Yes. The union gave the league authority for discipline with the understanding the process would be fair and honest, the league violated that trust and their lies to the courts demonstrate that. If their process had been fair they would not have had to lie to the courts about it.
[Apologies for the length of this Post]
I begin by admitting that I am in way over my head here and ask someone with knowledge of Appellate Law and who is familiar with Supreme Court decisions to correct me where I need correction. If someone is just going to say that “the Garvey ruling sucks,” well, that’s not helpful since I already agree with that.
In the Case of the Major League Baseball Players Association vs. Garvey (532 US 504 2001), the Supreme Court of the US, regarding a Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit (No. 00-1201 Decided May 14, 2001), overturned CA9’s ruling that the District Court remand the Case to arbitration with instructions to enter an award for Garvey. SCOTUS held that “Judicial review of a laborarbitration decision pursuant to a collective-bargaining agreement is very limited.
Courts are not authorized to review an arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement [my emphasis]…
Only when the arbitrator effectively dispenses his own brand of industrial justice [my emphasis] may his decision be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 597.”
Three observations before I move on to the Steelworkers Case:
One. Yes, that means that Goodell, as Arbiter, can uphold a decision that is based on bad science because, in Garvey, the Supreme Court found that the facts are more or less irrelevant in
“a laborarbitration decision pursuant to a collective bargaining agreement” as long as the Arbiter's ruling "
draws its essence" from the relevant CBA (see Steelworkers below).
Two. Yes, it means that the debate over Notice could be construed as not definitive because the Arbiter’s decision is allowed to “
[misinterpret] the parties agreement” and still be regarded as valid. That’s almost unfathomable to me and leaves me, as it did another poster, “gobsmacked,” but it is what SCOTUS held. CA2 found that the language of the CBA is so broad as to allow for multiple interpretations of what “notice” has been provided in the CBA.
Three. I’m amazed that more people haven’t pointed out that Judge Berman chose the key words in his finding based on these two cases; “
his own brand of industrial justice” has roots that are over 50 years old for SCOTUS. I’m sure it’s been discussed by the experts, but I’m afraid I’ve missed it. Most people have treated it like a clever turn of phrase by Judge Richard M. Berman!
In the case to which Judge Berman was making reference and to which SCOTUS refers above (United Steelworkers of America v. Enterprise Wheel & Car Corp, 363 US 593, Certiorari to the United States Court of Appeals for the Fourth Circuit, Decided June 20, 1960) SCOTUS held (363 US 597) that “When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem.….Nevertheless,
an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice [my emphasis]…
his award is legitimate only so long as it draws its essence from the collective bargaining agreement [my emphasis].
When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. [my emphasis]”
So, I imagine that Olson might argue that Goodell as Arbiter has relied on and indeed been complicit in a pattern of deception that
“manifest an infidelity to…[his] obligation” and that therefore his ruling fails to “…[draw} its essence from the collective bargaining agreement.”
That’s a very serious charge to make and make stick in open Court, but the Ted Olson who took no prisoners in arguing Bush v. Gore is the kind of guy to do so.
So, if this should ever get to SCOTUS, will the Court find that Garvey is definitive and “factual errors or [misinterpretations]” should be effectively disregarded or will the Court find that Judge Berman was correct in determining that Commissioner Goodell had indeed dispensed “his own brand of industrial justice” by his actions and thus demonstrated “infidelity to [his] obligation?”
I have no idea how that will play out, but I do know two things:
1) It will be very helpful if CA8 finds for Peterson and there are two conflicting rulings from two different Circuits. That would increase the likelihood of SCOTUS taking the Case (yes, that means I don’t think that the NFLPA has much of a chance of winning an en banc proceeding in CA2).
2) It will also be helpful, should this case ever get to SCOTUS, if the case is not heard until after HRC has a chance to appoint another liberal justice sympathetic to Labor to the Court.
