Lowering the Bar on Brady's "No Notice" Argument

Has the NFLPA overlooked a key argument in its quest to have Tom Brady's four-game suspension overturned by a federal court? In its recent court filings, the NFLPA argued, among other things, that Commissioner Goodell's arbitration decision (upholding Brady's suspension) "violated the essence of the CBA by disregarding the 'law of the shop' requirement of advance notice of discipline." To bolster this point, the NFLPA draws upon a series of prior arbitration decisions (e.g., Ray Rice and Bountygate) and one judicial decision that is still on appeal (Adrian Peterson) as establishing the "law of the shop" that the NFL is required to give its players "advance notice of disciplinary policies, standards and penalties to be imposed." Specifically, the NFLPA argues that Rice, Peterson and Bountygate establish that the CBA affords players "advance notice of discipline," and that arbitrators are not free to disregard this "essence-of-the-CBA" requirement. While this argument is likely a winner (and I have been on record as predicting a Brady victory based on this specific issue, as have Michael McCann, Alan Milstein, Mike Florio, Steph Stradley, and Dan Werly), it may face a key federal court obstacle: that arbitrators are free to determine (and then reject) whether a prior arbitral decision is the 'law of the shop.'" Along those lines, the NFL has argued that Commissioner Goodell (in his role as the arbitrator) considered Brady's law of the shop argument on "prior notice" (centered on the prior decisional law) and rejected it, and that federal courts are not free to second-guess that decision. The NFL cited case-law authority from virtually every federal circuit court as giving an arbitrator such free reign, and, as such, Brady's notice argument is not necessarily a sure-fire winner. (But query whether Goodell could be an impartial arbitrator in that context when he was on the losing side in each of those prior rulings).

But, instead of tying the "advance notice" requirement to prior arbitral decisions (and thus risk having Judge Berman apply the above legal principle in the Commissioner's favor), might a better approach be to argue that the punishment meted out by Goodell was not drawn from the "essence of the CBA" (a key legal requirement) because it was based (at least certainly in part) on policies and rules outside of the CBA (such as the Competitive Integrity Policy, which is applicable only to teams and not players)? A series of Second Circuit opinions from the late 1980's and early 1990's (but still good law) spell this out quite clearly. In In re Marine Pollution Serv., Inc., 857 F.2d 91 (2d Cir. 1988), the Second Circuit wrote:

An arbitrator's decision is entitled to substantial deference, and the arbitrator need only explicate his reasoning under the contract "in terms that offer even a barely colorable justification for the outcome reached" in order to withstand judicial scrutiny, Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691, 704 (2d Cir. 1978). Nevertheless, "[t]his is not to say that simply making the right noises--noises of contract interpretation--an arbitrator can shield from judicial correction an outlandish disposition of a grievance," Ethyl Corp. v. United Steelworkers, 768 F.2d 180, 187 (7th Cir. 1985), cert. denied, 475 U.S. 1010, 106 S.Ct. 1184 (1986). When it is clear that the arbitrator "must have based his award on some body of thought, or feeling, or policy, or law that is outside the contract (and not incorporated in it by reference . . ., the arbitrator has failed to draw the award from the essence of the collective bargaining agreement.

Id. at 94 (emphasis added); accord, New York Typographical Union No. 6 v. Printers League Section of Ass'n of Graphic Arts, 878 F.2d 56, 60 (2d Cir. 1989) (same); Leed Architectural Prods., Inv. v. United Steelworkers of Am., Local 6674, 916 F.2d 63, 65 (2d Cir. 1990) (where the arbitrator has derived his authority from sources outside the collective bargaining agreement, his award cannot stand).

This argument (which is still in play because the NFLPA's recent federal court submission raises the broader "essence of the CBA" argument and even cites the Marine Pollution decision, though not for that precise point) affords the players' union and Brady an important substantive advantage: it would overcome the NFL's argument that Goodell can consider AND reject prior arbitral decisions in his vast discretion as arbitrator. But one thing an arbitrator can NEVER do in the labor context is base his or her award on policies that are outside of the CBA, and, hence, never the subject of collective bargaining. In this context, the NFLPA would argue that Goodell based his punishment on the team-based Competitive Integrity Policy, which is outside of the CBA and was never even given to the players.

