Again this year, a famous athlete put the spotlight on the process of arbitration. Earlier this month, Tom Brady succeeded in convincing a federal judge to vacate the arbitration award against Brady. (The four-game “deflategate” suspension — a pdf of the decision is available through the link.)
The decision vacating the award is 40 pages (and a good read), but here’s the summary:
The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated. The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four-game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes.
In its analysis, the court relied on labor law arbitration doctrines, including that the arbitrator has to adhere to the “law of the shop” and the award must “draw its essence” from the collective bargaining agreement, as well as Section 10(a)(3) of the Federal Arbitration Act (refusal to hear evidence). However, the court curiously “did not reach” one of Brady’s key arguments: that the arbitrator, NFL Commissioner Goodell, displayed evident partiality within the meaning of Section 10(a)(2) of the Federal Arbitration Act.
Yet the court’s decision reads like an 40-page indictment of Goodell’s ability to serve as an impartial decision-maker. The judge found: Brady had no notice that his conduct (general awareness of others’ misconduct) could be subject to that type of punishment; Goodell’s choice to equate Brady’s behavior to using steroids was basically irrational; and “Commissioner Goodell’s denial of Brady’s motion to compel the testimony of Mr. Pash [the co-lead investigator] was fundamentally unfair” as was Goodell’s refusal to force the NFL to turn over notes from the investigation. The decision also notes that before Goodell served as arbitrator, he had publicly praised the investigative report at issue.
So – why not just say NFL Commissioner Goodell was evidently partial in his handling of Brady’s arbitration? (This is the same question I had about the Adrian Peterson ruling in February, which refused to call the arbitrator biased.) Could it be that judges are overly concerned with setting a precedent that would essentially forbid the NFL from ever using its own Commissioner as an arbitrator again? Could it be that judges view the NFL Commissioner as a demi-god who cannot be criticized? Are the judges worried about being banned from games? Are we all so polite that we just cannot stomach calling another human being biased? (Though, the Missouri courts had the guts to do so this year in a similar situation.) Or is there not enough good case law on the issue of partiality to provide judges the cover they need to issue such a ruling?
I’d love to hear your thoughts. Email me or send them to @Kramerliz.