Sheilla Dingus
March 21, 2017
Two professional athletes – Dennis Wideman and Tom Brady; two sports – hockey and football; two CBAs; two very different suspensions; two appeals – all intrinsically linked through one court and opinion. Through a single ruling one player’s suspension was affirmed while another’s was slashed. What happened? Short answer: Deflategate, and Deflategate in reverse.
On January 27, 2016 Calgary Flames defenseman Dennis Wideman sustained a concussion from a legal crosscheck by an opponent. He remained in a crouched position for several seconds after the incident and then began skating toward the Flames bench, signaling to be removed from the game. Just before he exited the ice, he raised his hockey stick in the air and it struck official Don Henderson in the back. Henderson, who had been skating backward toward Wideman fell upon contact, hitting his head on the boards. He too suffered a concussion.
Though no penalty was issued during the game, the NHL imposed a 20-game suspension on Wideman at an in-person supplemental disciplinary hearing for the hit to the official. Rule 40, which governs the physical abuse of officials states:
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Wideman was suspended in accordance with §40.2. If a player is suspended for more than six games, the CBA allows him to appeal the discipline to the commissioner, which Wideman and the Players’ Association did. Bettman upheld the suspension contending that Wideman’s conduct was “deliberate” and that he “knew or should have known” that his actions “could be expected to cause injury.” Wideman, who was in a concussed state at the time maintained that the contact with Henderson was accidental, so he requested arbitration as provided for in the NHL/NHLPA CBA.
Unlike disciplinary grievance provisions in the NFL/NFLPA CBA in which the commissioner is able to preside as arbitrator over his own disciplinary decision, the NHL provides for a neutral arbitrator agreed upon by both the NHL and Players Association. As such Wideman appealed his case to James Oldham.
Oldham reviewed the basis of Bettman’s decision along with the video evidence. He agreed with the commissioner’s basic conclusion:
— that Wideman’s on-ice behavior resulting in Linesman Henderson’s concussion constituted physical abuse of an official calling for Supplemental Discipline for on-ice conduct — was correct. Also, the Commissioner’s use of League Rule 40 (“Physical Abuse of Officials”) as a framework for analysis was appropriate.
But after examining all the evidence, including additional witness testimony, he disagreed with the commissioner’s ultimate decision.
The Commissioner’s conclusion, however, that Wideman’s behavior constituted intentional action within the meaning of Rule 40.2, automatically triggering a penalty of not less than twenty games, is not endorsed in this appeal because, in my opinion, that conclusion is not substantially supported by the totality of the evidence presented to me at the NDA hearing. In my judgment, the proper penalty should have been that specified in League Rule 40.3. Taking into account Wideman’s eleven years of discipline-free performance as a professional hockey player, there is no occasion to go beyond the ten game minimum specified in Rule 40.3. Dennis Wideman’s penalty, therefore, should be reduced from twenty games to ten games, and it is so ordered.
Commissioner Bettman wasn’t happy that the neutral arbitrator reached a different conclusion than he, cutting Wideman’s suspension in half. In fact, Oldham was fired as the Hockey League’s Neutral Arbitrator and the NHL filed a lawsuit seeking vacatur in the United States District Court in the Southern Circuit of New York (SDNY); the same court in which Judge Richard Berman presided over Tom Brady’s Deflategate appeal, vacating NFL Commissioner Roger Goodell’s arbitration decision.
Judge Alison J. Nathan heard Wideman’s case, but unlike Berman, she confirmed the arbitrator’s award.
And this is where the narratives collide.
Like Wideman, Brady’s suspension was based on the commissioner’s opinion of circumstantial evidence. Brady was accused of intentionally deflating footballs below league minimum PSI (or being generally aware of such a scheme). Wideman was accused of intentionally striking and injuring an official. Both men appealed their suspensions in accordance with their governing CBAs.
Despite NFLPA objections, NFL Commissioner Roger Goodell presided as arbitrator in Brady’s appeal. New evidence was introduced by way of scientific explanation of the Ideal Gas Law from neutral scientists; Brady of his own accord testified of his innocence under oath. Goodell leveled new charges of un-cooperation against Brady and confirmed his own disciplinary decision.
