of the Owners, could not arbitrate on behalf of his employers (and uses a case called Vincent to back that up - where the head of a Home Builders Association was to select an arbitrator in a case involving a home builder). The Commissioner's status was called "unconscionable" by the employee.
 
The dissenting responses (in part) did not seem to hinge around the contention of evident partiality, but looks like they had more to do with precluding an arbitration before it occurs. One dissenter stated that " Not only is the NFL commissioner not the owner of the Rams or another NFL team, the NFL commissioner does not exclusively represent the interests of the team owners. He is hired and employed by the NFL, not by the owners individually
or collectively..."
 
Back to the Forbes article:
 

However, it’s a carrot that the NFL Players Association can definitely dangle to other courts when challenging the league’s authority over player issues, including league-mandated suspensions and fines. It has also set a precedent for the other 21 states that house NFL teams to follow suit....
 
Let’s say a Kansas City Chiefs player is suspended for violating the league’s substance abuse policy. What is to stop him from arguing that the commissioner is not unbiased in his actions? Bias can come in multiple forms, including but not limited to a financial relationship the commissioner has with teams that employ said players.
 
More than anything, this ruling could act as a tip of the iceberg. There is now precedent set when it comes to a high court challenging the commissioner’s nearly unchecked powers. In the state of Missouri, that precedent is there in black and white.
 
 


Any relevance? Or should this post go into the other thread...
 

geoduck no quahog

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Way out of my comfort zone, but here's one relevant excerpt from that ruling:
 

In November 2008, he signed his most recent contract with the Rams. It covered the 2009-2010 and 2010-2011 NFL seasons. Like many of his prior employment contracts, this contract contained an arbitration clause that stated:
Hewitt agrees to abide by and to be legally bound by the Constitution and ByLaws and Rules and Regulations of the National Football League and by the decisions of the Commissioner of the National Football League, which shall
be final, binding, conclusive and unappealable.
 
The Rams and Hewitt also severally and mutually promise and agree that in any dispute which may arise between them, the matter in dispute shall be referred to the Commissioner of the National Football League for decision and after due notice and hearing, at which both parties may appear, the decision of said Commissioner shall be final, binding, conclusive and unappealable, and the Rams and Hewitt severally and jointly hereby release the Commissioner and waive every claim each or both have or may have against the Commissioner and/or the National Football League, and against every director, partner, officer, and stockholder of every Club in the National Football League, for all claims and demands whatsoever arising out of or in connection with any decision of the Commissioner of the National Football League.
 
The constitution and bylaws of the NFL further provided that “[t]he Commissioner shall have full, complete, and final jurisdiction and authority to arbitrate.”
 
 

A summary of the ruling is as follows (I have no expertise on relevance):
 
- Five judges find that a writ of mandamus is the appropriate mechanism to review whether the trial court erred in sustaining a motion to compel arbitration.
 
- Four judges find that Mr. Hewitt’s employment contract contained a valid and enforceable arbitration clause that required him to arbitrate disputes, including his statutory claims, against the Rams.
 
- Four judges also find that the National Football League’s dispute resolution procedural guidelines setting out the essential terms of arbitration were not referenced in Mr. Hewitt’s employment contract and, therefore, were not incorporated into his contract.
 
- Four judges further find that the terms of the contract designating the NFL commissioner, an employee of the team owners, as the sole arbitrator with unfettered discretion to establish the rules for arbitration are unconscionable and, therefore, unenforceable.
 
- Four judges find that Missouri’s uniform arbitration act provides a mechanism to imply the terms missing from the arbitration agreement and provides the rules for appointing an arbitrator to replace the NFL commissioner.
 
- Accordingly, four judges issue a permanent writ of mandamus directing the trial court to vacate its order granting the motion to compel arbitration and, instead, issue an order compelling arbitration wherein the trial court appoints a neutral arbitrator, implies the specific terms of arbitration from applicable statues in Missouri’s uniform arbitration act, and directs the parties to proceed with arbitration. 
 