But is that what happened here? As some have pointed out, the NFL's response to that argument is that Brady was punished under Article 46 of the CBA, not the Competitive Integrity Policy, that he had actual notice of the rule about PSI levels and "constructive notice" of the Competitive Integrity Policy, and that he was also aware of the 'conduct detrimental' language in the CBA and the standard player contract. But the Wells Report and the arbitration hearing transcript paint a different picture. Page 1 of the Wells Report, under the heading of "Executive Summary," plainly states that "[t[he investigation was conducted pursuant to the Policy on Integrity of the Game & Enforcement of Competitive Rules." That statement is repeated on page 22 of the Wells Report under the heading of "Scope of Investigation." Further, during NFLPA attorney Jeffrey Kessler's direct examination of Troy Vincent, Mr. Vincent cited the "Game-Day Operations Manual" as the policy which prohibits altering the pressure of footballs.

There is also the related issue of whether Article 46's "conduct detrimental" language can be used as a magic wand by the Commissioner to punish any and all conduct detrimental to the game in any manner that he sees fit. Mike Florio of Pro Football Talk makes a compelling case that it does not. He points to the fact that the NFL and NFLPA previously "negotiated a long list of specific rules spelling out specific punishment for a wide variety of situations where player behavior otherwise could be deemed conduct detrimental to the integrity of the game of professional football." For example, as Florio points out, the NFL's fine schedule "contains many specific instances of behavior that the Commissioner, given his extremely broad powers, could otherwise deem to be 'conduct detrimental.' But the Commissioner can't, because the NFL has already agreed that only a fine is justified for a first and second offense." Florio then uses the example of a player caught using "stickum" to help him catch the footballs thrown to him (a situation which he posits is "more aligned" with the Brady case). Would the receiver be committing "conduct detrimental" to the integrity of the game, Florio asks, if he "knew" that the equipment managers were applying stickum to his gloves? He answers "perhaps," but stresses (and this is his main point) that the "NFL has already agreed that the fine for a first offense would be $8,681."

In its Friday court filing, the NFLPA made a similar argument, noting that the Player Policies "expressly provide that for equipment violations affecting the 'integrity of competition,' "First offenses will result in fines." The mere fact that Brady has notice that an equipment infraction might be deemed 'conduct detrimental,' the NFLPA reasons, "does not give [him] notice about the potential penalty of a four-game suspension when the Player Policies [provide only for fines]. As the NFLPA aptly puts it, "a specifically applicable disciplinary policy necessarily controls over a general provision that certain behavior might be deemed 'conduct detrimental.' . . . The mere fact that players generally know they can be punished for conduct detrimental is insufficient when, as here, there is a specifically applicable policy."

This is a key argument by the NFLPA because it employs basic principles of contract interpretation (and the CBA is a contract): namely, that the specific terms in a contract will "override" the more general provisions. See Barclays Bank PLC v. Giddens (In re Lehman Bros. Holdings Inc.), 761 F.3d 303, 313 (2d Cir. 2014) (“To the extent that there appears to be conflict between these provisions, the specific governs the general.”); Rosewood Apartments Corp. v. Perpignano, 2001 WL 649824, at *4 (S.D.N.Y. June 11, 2001) ("If there is an inconsistency between a general provisions and a specific provision of a contract, the specific provision controls."). Here, the "general provision" is the 'conduct detrimental' language, while the more specific provisions are the Player Policies, which are incorporated into the CBA. If Judge Berman can be persuaded that the Player Policies for "equipment violations" can be read as covering ball tampering/deflation (and not just equipment/uniform violations), the NFLPA could prevail based on this longstanding contract law principle. But, the NFLPA should also consider using the Marine Pollution case to argue that the arbitration award did not draw from the "essence of the CBA" because it relied on non-CBA policies. This ultimately may prove to be the key to a Brady victory.

-- Daniel Wallach

Eden Hazard and a Physician's Ethical Duty to help an Injured Player

We have talked before about the ever-emerging nexus between Bioethics and Sports. A startling example occurred last week at a soccer match between Chelsea and Swansea.

Belgian Chelsea player Eden Hazard had been tripped and, as he writhed in pain on the grass, team doctor Eva Carneiro ran out to attend to what looked like a serious injury. This meant Hazard had “to leave the pitch,” whatever that means, but the bottom line was he could not return to the field. This left Chelsea one player short for the rest of the game which ended in a 2-2 tie.

