David Evans, an attorney with Boston law firm Murphy and King and an arbitrator on the panels of organizations that include the Court of Arbitration for Sport, the CPR Panel of Distinguished Neutrals, the American Arbitration Association and the International Centre for Dispute Resolution, recently submitted an opinion piece to the NFLPA about what he believes to be the core concept at stake in this case. Evans, a member of the board of directors of the AAA, and the NFLPA gave permission for his work to be reprinted here.
For many decades, arbitration has fairly and efficiently resolved disputes and reduced the burden on our overworked judiciary. The recent decision by a divided Second Circuit panel upholding New England Patriots’ Quarterback Tom Brady’s suspension threatens to undermine the public’s perception of arbitration, and for good reason. Arbitrators are an extension of the justice system and operate under the same basic principles as our courts. Parties must have confidence in the fairness of arbitration, but Commissioner Goodell’s handling of Mr. Brady’s case violates longstanding fundamental tenets of a fair arbitration.I am an arbitrator and have presided over hundreds of cases of all descriptions. When an arbitrator agrees to hear a labor case, he or she is obligated to conduct a fundamentally fair proceeding, including equal treatment of the parties, fair notice of punishment, and rational decision-making.The arbitration system for player discipline in professional football is similar to dispute resolution provisions in several labor-management areas in which a non-neutral (here, the Commissioner) serves as an arbitrator. But by agreeing to a non-neutral arbitrator for disciplinary appeals, the bargaining party – here, the NFL Players Association – does not forfeit all of the procedural protections applied in labor arbitrations. Agreeing to the Commissioner’s authority to hear disciplinary appeals is not the same thing as agreeing to allow the Commissioner to run amok.This Commissioner has been overruled by former federal judges, a current US District Court judge and even former NFL Commissioner Paul Tagliabue for his erratic and arbitrary decisions. In these cases, the Commissioner’s unique brand of industrial due process, was flatly rejected as essentially an exercise in changing the rules along the way. Parties to an arbitration agreement expect and deserve a process that promotes the fair adjudication of disputes.The Commissioner’s actions were biased from the outset. The one-day appeal hearing was an awkward circus. No arbitrator, partial or impartial, should have allowed the “independent investigator’s” law firm to represent the NFL’s interests at the hearing and deny Brady access to potentially exonerating information. No arbitrator should have allowed the NFL’s General Counsel to avoid cross-examination about his role in preparing the very report on which the Commissioner based his punishment. No arbitrator acting in good faith should have issued a final award analogizing Brady’s “offense” to steroid use and without even mentioning or discussing the schedule of collectively bargained fines arguably applicable to such offenses. And certainly no reasonable arbitrator should have conjured up new grounds to support his own decision after he had imposed discipline on other discredited grounds. These are the hallmarks of a fundamentally unfair arbitration and represent one of the rare exceptions where the courts can and should intervene.Arbitration is not perfect, but the procedures Commissioner Goodell and the NFL administered in the Brady’s case are outliers and the case sets a dangerous precedent. The Second Circuit should not allow the public’s perception of the arbitration process to be sullied by a Commissioner impersonating an arbitrator.