WayBackVazquez

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There's a big difference in bargaining power between the employee in this case (ie, basically none, take it or leave it) and in the case of a union of millionaires represented by the most sophisticated of counsel negotiating a CBA. I mean, you want me to tell you that state court opinion related to a non-Union employee not governed by the CBA is on point? it's not.
 

tedseye

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Interesting discussion re bargaining, but perhaps unnecessarily complex. Even if you accept Goodell as a "hearing officer" with some built-in risk of partiality in certain matters, there are several ways Goodell presided here that support a finding of evident partiality. In order of strength of the evidence (and strength of the underlying principle), any one or more are probably sufficient to support that finding: 1) reviewing his own action, 2) barring PA questioning Pash as witness, 3) upholding NFL Mgt. Council claim of privilege re Wells report contributors given Pash role as editor, 4) denying PA attempt to discover or present other evidence of partiality.

PA did not bargain for these types of actions by the "hearing officer." Indeed, they are inconsistent with such a role. As such, they do not "draw their essence" from the CBA.
 

WayBackVazquez

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Yes, and all of that has been discussed at length here.

But a decision of a state Supreme Court relating to whether arbitration by the commissioner over a dispute between a member team and an employee not subject to a CBA, which is contrary to every other decision relating to other such employees, is not pertinent here. That argument has been not made, and the union (which is well aware of the Hewitt decision) has not cited the case.

"Even if you accept" Goodell as a hearing officer over player discipline, is what has arguendo been accepted by the NFLPA here. Its argument against his doing so in this case, as you repeat, is based on the assertion that HIS OWN conduct was at issue. (Not even, as you assert, reviewing his own decision, but in connection with allegedly improperly delegating his authority.)
 

tedseye

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Yes, but no arguendo about the PA accepting Commissioner as hearing officer: the letter reply filed most recently expressly accepts it - but not the "extreme" ways he has misused that role.
 

tedseye

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"The Union may have agreed to Mr. Goodell serving as arbitrator under Article 46, but it did not agree he could abdicate his responsibility as an arbitrator under the LMRA and FAA and conduct fundamentally unfair proceedings in which he cast aside undisputed CBA requirements, adjudicated his own conduct, and issued an unprincipled arbitration award based on his unilateral notions of industrial policy. This is exactly the type of extreme case that even the NFL now concedes the Court has the power to vacate."

The above says it better than my paraphrase, literally the PA's last word.to Judge Berman at the end of the reply letter brief filed Monday.

"
 

WayBackVazquez

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Yeah, that's what I said. In all caps.

The evident partiality argument is not about reviewing his own decision (which was explicitly bargained for), but reviewing the propriety of his conduct in delegating the initial discipline. What is the point you're trying so hard to make?
 

wade boggs chicken dinner

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I'm going to quote the author of a recent article in Forbes . . . .
As WBV explains, this article (deleted link so no one clicks through) is terrible. But more importantly - just so no one is confused - this quote is nonsense:
 
However, its a carrot that the NFL Players Association can definitely dangle to other courts when challenging the leagues authority over player issues, including league-mandated suspensions and fines. It has also set a precedent for the other 21 states that house NFL teams to follow suit....
The NFLPA is not using the MO case for anything since one was a form employment contract and one is a CBA.

The legal analysis in this thread is as good as there is on the internet but this Forbes article isn't up to that standard.
 

tedseye

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WayBackVazquez said:
The evident partiality argument is not about reviewing his own decision (which was explicitly bargained for), but reviewing the propriety of his conduct in delegating the initial discipline. What is the point you're trying so hard to make?
WBV, I respect your posts and breadth of legal perspective, but I think your argument here is backward. Doesn't Kessler in this summing up say just the opposite? It is about Goodell reviewing his own conduct, and he doesn't mention delegation at all.
 

WayBackVazquez

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Sigh.

In post 1278, you specifically identify four grounds which you assert support a finding of evident partiality. Number (1) conflates the NFLPA's argument that Goodell demonstrated evident partiality by his insistence upon acting as hearing officer when one of the issues raised in the appeal was Goodell's very own alleged violation of the CBA (delegation) with reviewing his own action (issuing the penalty). Neither (2), (3), nor (4) relate to evident partiality, but rather to fundamental unfairness of the process/failure to draw their essence from the CBA. Goodell could have let Brady spin a random wheel that came up with King Solomon or Jimmy Carter to appoint as arbitrator, and the union would still raise these arguments as supporting vacatur, but not as evident partiality.