Neutral Arbitrator James Oldham presided over Dennis Wideman’s appeal. As in the Brady case, new evidence was presented by way of additional witness testimony. After a review of evidence and testimony, Oldham concluded that Wideman’s contact with and injury of the official was not deliberate and cut the suspension to 10 games based on §40.3.
Brady and the NFLPA filed suit against the NFL in SDNY because he found the arbitration was fundamentally unfair, and as such procedurally incorrect. In a reverse scenario the NHL filed suit against Wideman and the NHLPA, also claiming the arbitration was procedurally incorrect in that Oldham “failed to adhere to the standard of review laid out in the CBA and thus exceeded his authority under that agreement.”
To be clear, arbitration cannot be challenged (at least successfully) because a party disagrees with an arbitrator’s decision, so procedural defects were the only viable method in which either of these arbitral awards could be challenged. Judge Nathan’s final Memorandum and Order makes a fascinating read in this regard, as she steps through the reasoning process outlined by Oldham as to how he navigated what appeared to be a contradiction in the CBA and how he weighed evidence to arrive at his decision, but in the end, it probably didn’t matter a great deal. Outside of rare occasions, such as the Berman ruling in the Brady case, arbitrator deference is typically bestowed by the courts. In order to affirm an arbitration award in a labor dispute a judge must simply determine whether the arbitrator’s authority and decision-making is at least somehow grounded in the collective bargaining agreement between labor and management. In order to vacate, a judge must determine that the process was deeply and procedurally flawed.
In Brady’s case, the NFL appealed Berman’s District Court decision to the Second Circuit Court of Appeals where in a 2/1 split (Judge Katzmann wrote an opinion of dissent), Judges Chin and Parker concluded that the NFLPA got what it bargained for and remanded the case back to Berman with an order to reverse his prior ruling.
Last week MMQB’s Kalyn Kaler interviewed Judge Berman and asked him if he thought “justice was served in the courtroom for Tom Brady?” He responded, “No. I would decide the way I decided in the same way today. I mean, I couldn’t actually, because the court of appeals has now had a precedent, but take that away, and I would go the same way.”
While Wideman’s arbitration was conducted by a Neutral and justice was served on his behalf, neither Judges Berman nor Katzmann feel that Brady received a fair arbitration, but now, because of the precedent set by the Second Circuit Appeals Court, district court judges no longer have the option of seeking fundamental fairness when clearly biased arbitrations are rooted in collective bargaining. The Brady precedent was cited five times in Judge Nathan’s order.
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A court’s “review of an arbitration award under the LMRA is … ‘very limited.”‘ Nat ‘l Football League Mgmt. Council v. Nat’! Football League Players Ass ‘n, 820 F.3d 527, 536 (2d Cir. 2016). . . Courts are “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.” . . . Instead, courts may “inquire only … whether the arbitrator acted within the scope of his authority as defined by the collective bargaining agreement.” . . .”As long as the award ‘draws its essence from the collective bargaining agreement,”‘ it must be confirmed.
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Turning to the substance of the Arbitrator’s opinion, the Court finds that the Arbitrator, having reasonably interpreted the standard of review under the CBA, at least “arguably … act[ ed] within the scope of his authority” in applying that standard to the record before him. . . see also Nat’! Football League Mgmt. Council . . . (holding that, if an arbitrator’s interpretation of a contract is “at least ‘barely colorable, “‘the award must be confirmed).
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In reviewing an arbitral decision, courts are “not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rests on factual errors.” Nat ‘l Football League Mgmt. Council, 820 F.3d at 536.
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In assessing the Arbitrator’s decision in this case, the Court is mindful of its “very limited” role. Nat ‘l Football League Mgmt. Council, 820 F.3d at 536.
