Are these arguable points about Goodell's "arbitrator" status?

I'm not sure if there were brought up in the brief; I don't think they were. But, two major points stand out to me as particularly egregious. Now, whether there is a legal right for this is what I'm asking about, since often times things that are really shady are also legal. Anyway, my point here is this: can Kessler argue that while Goodell appointed himself as an arbitrator, even beyond his clear , conflict-of-interest stained bias in determining the facts and outcome of the case, did he also act in ways that are unethical and inconsistent with normal arbitration protocols?

1. Can an arbitrator be a settlement negotiator at the same time?

One thing that stands out to me is that Greg Hardy's suspension was reduced from ten to four games, and you know what else? He is still deciding whether or not he wants to take the NFL to federal court. In other words, Hardy was given a favorable arbitrator's ruling without needing to cut a deal or agree in any to forego future legal action. That is because his arbitrator, Harold Henderson, judged the case on its own merits independent of Hardy's contrition, willingness to admit guilt, or agreement to "play ball."

It seems blatantly unfair that Goodell has seemingly used his arbitrator status as a bargaining chip. That is, Goodell the Arbitrator was certainly, somehow, very tuned in to the thinking of Goodell the Negotiator. It sure seemed that any idea of a "settlement" between Brady and the league was essentially the same thing as the ultimate arbitration ruling. Whereas almost every player has received at least a reduction in penalty, Goodell the Arbitrator held firm with a four game suspension, when Goodell the Negotiator, according to reports, was unable to come to an agreement with Brady. He was willing to reduce the suspension if Brady were to admit guilt, apologize, and agree not to pursue further legal action, but since Brady did not agree to those terms, Goodell the Negotiator and Goodell the Arbitrator suddenly came together with the same idea to hold firm. How exactly can you be an independent arbitrator, weighing only the merits of the case with one hand, when you are actively negotiating a settlement and considering factors outside of guilt/innocence (public relations, costs, etc.) and using the arbitration result as a bargaining chip with your other hand?

2. Is an arbitrator legally allowed to act in a way that is self-serving, including behavior that is contrived to injure one of the parties after the ruling?

There are two ways that "Arbitrator" Goodell blatantly abused his independent status and violated any type of good faith agreement:

A. He purposely released his decision moments before Goodell the Upholder of Integrity's legal team filed a legal motion in Manhattan. In doing so, Goodell brazenly proved that he was using his powers as an arbitrator to give a legal advantage to the NFL and a disadvantage to the NFLPA, while still acting in official capacity as arbitrator. Goodell notified only one side about the timing of his decision and purposely delayed it until the NFL had a tactical advantage, proving that he was partial towards one side.

B. Goodell further abused his position of arbitrator as a way to preview the NFLPA's legal arguments and then change the NFL's case preemptively. Because one of the main arguments from the NFLPA was that Brady could not be suspended for "general awareness", Goodell the Arbitrator was able to correct the mistake of Goodell the Upholder of Integrity, building a stronger case against Brady in the process. Goodell the Arbitrator conveniently was able to come to a new conclusion, despite having no new evidence (besides the fake outrage about a sim card being thrown away), which is that Brady was now actively involved in planning, inducing, and orchestrating a massive cheating scheme. Can an arbitrator's ruling really be designed to strengthen the legal case for one side?

3. Although the courts are hesitant to override arbitrators decisions, I do wonder the type of precedent would be set if appealing parties are better off avoiding the arbitrator altogether.

In Brady's case, he went in good faith to present his case to Goodell, whose role in the appeals hearing was to decide on the merits of the case. Goodell instead abused his power and used his position to gain strategic advantages for himself, including using his "unbiased decision" as a bargaining chip, timing the verdict to align with his self-serving interests that injure the other party, and strengthening his legal case by getting a free look of the obstacles he will need to overcome in court.

Something tells me this is much more toxic to the court systems and that something needs to be done to prevent abuse. There is no way this is what the CBA agreed to when they allowed Goodell to declare himself as an independent arbitrator. There must be some standards of objectivity and fairness that should be upheld should one appoint him or herself to serve as an arbitrator.

Ice_Ice_Brady said:

1. Can an arbitrator be a settlement negotiator at the same time?

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I would say yes, since the case is about the arbitration award.

Ice_Ice_Brady said:

2. Is an arbitrator legally allowed to act in a way that is self-serving, including behavior that is contrived to injure one of the parties after the ruling?

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This is where the in-breeding of Goodell as decision maker and Goodell as arbitrator is a joke.
I can understand Goodell being the arbitrator of disputes within the league he is commissioner of,but to be arbitrator of disputes that not only he made the decision, but also where the NFLPA questions his authority, judgment and partiality is very suspect.

Ice_Ice_Brady said:

3. Although the courts are hesitant to override arbitrators decisions, I do wonder the type of precedent would be set if appealing parties are better off avoiding the arbitrator altogether.

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There was no way to avoid the arbitrator, because Brady had the right to appeal.
If there ever was a case where an arbitration process was abused, this is certainly it.

Often the arbitration deals incorporate the American Arbitration Association Rules. Neutrality issues would be addressed through a fairly straightforward process:

R-18. Disqualification of Arbitrator

(a) Any arbitrator shall be impartial and independent and shall perform his or her duties with diligence and in good faith, and shall be subject to disqualification for:

i. partiality or lack of independence,

ii. inability or refusal to perform his or her duties with diligence and in good faith, and

iii. any grounds for disqualification provided by applicable law.

