Marc J. Goldstein Arbitrator & Mediator NYC
July 02, 2016

Patriot Games

Arbitration lawyers follow Tom Brady’s case as they would track a Patriots game while in dutiful attendance at a painfully mis-scheduled wedding of an in-law’s niece on an otherwise perfect October Sunday. At obsessively frequent intervals, they check the Internet for score updates and game highlights. You are reading this, so how can you disagree? Arbitration Commentaries is your

You should know by now that the most popular Ted in Boston is not a Williams, not a Kennedy, but an Olson, as in Theodore C. Olson, the ex-Solicitor General now enlisted by the Brady team for the en banc initiative to rescue victory from the nearly-clenched jaws of defeat in the US Second Circuit Court of Appeals.  (Dear Non-US Readers, en banc is a discretionary reconsideration process in the federal courts of appeals whereby the full contingent of that judicial circuit’s appellate judges might hear anew a case decided by a three-judge panel. Brady is a practitioner of American professional football. Williams is a venerated practitioner of American professional baseball, who toiled for the Boston team from 1939 to 1960 with two wartime interludes as a fighter pilot).

This post is your first quarter update on the en banc contest.

The Brady en banc brief sounds two main themes. Your commentator thinks one could be a winner, the other maybe not. The first theme (the “maybe not”) is that the arbitration agreement didn’t give the NFL Commissioner power — when he acts in an arbitral capacity to hear an appeal of a disciplinary action taken by the League against a player —  to uphold the discipline based on new factual findings resulting from evidence introduced in the appeal hearing, i.e. findings of fact that were not made by the employer at the time the discipline was imposed. The Brady Brief seizes on language in the Second Circuit majority’s decision that nothing in Article 46 of the NFL Labor Agreement “purports to limit” the Commissioner’s authority in this respect. And, says the Brady Brief, this is wrong because arbitral authority must be based on an affirmative delegation in the arbitration agreement, not an inference of arbitral power derived from silence (the absence of a limitation) in the arbitration agreement, as the latter is the type of approach to arbitral power that the Supreme Court’s majority condemned in Stolt-Nielsen.   I say “maybe not” to this position because the Second Circuit majority, in the very next sentence, said that the agreement does expressly authorize the Commissioner to hold a hearing and to receive evidence, and that it is a reasonable construction of that express authorization that the result of the evidentiary hearing could be an outcome based on the evidence presented at the hearing that was not available to be considered at the time of the initial disciplinary decision.

The second theme is that for an arbitrator’s decision to “draw its essence” from the contract, the arbitrator’s award must reflect that the arbitrator actually has given consideration to portions of the contract that arguably bear upon the outcome. Here the Brady Brief perhaps gives #12 more hope, because the argument concerns the arbitrator’s decision process rather than the outcome. Process is entitled to less deference than outcome. At issue is whether the Labor Agreement’s provisions concerning discipline for “equipment/uniform violations” should have been explicitly considered by the NFL Commissioner in his award. The Second Circuit majority doesn’t address the Commissioner’s failure to reference those portions of the Labor Agreement in the award. Its approach instead is to show that, if the Commissioner had analyzed those provisions, he readily could have construed them (and perhaps did) as permitting suspension for four NFL regular season games as a sanction for a first offense.

But whether such a construction of the Labor Agreement’s provisions concerning “equipment/uniform violations” could have been given by the Commissioner seems besides the point: the question is whether the Commissioner’s decision fails to “draw its essence” from the contract if the Commissioner bypassed in the award an analytical step that was arguably necessary to an outward appearance of thorough consideration of the contract’s bearing upon the Commissioner’s range of disciplinary discretion in regard to the infraction in question. (Who said “Justice must not only be done but must be seen to be done“? Williams? Kennedy? Brady? It was a favorite expression of the late great Pierre Lalive, who was always more of a tennis guy than a football guy.) Here there is some vulnerability in the Second Circuit panel’s reasoning.

Another fourth quarter rally for the Patriots is not out of the question.  Stay tuned.


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