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Whether or not this Court might reach the same decision as the Arbitrator were it presented with the same record is not relevant. Because it is at least arguable that the arbitrator applied the standard of review bargained for in the CBA, the award must be confirmed; See Nat ‘l Football League Mgmt. Council, 820 F.3d at 536 (“If the arbitrator acts within the scope of his authority, the remedy for a 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.”‘)
So where does this leave the recipient of an award in which an apparently biased arbitrator appears to violate principles of fundamental fairness? Does any recourse remain? I asked noted sports law and appellate attorney Daniel Wallach for his view.
“The loss in the Second Circuit by the NHL does not forever close the courthouse door on a legal challenge to an arbitration award,” he said, but it does demonstrate “how difficult such cases are.” He noted that “sometimes bad facts make bad law,” which creates ”problematic precedent.”
With the Wideman arbitration conducted by a neutral arbitrator and challenged by the league rather than player and players association, Wallach didn’t seem to feel this was the best example. Deflategate was a different story. “The outcome with Brady could very well have been different before another three judge panel,” he said, while at the same time emphasizing, that successfully challenging a labor arbitration award in court has “always been a uphill climb for players.”
Wallach pointed out that “every case has to stand on its own facts and the facts that were presented by the National Hockey League were not strong enough or persuasive enough to change the award.”
He contrasted this with Deflategate. “Brady came a lot closer to the type of procedurally-based challenge that could be the exception to the general rule. It was, after all, a two-to-one decision (with a favorable result below), so I think there will eventually be another case that is decided in the players’ favor,” Wallach said. He reasoned that “[t]here wouldn’t be exceptions to the general rule of judicial deference to labor arbitration awards unless the exceptions came into play once in a while. But this case, unfortunately, wasn’t the outlier, although perhaps it should have been give the procedural irregularities that occurred.” Wallach stressed that Brady’s loss in Deflategate “doesn’t forever seal the courthouse door for future challengers,” but that it serves as “a painful reminder” of just “how much of an uphill climb this is.”
If you recall in the Deflategate case, Judge Chin seemed troubled by the destruction of Brady’s cell phone. Wallach felt this was a factor in the Second Circuit decision, saying without “the destruction of his cell phone, you have a much cleaner case of fundamental unfairness without any other associated baggage.” Given new league policies regarding the demand for access to social media accounts, as well as text and email records, and the threats of indefinite suspension to the “Al Jazeera Four,” for refusing the same during the last offseason, one could reasonably believe this will not be a factor in the next challenge.
Wallach said the rules which govern deference to an arbitration award are in place for a reason but that some cases may prove exceptions to that general rule, “especially in the area of evident partiality (or arbitrator bias), which unfortunately was given short shrift in Deflategate.”
“I believe there will be more litigation in the years ahead, as long as Roger Goodell continues to invoke his disciplinary authority while attempting to function as prosecutor, arbitrator, appellate judge, and disciplinarian all in the same case,” Wallach stated. “Goodell’s juggling act as judge, jury and executioner is problematic on so many levels . The Players Association will continue to stand up to that. I believe the right case will eventually come along, but you’d need to go beyond the merits of the decision. If you’re simply looking for a second opinion or disagreeing with reasoning of the award, you’re probably going to fail,” Wallach added, “but, if you can hang your hat on some kind of substantial procedural defect, something that goes to the heart of due process and fundamental fairness; those kind of cases, and I include Brady within that, you’d have a much higher likelihood of success.”
“I mean Brady almost prevailed,” Wallach reminded, “He won in the lower court and got a dissent in the Second Circuit, so it’s not as if Brady was an abject failure, and I think a different three-judge panel might have yielded a different outcome.”
“I believe the right vehicle for challenging a labor arbitration award would center more on fundamental fairness, evident partiality in particular, rather than the underlying merits of the arbitration award,” Wallach told me, pointing out, “of course there are limits to Goodell’s broad disciplinary authority under federal arbitration law,” adding that the recent courtroom decisions may have emboldened him further.”
Will Goodell’s confidence in the courtroom opinions cause him to make a fatal error? Can a positive outcome occur in the Second Circuit I wondered given Judge Berman’s recent comments.