(b) The parties may agree in writing, however, that arbitrators directly appointed by a party pursuant to Section R-13 shall be non-neutral, in which case such arbitrators need not be impartial or independent and shall not be subject to disqualification for partiality or lack of independence.

(c) Upon objection of a party to the continued service of an arbitrator, or on its own initiative, the AAA shall determine whether the arbitrator should be disqualified under the grounds set out above, and shall inform the parties of its decision, which decision shall be conclusive.

The CBA does not incorporate those rules. But even the AAA rules would accept a non-neutral arbitrator if appointed by agreement. The reality is you can agree away rights to process and courts and even the applicable law if the law does not preclude the agreements. If Rog is not barred from settlement discussions by the CBA, then the parties are following the agreement and courts will not intervene. The law does not require demonstrable neutrality, and loves the fact people have agreed to resolve problems without court interaction. That is what these federal laws regarding arbitration stand for in the end.

The arguments here turn more on what was agreed to under the CBA and whether the arbitrator was so biased that there really was no practical review/arbitration process.

I sent this message to Michael McCann this morning, and he wrote back:

Thanks for the note and getting in touch. I appreciate you sharing your thoughtful post.

Quick thoughts:

1. Can an arbitrator be a settlement negotiator at the same time?

Yes if the collective bargaining agreement permits it. The CBA between the NFL and NFLPA appears to allow this. That said, the law of shop requires there be fairness and consistency in the arbitration process. So in short, because this relationship is allowed in principle doesn't automatically mean its lawful as it has been used in practice in the Brady matter. Judge Berman, if he makes a ruling, would need to decide that.

2. Is an arbitrator legally allowed to act in a way that is self-serving, including behavior that is contrived to injure one of the parties after the ruling?

Not if it violates the law of shop, but the NFL would dispute the characterization of the question. Again, Judge Berman would need to weigh the competing arguments.

3. Although the courts are hesitant to override arbitrators decisions, I do wonder the type of precedent would be set if appealing parties are better off avoiding the arbitrator altogether.

Because there is an internal appeals process specified under Article 46 of the CBA, Brady and the NFLPA had no choice but to use it. If he didn't and instead went directly to court, a judge would have dismissed the lawsuit as "not yet ripe." Parties are obligated to exhaust their internal remedies before seeking intervention by a court. It will be interesting to see whether the NFLPA can negotiate a better system of arbitrating appeals of player suspensions in the next CBA. The current system seems designed to cause controversy.

Hope this helps. Best, Mike

The Missouri State Supreme Court stated, in absolutely no uncertain terms, the following:



A. Designation of NFL Commissioner as Arbitrator is Unconscionable

Based on the facts of the present case, the terms in the contract designating the commissioner, an employee of the team owners, as the sole arbitrator with unfettered discretion to establish the rules for arbitration are unconscionable and, therefore, unenforceable .... The constitution and bylaws also provide unequivocally that the commissioner is employed by the league; i.e., the team owners .... In effect, then, the commissioner is required to arbitrate claims against his employers .... the contract appoints the commissioner as not only the arbitrator but as the person who controls virtually every aspect of the arbitration from establishing the rules and procedures to making the final decision. Those provisions in the arbitration agreement are unconscionable. Id

MassPats38 said:

Often the arbitration deals incorporate the American Arbitration Association Rules. Neutrality issues would be addressed through a fairly straightforward process:

R-18. Disqualification of Arbitrator

(a) Any arbitrator shall be impartial and independent and shall perform his or her duties with diligence and in good faith, and shall be subject to disqualification for:

i. partiality or lack of independence,

ii. inability or refusal to perform his or her duties with diligence and in good faith, and

iii. any grounds for disqualification provided by applicable law.

(b) The parties may agree in writing, however, that arbitrators directly appointed by a party pursuant to Section R-13 shall be non-neutral, in which case such arbitrators need not be impartial or independent and shall not be subject to disqualification for partiality or lack of independence.

(c) Upon objection of a party to the continued service of an arbitrator, or on its own initiative, the AAA shall determine whether the arbitrator should be disqualified under the grounds set out above, and shall inform the parties of its decision, which decision shall be conclusive.

The CBA does not incorporate those rules. But even the AAA rules would accept a non-neutral arbitrator if appointed by agreement. The reality is you can agree away rights to process and courts and even the applicable law if the law does not preclude the agreements. If Rog is not barred from settlement discussions by the CBA, then the parties are following the agreement and courts will not intervene. The law does not require demonstrable neutrality, and loves the fact people have agreed to resolve problems without court interaction. That is what these federal laws regarding arbitration stand for in the end.

The arguments here turn more on what was agreed to under the CBA and whether the arbitrator was so biased that there really was no practical review/arbitration process.

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This is really good stuff...thanks. It's pretty much the umbrella rules that I was interested in finding.

Ice_Ice_Brady said:

This is really good stuff...thanks. It's pretty much the umbrella rules that I was interested in finding.

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Though I'd be very surprised if the CBA incorporates the AAA rules, especially how slanted toward the NFL the NFL pushed the terms of the deal to be.

It would seem to me (but then, that doesn't make it law) that the NFL and the NFLPA can agree to allow the commissioner to both rule on cases and appeals. However, as the statement above describes, he must act in "good faith". It would seem to me lying in his appeal ruling would be a violation of good faith.

MagicMarker said:

It would seem to me (but then, that doesn't make it law) that the NFL and the NFLPA can agree to allow the commissioner to both rule on cases and appeals. However, as the statement above describes, he must act in "good faith". It would seem to me lying in his appeal ruling would be a violation of good faith.

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Well, you're not Roger Goodell.