It’s Tuesday afternoon, August 29, 2017 and Zeke Elliott, the NFLPA and an army of high-powered lawyers are likely still deep within the bowels of 345 Park Avenue in Midtown Manhattan, there in the midst of appearing before arbitrator Harold Henderson in prosecution of the appeal of the disciplinary decision handed down by NFL Commissioner Roger Goodell eighteen days ago. What can you, the football fan, the man on the street, the average Joe who wants to know, expect to come out of this?
To appreciate fully what is happening as you read this, and what is likely to issue from it, we have to establish the timeline and understand the basics of the process.
Before we go any further with that, we must know what the powers of the commissioner are. The NFL has a constitution, with bylaws, and we all know from our civics and government classes that a constitution is the organic law of that which it purports to govern. It delegates powers and only those powers it enumerates and delegates exist.
The NFL Constitution and Bylaws provide:
Commissioner
7.3
The powers and duties of the Commissioner shall be such as are described in Article VIII hereof.
* * *
Disciplinary Powers of Commissioner
8.13
(A) Whenever the Commissioner, after notice and hearing, decides that an owner, shareholder, partner or holder of an interest in a member club, or any player, coach, officer, director, or employee thereof, or an officer, employee or official of the League has either violated the Constitution and Bylaws of the League or has been or is guilty of conduct detrimental to the welfare of the League or professional football, then the commissioner shall have complete authority to:
(1) Suspend and/or fine such person in an amount not in excess of five hundred thousand dollars ($500,000), . . .
What Has Transpired Thus Far
Commissioner Goodell initiated an investigation of Zeke over a year ago pursuant to the terms of the latest NFL Personal Conduct Policy (NFL PCP) and Article 46 of the last NFL Collective Bargaining Agreement (CBA). On August 11, 2017, pursuant to his authority under the NFL Constitution and Bylaws and in accordance with the terms of the NFL PCP and Article 46 of the CBA, he authorized a six game suspension of Zeke, finding that credible evidence existed that Zeke violated the NFL PCP. Zeke and the NFLPA appealed that discipline and the matter is being heard today by the designee chosen by Commissioner Goodell, Harold Henderson.
Article 46, Section 1 of the CBA provides:
Notwithstanding anything stated in Article 43 (Ed Note: Art. 43 governs all non-injury grievances except where some other process is set forth in the CBA specific to a more particular non-injury conduct or issue):
a). All disputes involving a fine or suspension imposed upon a player for conduct on the playing field (other than as described in Subsection (b) below) or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA.
The NFL PCP provides:
With regard to violations of the Personal Conduct Policy that involve:
(i) criminal assault or battery (felony); (ii) domestic violence, dating violence, child abuse and other forms of family violence; or (iii) sexual assault involving physical force or committed against someone incapable of giving consent, a first offense will subject the offender to a baseline suspension without pay of six games, with consideration given to any aggravating or mitigating factors . . .
The NFL PCP and the CBA permit a disciplined player to appeal the discipline imposed by the commissioner. The previous NFL PCP provided:
Following the imposition of discipline, the affected person will have the right to appeal the decision. (For players, the disciplinary decision must be appealed within three (3) business days.) Persons filing an appeal shall be entitled to a prompt hearing pursuant to Article 46 of the Collective Bargaining Agreement and the NFL Constitution and Bylaws, to be conducted by the Commissioner or his designee. In cases involving players, the NFLPA will be entitled to participate in the hearing.
The current NFL PCP provides:
Appeals of any disciplinary decision will be processed pursuant to Article 46 of the CBA.
The Article 46, Sec. 2 of the CBA provides:
Hearings:
(a) Hearing Officers. For appeals under Section 1(a) above, the Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers. For appeals under Section 1(b) above, the parties shall, on an annual basis, jointly select two (2) or more designees to serve as hearing officers. The salary and reasonable expenses for the designees’ services shall be shared equally by the NFL and the NFLPA. Notwithstanding the foregoing, the Commissioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion.