Your quote from this week's letter brief, in which nearly every paragraph by necessity consists of one sentence followed by a string cite, does not contradict this. The union threw together all the reasons the award should be vacated without elaboration, and without placing them into their "buckets."

The "conduct" which the union argues Goodell should not have reviewed is delegation. You can find this in the actual briefs filed. (7/29 filing at 50-51; 8/14 brief at 14-15.)
 

Super Nomario

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WayBackVazquez said:
Sigh.

In post 1278, you specifically identify four grounds which you assert support a finding of evident partiality. Number (1) conflates the NFLPA's argument that Goodell demonstrated evident partiality by his insistence upon acting as hearing officer when one of the issues raised in the appeal was Goodell's very own alleged violation of the CBA (delegation) with reviewing his own action (issuing the penalty). Neither (2), (3), nor (4) relate to evident partiality, but rather to fundamental unfairness of the process/failure to draw their essence from the CBA. Goodell, could have spun a random wheel and come up with King Solomon or Jimmy Carter to appoint as arbitrator, and the union would still raise these arguments as supporting vacatur, but not as evident partiality.

Your quote from this week's letter brief, in which nearly every paragraph by necessity consists of one sentence followed by a string cite, does not contradict this. The union threw together all the reasons the award should be vacated without placing them into their buckets.

The "conduct" which the union argues Goodell should not have reviewed is delegation. You can find this in the actual briefs filed. (7/29 filing at 50-51; 8/14 brief at 14-15.)
What are the practical implications of the improper delegation argument? If the court found that Goodell was in fact partial in his review of his own delegation, would they vacate the punishment and then it would go to a neutral arbitrator to determine if the delegation was proper or not? And if no, wouldn't that just mean that Goodell would have to levy a new punishment without delegating (and he'd still be able to hear the appeal of his own decision per the CBA)? Or would Goodell being found to violate the CBA mean the whole punishment is thrown out on a technicality?
 

WayBackVazquez

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Super Nomario said:
What are the practical implications of the improper delegation argument? If the court found that Goodell was in fact partial in his review of his own delegation, would they vacate the punishment and then it would go to a neutral arbitrator to determine if the delegation was proper or not?
That is basically my prediction in the other thread. But one never knows whether a judge is going to flex his muscles and decide more than you think he will or should. He could go all the way, and say it was improper. From there, I cant see Brady facing anything else.
 

geoduck no quahog

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WayBackVazquez said:
There's a big difference in bargaining power between the employee in this case (ie, basically none, take it or leave it) and in the case of a union of millionaires represented by the most sophisticated of counsel negotiating a CBA. I mean, you want me to tell you that state court opinion related to a non-Union employee not governed by the CBA is on point? it's not.
 
Thanks WBV. The part that stood out to me (reading the entire decision) was the stuff about "neutral arbiter", which is apparently not relevant due to the relationship of the CBA in Brady's case. I'll limit my reading lessons from now on to cases cited by Kessler - and then apply for a paralegal position, or blow my brains out. OTOH, I've learned more this past month about labor law, including arbitration, than in years of working with contracts that employ both. Good on all of you members of SS&H, LLP. 
 

tedseye

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Re the "improper delegation" issue: I had thought that admissions made by Goodell - the- arbitrator in denying motions for discovery (his and Vincent ' s testimony) that he had not delegated but indeed had participated in the first action, collapsed the delegation question into the issue of him reviewing his own disciplinary decision. This because Goodell in his ruling in effect admitted as a factual matter that he did not delegate: thus the prominence of the "reviewing his own decision."

If I have misunderstood this point, apologies. But I think some arguments have been further refined by the progress of points developed or conceded in the course of the briefing and arguments.
 

WayBackVazquez

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tedseye said:
Re the "improper delegation" issue: I had thought that admissions made by Goodell - the- arbitrator in denying motions for discovery (his and Vincent ' s testimony) that he had not delegated but indeed had participated in the first action, collapsed the delegation question into the issue of him reviewing his own disciplinary decision. This because Goodell in his ruling in effect admitted as a factual matter that he did not delegate: thus the prominence of the "reviewing his own decision."

If I have misunderstood this point, apologies. But I think some arguments have been further refined by the progress of points developed or conceded in the course of the briefing and arguments.
 