In light of the appellate court’s ruling in Deflategate, I asked Wallach whether a Southern District of New York judge would ever be willing to go as far as Judge Berman and overturn a sports labor arbitration. Wallach answered “yes, under the right circumstances,” but noted in retrospect that Judge Berman may have left his pro-Brady ruling vulnerable to reversal by not addressing the issue of “evident partiality” (which had been raised by Brady and the NFLPA in their papers). “Judging from his comments on The MMQB, Berman believed Goodell’s irreconcilable conflicts of interest was tantamount to evident partiality, and if it was such a strong ground for vacating (as Berman’s comments suggest), it does make one wonder why Berman kept his powder dry on that issue. Given how factually-intensive such an inquiry would be, it might have had a better chance of holding up on appeal than the other issues based on ‘prior notice’.” It seems Berman left it open for a future date in the event the case was remanded, but unfortunately he never got a second chance to weigh in.
“The Second Circuit analysis of evident partiality in Deflategate is very short and sweet,” Wallach said, pointing out that perhaps a better record could have been developed by Judge Berman. “In retrospect,” Wallach stated, “a better course of action by Berman would have been to use ‘evident partiality’ to bolster his decision, but having not done that, he gave the Second Circuit a blank canvas on which to paint,” leaving the Second Circuit opinion as “the final word on the deal.”
I asked Wallach if a better outcome might be found in a different circuit. “The availability of a particular forum depends on the identity of the challenger and other factors, such as the location of the team,” he said. “The Minnesota federal judge dismissed the [Deflategate] case promptly because that forum did not have any nexus to the dispute, and, in a footnote, criticized the union for ‘forum-shopping.’” That footnote “limits a player’s forum choices going forward,” Wallach reasoned. “When it comes to the NFL and the other major sports leagues,” Wallach pointed out, “the Southern District of New York is an obvious, if unpalatable, forum choice, but a player or union could still seek to overturn an arbitration award in another judicial district.”
“[They have] the potential to appeal to the district where the arbitration took place or where the Players Association is located in the District of Columbia, or where the team is based” Wallach said, “but the days of forum shopping in Minnesota have all but run out.” He agreed that the Second Circuit precedent is “certainly problematic” for the players and Union, but did opine that other circuits could rule differently.
“A player on the Dallas Cowboys could challenge his discipline and bring his challenge in the Northern District of Texas,” Wallach stated as an example. He clarified, however, that “the standard of review is so deferential that the league would still enjoy a significant advantage no matter where the case was litigated, before adding, “I wonder if the outcome in Deflategate might have been different if the Players Association tried to file suit in the District of Massachusetts (and, ultimately, before the First Circuit? We might be talking then about a completely different result,” he suggested. An intriguing thought.
Since Deflategate, two court decisions have now taken place; the first being the Adrian Peterson case in Minnesota where a district judge ruled favorably but in a near identical ruling to the Second Circuit, the Eighth Circuit decided that vacatur of the arbitration award would not take place. In the reverse scenario of Dennis Wideman, the Second Circuit did not overturn an arbitration award that unlike in Brady and Peterson, was favorable to the player.
Another NFL disciplinary case, that of the PED suspension of Lane Johnson, is now playing out in the Northern District of Ohio, but it is atypical in that Johnson is suing both the League and the Union, and a ruling has not yet been made as to whether Ohio is the correct venue. Most experts that have weighed in on the Johnson case feel that it isn’t strong enough to overcome arbitral deference precedents. If Johnson doesn’t prevail, it appears that the case with the right “fact column,” as Wallach termed it, will have to present itself.
In retrospect it seems obvious now why other sports league unions did not submit amicus briefs in the Brady case. Their CBAs provide for neutral arbitration. The Wideman ruling of the Neutral Arbitrator worked as it should have. Unless the near perfect arbitration defect is presented in the courts by the NFLPA, and the scenarios line up as Wallach described, the players and union may have to live with Second Circuit precedent for a while. Call Deflategate “the gift that keeps on giving.” At the next bargaining opportunity the NFLPA should take heed instead of paying lip service (and legal fees) and not leave to the courts what needs to be accomplished through CBA negotiation.
For additional reading: Impact: Peterson, Brady, and the Future of the CBA
Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.