The NFL Appeal Process
Notwithstanding the failure of Congress to define arbitration or enumerate the factors that must be considered to determine when something is an arbitration, and notwithstanding that Article 46 makes reference to the term “hearing officer” for purposes of disciplinary appeals, the appellate process for disciplinary actions taken for on-field and off-field conduct specified under the NFL CBA has been found by the courts to be an arbitration. See, e.g., NFL Mgmt. Council v. NFL Players Ass’n, 820 F.3d 527 (2nd Cir. 2016) (the Deflategate appeal from the federal district court order overturning NFL arbitration findings - on-field conduct), and NFL Players Ass’n v. NFL, 88 F. Supp. 3d 1084 (D. Minn. 2015) (the Adrian Peterson appeal from the NFL arbitration to the United States District Court for the District of Minnesota - off-field conduct).
Arbitration is one of a number of alternative dispute resolution processes, which are, broadly, methods of solving an issue or dispute without resort to the immediate and direct filing of a lawsuit. Accordingly, arbitration is favored by courts generally, if for no other reason than that it tends to lessen the work load of the courts themselves. To be subject to arbitration, one must consent to or contract for it (which was of course done in this case by virtue of the CBA), and the existence of a valid and enforceable arbitration clause in the CBA therefore precludes the possibility of a direct appeal to court from the commissioner’s disciplinary action, insofar as such an action would be subject to a stay of court proceedings and a motion to compel arbitration.
Zeke and the NFLPA will have the opportunity to introduce evidence and present testimony at the arbitration, but the arbitrator’s authority with regard to any remedial action he may take is limited. For example, courts have been upheld in vacating arbitration awards where the arbitrator was found to be enforcing his own sense of justice outside of the bounds of the established CBA. NFL Players Ass’n, citing Associated Elec. Coop., Inc. v. Int’l Bhd. of Elec. Workers, Local No.53, 751 F.3d 898, 901 (8th Cir. 2014).
News reports since the issuance of the suspension earlier this month have speculated heavily that the primary thrust of the NFLPA challenge to the discipline will focus on the credibility of the complaining witness, Tiffany Thompson. While this will undoubtedly be an important component of their attack, it is my hope that they do not limit their presentation to this single facet of the matter.
The arbitrator will not be hearing this case to determine whether the opinions and conclusions of the investigators, and the commissioner’s decision, that Zeke violated the policy was correct or incorrect. He will instead be seeking to determine whether or not the commissioner acted outside the scope of his authority under the NFL Constitution and Bylaws and the CBA; whether the investigative and/or hearing process utilized by the NFL was fair or unfair; and whether or not Zeke was afforded due process.
To the extent that Ms. Thompson’s credibility has any bearing here at all, it would go to the issue of whether the NFL followed its own policies and procedures when it disciplined Zeke as it did. This is so because the NFL PCP, at page 5, states:
In cases where a player is not charged with a crime, or is charged but not convicted, he may still be found to have violated the Policy if the credible evidence establishes that he engaged in conduct prohibited by this Personal Conduct Policy.
Accordingly, attacking Ms. Thompson’s credibility at this point, while ineffective to prove that Zeke did not violate the policy, can assist his defense by helping to prove that the NFL did not follow its own policy, since the evidence it relied upon to impose discipline was not “credible evidence.” The distinction is fine, but critical.
What happens next, when Harold Henderson affirms the commissioner?
If, or more likely when, the arbitration (appeal) decision upholds the commissioner, Zeke and the NFLPA may appeal to the appropriate federal district court.
Professional football is within the stream of interstate commerce and arbitrable issues arising therefrom are subject to the Federal Arbitration Act. 9 U.S.C. § 10 provides:
(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration -
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
Thus, Zeke and the NFLPA must show on appeal that one of the permissible grounds for vacating the arbitration decision exist. However, a court reviewing an arbitrator’s decision is required to give great deference to the decision of the arbitrator. While it is doing this, it must also enforce limits on judicial scrutiny, remaining ever mindful of the limited scope of the judicial review process, while ensuring fairness in the underlying process itself. In other words, due process must still have been afforded by the Article 46 procedures giving rise to this fiasco.
It's a hard row to hoe.