Goodell claims he did not delegate (an admission isn't in one's favor). The union has never conceded that point, and it has never collapsed, expanded, or abandoned its argument on evident partiality. I have given you citations and you just want to keep barreling ahead, based on your interpretation of one sentence in supplemental authorities reply, I guess.
 
Here's Kessler at oral argument on evident partiality:
 
 

Reverend

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tedseye said:
Re the "improper delegation" issue: I had thought that admissions made by Goodell - the- arbitrator in denying motions for discovery (his and Vincent ' s testimony) that he had not delegated but indeed had participated in the first action, collapsed the delegation question into the issue of him reviewing his own disciplinary decision. This because Goodell in his ruling in effect admitted as a factual matter that he did not delegate: thus the prominence of the "reviewing his own decision."

If I have misunderstood this point, apologies. But I think some arguments have been further refined by the progress of points developed or conceded in the course of the briefing and arguments.
 
It would actually be impossible for the League to argue this. Check it out:
 
The CBA requires Goodell to issue the initial punishment. (Where things get dicey was the League trying to play cute and make it like Vincent was giving the punishment and Goodell reviewing it, but they backtracked quickly once they realized that Vincent deciding initial discipline would violate the CBA and said that Goodell dealt the discipline and he delegated writing the letter, which is silly, but whatever.)
 
Given that: 1) The CBA requires Goodell to issue the initial punishment; 2) the CBA explicitly allows Goodell to hear appeals, the NFLPA by definition agreed in the CBA to allow Goodell to hear appeals of his own rulings.
 
As absurd as that sounds... but there it is.
 

AB in DC

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Correct me if I'm wrong, but I think this issue isn't Goodell reviewing his decision per se, but the fact that Goodell's actions (and actions of his employees) are specifically at issue.  If this were something like the Peterson or Greg Hardy case, for example, where the NFL simply used publicly available information in combination with the player's own testimony, then the actions of the NFL front office aren't particularly relevant.  But where you have an "independent" investigation where the sole basis for punishment was a report that could easily have been influenced by interactions with the NFL, that's a much different situation.
 

WayBackVazquez

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AB in DC said:
Correct me if I'm wrong, but I think this issue isn't Goodell reviewing his decision per se, but the fact that Goodell's actions (and actions of his employees) are specifically at issue.  If this were something like the Peterson or Greg Hardy case, for example, where the NFL simply used publicly available information in combination with the player's own testimony, then the actions of the NFL front office aren't particularly relevant.  But where you have an "independent" investigation where the sole basis for punishment was a report that could easily have been influenced by interactions with the NFL, that's a much different situation.
 
Yes, mostly. I would strike your last sentence. I think the independence or not of the investigation is a bit of a red herring. What the union attacks on an evident partiality basis is Goodell's public "touting" of its independence and conclusions, not whether it was the sole basis for punishment, or that it was influenced by the NFL. I think this is the weakest of the union's arguments, because IMO, Goodell could have conducted the investigation himself, given a press conference about how thorough it was, and still heard the appeal under the CBA. The stronger argument (on evident partiality, which itself, is one of the union's weaker arguments) is that the union specifically identified delegation as a violation of the CBA and wanted it to be heard, and Goodell could not have been impartial in deciding whether his own conduct was appropriate.
 

AB in DC

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I think my last point goes more to fundamental fairness than evident partiality.  The NFLPA needs to be able to appeal the fact-finding, and if the fact-finding had been influenced by Goodell and/or his staff, he should recuse, right?  Isn't that why Goodell was forced to use an independent arbiter in the bounty case?
 

WayBackVazquez

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AB in DC said:
I think my last point goes more to fundamental fairness than evident partiality.  The NFLPA needs to be able to appeal the fact-finding, and if the fact-finding had been influenced by Goodell and/or his staff, he should recuse, right?  Isn't that why Goodell was forced to use an independent arbiter in the bounty case?
 
You're just basically saying Goodell can never exercise the full power he was granted in the CBA, then. Goodell is required under the CBA to issue the discipline. I believe there is nothing in the CBA about investigations, independent or not prior to the discipline. And Goodell is expressly authorized to hear the appeal, even if the decision to discipline (or the fact-finding) was solely his. The union has not claimed he should recuse in such an instance. Because they'd be swimming upstream.
 