Chelsea’s manager Jose Mourinho was not happy, commenting that the physician was “impulsive and naïve” and “did not understand the game.” He then announced Dr. Carneiro would not be on the sidelines in the upcoming game against Manchester.

What Mourinho did not understand is that the doctor was adhering to the doctor's ethical obligations which required the care of an injured human being in obvious distress. It is Mourinho who should not just leave the pitch, the pitch should leave him.

"An Olympian Takes a Stand" Part II

After giving it some more thought, and watching events unfold over the past 48 hours, I'm now more convinced that the story of Nick Symmonds deserves your attention. As such, I wrote an article for the Huffington Post on the subject which you can read here. Hope you can rip yourself away from Deflategate for just a few moments to read the piece.

Olympic Athlete Takes a Stand

American runner Nick Symmonds is taking a stand against the US Olympic machine, and like many athletes challenging the status quo, it may cost him dearly. Symmonds won the 800 meters at the US Trials, earning himself a spot on the USA World Championship Team which is a precursor to his third US Olympic team. However, before officially naming him to the team, USA Track & Field (USATF) required Symmonds sign a mandatory "statement of conditions" and, when he failed to do so in a timely fashion, replaced him on the roster.

At issue is the requirement that all athletes wear designated team uniforms at official functions--which means sporting Nike gear per the contract between USATF and Nike. USATF has a long term agreement with Nike through 2040 which provides significant funding to the organization. However, Symmonds is sponsored by Brooks Running, and has certain contractual obligations in his individual endorsement deal.

At question is the breadth of USATF's contract with Nike and how they choose to interpret and impose it on their athletes. Symmonds readily accedes that he will wear the official Nike gear in competition, but if, as reported, USATF is telling him not to even pack any Brooks gear for his travels, doesn't that extend the boundaries of the contract with Nike and violate Symmonds' rights as an endorser?

Like many Olympic athletes, Symmonds receives a huge percentage of his compensation NOT from salaries but from endorsement contracts. The value of those deals are predicated on visibility, including participation in the Olympics. If the USATF can quash that value by assuming exclusivity for themselves, what happens to other Olympic athletes and their endorsement value?

And, unlike professional sports leagues, it's not as if most Olympic athletes are represented by a labor union, negotiating rights and compensation with USATF in exchange for the requirement that they wear Nike apparel. This arrangement appears to be unilaterally imposed upon them, and may hamper their ability to protect and profit from their endorsement rights. Undoubtedly, it will be interesting to see how this situation unfolds, and whether Symmonds will represent his country in Brazil next summer.

Legal impact of release of Tom Brady's transcript

I have a new piece for Sports Illustrated on why the release of Tom Brady's appeal transcript indicates Brady has a good chance of beating the NFL.

Synopsis of Brady and NFLPA Legal Arguments

On Friday, Tom Brady and the NFLPA filed an Answer and Counterclaim in the New York federal court action initiated by the NFL to "confirm" the arbitration award rendered by Commissioner Goodell, which upheld Brady's four-game suspension arising out of Deflategate. This 54-page document lays out the NFLPA's legal arguments as to why Goodell's ruling should not be "confirmed" and, specifically, why it should be "vacated." It's a great piece of writing by Jeffrey Kessler and his team, and I believe it makes a compelling case to vacate Goodell's ruling, especially on the "no-notice" grounds, which have (in my view) constitutional dimensions similar to the Adrian Peterson and Ray Rice cases.

If you don't have access to PACER or just simply do not feel like slogging through a 54-page document, I have outlined the legal arguments raised by Brady and the NFLPA  in their Answer and Counterclaim (which is the "mirror image" of their petition to vacate recently filed in Minnesota). I've basically streamlined their document into a much shorter outline, with some of my own thoughts mixed in (particularly those which relate to what I see as "constitutional-level" violations, as well as a discussion of the applicable standards of review). Click here for the outline. Hope you enjoy it.

Another "Home-Field" Advantage for Tom Brady in New York?

