TommyD4207
Experienced Starter w/First Big Contract
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I think Garvey is going to be VERY hard for Kessler to overcome.
Although Wallach is a lawyer and I'm not, I have read the SC decision and it is pretty stark.
The case of Garvey that led the appellate court to overturn was not just one where the arbitrator refused to credit the later testimony of the former owner of the baseball team when it contradicted earlier testimony. He refused to credit it after having chaired a panel that decided that the earlier testimony was not credible. It was that that the appellate court described as "inexplicable" and "bordering on the irrational" ('in the court’s view, the arbitrator’s refusal to credit Smith’s letter was “inexplicable” and “border[ed] on the irrational,” because a panel of arbitrators, chaired by the arbitrator involved here, had previously concluded that the owners’ prior testimony was false.')
The Supreme Court didn't take issue with that. What it wrote is:
Judicial review of a labor-arbitration decision pursuant to such an agreement is very limited. 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. Paperworkers v. Misco, Inc.,484 U.S. 29, 36 (1987). We recently reiterated that if an “ ‘arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,’ the fact that ‘a court is convinced he committed serious error does not suffice to overturn his decision.’ ” Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62 (2000) (quoting Misco, supra, at 38). It is only when the arbitrator strays from interpretation and application of the agreement and effectively “dispense his own brand of industrial justice” that his decision may be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator’s “improvident, even silly, factfinding” does not provide a basis for a reviewing court to refuse to enforce the award. Misco, 484 U.S., at 39.
That is amazingly -- outrageously -- restrictive.
You can say all you want about ****dell's flagrant unfairness and bias -- all the leaks, all the nonsense in the Wells report, the awfulness of not letting Brady see and challenge testimony, and so on -- but, so long as there is no evidence that he was pocketing money from one side to come up with a ruling in their interests ("dishonesty" doesn't just mean being a mendacious weasel) it looks like SCOTUS would uphold him.
Don't get me wrong. I hope that Berman finds a way round this. But my head says it will be very, very hard.
Dishonesty has been alleged, however. Very clearly. Several times.