The NFL Arbitration Decisions:
Sanity Returns
Cliff Godiner
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101
314-552-6433
[email protected]
Copyright © 2016 Thompson Coburn LLP
Last Year
 Adrian Peterson: Federal Court in Minnesota had
overturned arbitration award imposing six-game
suspension and fine for alleged child abuse
 Tom Brady: Federal Court in New York had
overturned arbitration award imposing four-game
suspension for alleged knowledge of deflating
footballs and failure to cooperate with investigation
 My bold prediction: Both cases would be reversed
on appeal
Article 46 of the CBA
 The Commissioner can impose a fine or suspension
for “conduct detrimental to the integrity of, or public
confidence in, the game”
 A player has the right to appeal that decision to a
Hearing Officer appointed by Commissioner or the
Commissioner can act as Hearing Officer himself
 Parties must exchange exhibits 3 days before hearing
 No limit on remedy arbitrator may impose
Adrian Peterson
 In May 2014, Peterson allegedly beat his 4-year old
son with a tree branch, causing bruising and welts
over his body
 At time, Personal Conduct Policy allowed
suspensions and fines for domestic violence; history
had been 2 game suspensions
 August 2014: Goddell announces presumptive 6
game suspension
 Peterson subsequently suspended for 6 games
The Peterson Award
 Arbitrator Henderson upheld discipline
• The August 2014 policy wasn’t really a new policy
• Even under the prior policy, a six-game suspension was
appropriate
• Read the Ray Rice case as forbidding enhancement of prior
imposed discipline and therefore not relevant
Trial Court Decision Overturning Award
• Arbitrator was required to follow Rice award not
allowing retroactive application of August 2014
policy
• Arbitrator had no authority to determine if discipline
was allowable under the old policy because issue had
not been submitted to him
Court of Appeals Reverses
 Question of whether the 6 game presumption was a
new policy or an explanation of the prior policy was a
factual finding beyond review
 Applicability of Rice decision was a question of
contract interpretation solely for the arbitrator
 Absent stipulation of the parties, arbitrator decides
what questions are before him/her
Tom Brady
 Patriots were accused of using deflated footballs in AFC
Championship game
 League appointed Jeff Pash (NFL GC) and Ted Wells (NFL
atty) to investigate
 Commissioner imposed four-game suspension based on
investigation’s conclusion that Brady was “generally
aware” of deflation
 After arbitration, Commissioner affirmed four-game
suspension based on finding that Brady had been
involved in the deflation and had refused to cooperate in
the investigation. Analogized to PED use.
Award Originally Overturned
 Court found that Brady lacked knowledge that he
could be suspended for deflating balls because of a
policy regarding equipment violations that stated
that fines would be imposed for first offenses
 Court rejected PED analogy as inapt
 Court found lack of fundamental fairness because
Commissioner refused to require GC Pash to testify
or to require original investigative notes to be
produced to union
Award Reinstated on Appeal
 Conduct detrimental rule was enough to put Brady
on notice of possible suspension. Equipment policy
did not expressly apply to deflated balls, so it was up
to arbitrator to decide whether it applied.
 PED analogy was not outside arbitrator’s authority –
both involve cheating to gain a competitive
advantage.
 CBA doesn’t require any discovery or specific witness
testimony. Those are discretionary rulings.
The Law Reaffirmed
 “We are therefore not authorized to review the
arbitrator’s decision on the merits despite allegations
that the decision rests on factual errors or
misinterprets the parties’ agreement.”
 “[O]ur task is simply to ensure that the arbitrator was
‘even arguably construing or applying the contract’”
and “did not ignore the plain language of the
contract.”
The Law Reaffirmed
 “If an arbitrator acts within the scope of [his/her]
authority, the remedy for the dissatisfied party ‘is not
judicial intervention,’ but ‘for the parties to draft
their agreement to reflect the scope of power they
would like their arbitrator to exercise.’”
 “We do not consider whether the punishment
imposed was the most appropriate.”
 When parties do not stipulate to the issues, “[t]he
scope of the arbitrator’s authority . . . [is] a question
delegated to the arbitrator.”
Are Arbitrators Required to Follow Other Awards?
 In both cases, trial court judges said arbitrators erred
in not following prior arbitration awards
 Theory: CBAs are more than just the written
agreement, they include past practices and implied
agreements (the “law of the shop”)
 Reversed. Here’s the law: “Even failure to ‘follow
arbitral precedent’ is no ‘reason to vacate an
award.’”
Limiting Arbitral Discretion
 Broad language such as “Carrier shall not discipline
without just and sufficient cause” gives arbitrators
almost unlimited discretion
 If you want someone to be (or not to be) fired for
engaging in certain conduct, say so
 If you want to limit the arbitrator’s authority, agree
on questions or create a procedural board to do so