With each passing day, we are discovering that litigating in New York presents Tom Brady with advantages not available to him in Minnesota. As my estimable colleague, Alan Milstein, pointed out the other day, the "manifest disregard of the law" standard for overturning an arbitrator's decision is recognized in the Second Circuit U.S. Court of Appeals (which covers the New York federal courts), but is no longer recognized in the Eighth Circuit (which covers the District of Minnesota, where Tom Brady originally brought his lawsuit). This may or may not a big deal. Only time will tell. But what may ultimately prove to be a "game-changer" for Brady and the NFLPA is the Second Circuit's standard for setting aside an arbitrator's decision on the basis of "evident partiality," which differs markedly from the Eighth Circuit standard.

"Evident partiality" is another way of saying that the arbitrator was biased. In the Second Circuit, "evident partiality" within the meaning of 9 U.S.C. § 10 will be found where "a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration." Ometto v. ASA Bioenergy Holding A.G., 549 Fed.Appx. 41, 42 (2d Cir.), cert. denied, 134 S.Ct. 2877 (2014). Stated another way, "evident partiality" exists under the law of the Second Circuit where it reasonably looks as though a given arbitrator would tend to favor one of the parties. This does not appear to be a particularly onerous standard to satisfy. Further, evident partiality can be "inferred" from objective facts inconsistent with impartiality. See Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013).

Now compare this test to the one espoused by the Eighth Circuit. In a case involving former Vikings players Kevin Williams and Pat Williams (who were each suspended 4 games by the NFL for violating the league's anti-doping policy), the Eighth Circuit described the "evident partiality" standard thusly: the challenging party must put forward facts that "objectively demonstrate such a degree of partiality that a reasonable person could assume that the arbitrator had improper motives.” Williams v. National Football League, 582 F.3d 863, 885 (8th Cir. 2009). This standard has been described as a "heavy burden." Id. Further, the alleged partiality "must be direct, definite, and capable of demonstration." Free Country Design & Const., Inc. v. Properformance Group, Inc., 2011 WL 603298, at *2 (W.D. Mo. Dec. 5, 2011). So, the two circuit approaches to "evident partiality" differ in at least two key respects: the Eighth Circuit requires a showing of an "improper motive," whereas the Second Circuit looks simply to whether a reasonable person would have to conclude that the arbitrator was predisposed to favoring one of the parties. But even more critically, evident partiality in the Second Circuit can be "inferred" from objective facts, whereas in the Eighth Circuit, it must be shown through "direct" proof. And so much of  Brady's counterclaim on "evident partiality" depends on circumstantial proof: the delegation of decision-making authority to Troy Vincent, the public statements lauding the Wells Report, etc.

But wait, there's more. The Eighth Circuit imposes a "heightened bar" for challenges to the partiality of an arbitrator selected under an agreement (e.g., a collective bargaining agreement) that entitles one of the parties to select an "interested" or "partial" arbitrator. In the Eighth Circuit, where the parties' arbitration agreement provides for the selection of a partial arbitrator, a party cannot claim "evident partiality" unless the party can prove that the partial arbitrator "prejudiced" the arbitration award. Winfrey v. Simmons Foods, Inc., 495 F.3d 549, 551 (8th Cir. 2007). As the Eighth Circuit explained in Winfrey, "where the parties have expressly agreed to select partial arbitrators, the award should be confirmed unless the objecting party proves that the arbitrator's partiality prejudicially affected the award." Id. (citing Delta Mine Holding Co. v. AFC Coal Properties, 280 F.3d 815, 821 (8th Cir.2001)). By contrast, the Second Circuit has not adopted this heightened standard. See Scandinavian Reinsurance Co. v. Saint Paul Fire & Marine Ins. Co., 668 F.3d 60, 76 (2d Cir. 2012) ("we need not decide at this time whether the FAA imposes a heightened burden of proving evident partiality in cases in which the allegedly biased arbitrator was party-appointed.").

These material differences could turn out to be of paramount importance to Tom Brady's "evident partiality" challenge. Thus, by "jumping the gun" and filing suit in New York (which I still maintain is a bad faith anticipatory filing, although that ship has sailed by virtue of Judge Kyle's order), the NFL may be guilty of much more than a "false start" or "illegal procedure." And it may ultimately cost them far more than just five yards. The NFL may have unwittingly ceded valuable field position to Brady and the NFLPA, a ironic turn of events given the league's brazen forum-shopping strategy.

-- Daniel Wallach