Goodell recused himself in Bountygate basically because he said so. The union made the same argument (Goodell spoke publicly about the discipline before the hearing(s)) there, but that rationale has not been accepted by any court.
 

twothousandone

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WBV: I've read the thread (and I swear, Rev, I just re-read the first post!), but I'm lost as to how the argument gets back to delegation. I know you are debating with TedsEye, and I see the pic of Kessler's argument. But, somewhat randomly pulling stuff you've already put in the thread (not that you can't change your mind)
 
WayBackVazquez said:
EDIT: that really does make things interesting. I predicted that Berman would vacate on notice re ball deflation, but remand for reconsideration
"Notice" isn't related to delegation, is it?
 
WayBackVazquez said:
He also didn't take too kindly to its suggestion that the arbitrator was entitled to nearly unlimited deference
Is this related to delegation?

I also think you (early on) kind of agreed below were the four key arguments. Is there one that is focused on delegation? I'm not trying to play gotcha', and I remember, vaguely at this point, the 'Vincent decided the punishment' versus 'Goodell approved Vincent's recommendation' argument.

I just want to make sure I'm reading it right that you believe the big issue is delegation (which I agree happened and the league lied about it.) Not notice. Not bias, etc.
1. No advance notice of punishment

2. Not fair and consistent punishment

3. Unfair appeal

4. Goodell partial
 

WayBackVazquez

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twothousandone said:
WBV: I've read the thread (and I swear, Rev, I just re-read the first post!), but I'm lost as to how the argument gets back to delegation. I know you are debating with TedsEye, and I see the pic of Kessler's argument. But, somewhat randomly pulling stuff you've already put in the thread (not that you can't change your mind)
 
"Notice" isn't related to delegation, is it?
 
Is this related to delegation?

I also think you (early on) kind of agreed below were the four key arguments. Is there one that is focused on delegation? I'm not trying to play gotcha', and I remember, vaguely at this point, the 'Vincent decided the punishment' versus 'Goodell approved Vincent's recommendation' argument.

I just want to make sure I'm reading it right that you believe the big issue is delegation (which I agree happened and the league lied about it.) Not notice. Not bias, etc.
 
No, I do not believe the big issue is delegation. I do not believe the big issue is evident partiality. The NFLPA argues that the primary evidence of Goodell's partiality is his refusal to recuse himself (or even permit discovery related to) over the issue of his delegation to Vincent. But evident partiality is IMO the union's weakest argument, and its appearance at the end of the brief would indicate the union sees it that way, too.
 
As I've said, I think the union's strongest arguments are lack of notice on potential penalty for alleged ball deflation, and failure to follow the law of the shop regarding penalty for non-cooperation.
 

AB in DC

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WayBackVazquez said:
 
You're just basically saying Goodell can never exercise the full power he was granted in the CBA, then. Goodell is required under the CBA to issue the discipline. I believe there is nothing in the CBA about investigations, independent or not prior to the discipline.
 
I don't entirely follow.  The CBA has nothing about conflict-of-interest, but I thought everyone agreed that there are cases when Goodell could not serve as arbiter, regardless of CBA silence on this matter, such as when his prior actions were at issue, such as in Rice.  (I agree with you that the public comments complimenting Wells hardly qualifies, btw).  So why is it that CBA's silence on investigations precludes my argument, but CBA's silence on conflict-of-interest doesn't preclude that one?
 

WayBackVazquez

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AB in DC said:
 
 

 
I don't entirely follow.  The CBA has nothing about conflict-of-interest, but I thought everyone agreed that there are cases when Goodell could not serve as arbiter, regardless of CBA silence on this matter, such as when his prior actions were at issue, such as in Rice.  (I agree with you that the public comments complimenting Wells hardly qualifies, btw).  So why is it that CBA's silence on investigations precludes my argument, but CBA's silence on conflict-of-interest doesn't preclude that one?

 
 
No, everybody does not agree with that. The union argues that; it sounds good to most of us here; but the league certainly doesn't agree:
 

Although the NFLPA argues that it did not agree for the Commissioner to serve as arbitrator in a case “where . . . the Commissioner’s own conduct is at issue,” Countercl. ¶ 43, this supposed limitation appears nowhere in the CBA.
 

AB in DC

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Thanks.  I could have sworn that the NFL gave this rationale in other cases when an independent arbiter was appointed, but I haven't been able to dig up a single quote other than "well, that's what we decided".