Is the Commissioner an Arbitrator?

The wall-to-wall coverage of the NFL's discipline of Tom Brady sometimes refers to Commissioner Roger Goodell as the "arbitrator." The NFL Players Association has made much of the fact that Goodell had a clear conflict of interest in ruling on Brady's case. The League responds that the Commissioner had the power to rule in the matter under the collective bargaining agreement.

The label "arbitrator" is quite important in any post-award litigation, as we have now in the Deflate-gate contretemps. The Supreme Court in three opinions issued in 1960 (known collectively as the Steelworkers Trilogy) explained a court's very limited role in reviewing an arbitrator's award. There would be no review on the merits. If an arbitrator found certain events to have taken place, a court should not substitute its view of the conclusions to be drawn from the factual evidence. As long as the arbitrator "draws his essence from" the bargaining agreement and demonstrates no "evident partiality," the court's job is to enforce the award, even if it would have reached a different outcome.

Justice William Douglas, writing for the majority, explained the basis for this deference. Congress had stated that the system of dispute resolution the parties had selected deserved respect in court. Labor arbitration comes in all shapes and sizes, but always has some critical elements to it without which it deserves no special treatment in court. First of all, an arbitrator must be the joint appointee of both labor and management. He or she must be neutral. After all, the arbitrator serves as the "joint alter ego" of the parties, reaching an outcome in a dispute that is consistent with the parties' mutual intentions as set forth in their bargaining agreement.

To deserve its special role, arbitration requires that the neutral receive evidence, normally done at an informal hearing, and issue an opinion explaining the reasons for the ultimate award either granting or denying the grievance in whole or in part. There are, of course, other ways to resolve disputes that arise in the workplace. Parties need not adopt arbitration, except in the federal public sector where Congress has mandated the creation of such procedures. In non-unionized settings, management typically has the unilateral power to make workplace decisions, unless they violate prevailing law, such as statutes that prohibit racial discrimination.

Under the NFL-NFLPA collective bargaining agreement, the parties have created a number of different arbitration systems. They have "system" arbitration and "impartial" arbitration, each with jurisdiction to hear particular classes of cases. Some arbitrators handle "non-injury" grievances and others address "injury" grievances. The Brady case falls under Article 46, Commissioner Discipline, alleging "conduct detrimental to the integrity of, or public confidence in, the g ame of professional football." The Commissioner imposes the discipline and then the Players Association may appeal the discipline to the Commissioner, who has the right to designate a person to serve as the "hearing officer" for the appeal or may hear the appeal himself.

When the Commissioner acts under Article 46, he is not serving as an arbitrator. Much like a management official in a non-union setting, the Commissioner has the power to make a decision on the penalty, but, if brought to court, that ultimate decision does not enjoy the benefits of the Steelworkers Trilogy. As a general matter, management has the right to make decisions concerning "conduct detrimental to the integrity of" the business, but courts will not enforce decisions that are "arbitrary and capricious." This standard is generally referred to as the law of voluntary associations and would cover decisions made by the Commissioner of the National Football League.

In the Brady case, if the parties are not able to settle the matter, the Federal District Court in Manhattan will have to determine whether the Commissioner's decision was "arbitrary and capricious," not whether it "drew its essence from the collective bargaining agreement." A management decision might be considered arbitrary if it penalizes conduct that had never been subject to an announced rule in the past. Likewise, conduct which had been penalized in the past at a certain level of discipline, say a fine, cannot later be sanctioned with a suspension. Similarly, conduct which constitutes a minor offense during a game cannot receive the same penalty as criminal misbehavior, for example, an off-duty felony. There may be other ways to demonstrate that a Commissioner's decision is arbitrary.

Of course, it would be best for all concerned if the parties are able to resolve this matter privately. That was the case months ago and remains the best method of dispute resolution. The problem is that both sides have much invested in this dispute - far more than simply four games of suspension. For the Commissioner, the case involves his power to exercise his rights under the bargaining agreement. For Tom Brady, his legacy as among the greatest quarterbacks in League history is at stake. Ultimately, the court may have to cut the Gordian knot and resolve the case. At least, the judge - bound by precedent and an accurate understanding of the nature of the process -- will be a neutral adjudicator.