- Joined
- Dec 22, 2005
- Messages
- 16,343
- Reaction score
- 7,623
From one person in over his head to another, I agree with you FWIW.If your in " way over your head " them I'm drowning, and agree that Berman's language regarding Goodell " dispensing his own brand of industrial justice " is directly related to the Harvest decision, which, as you noted gives great deference to arbitrators decisions on collectively bargained agreements. I do think however that Goodell did just that I'm terms of dispensing his own kind of "industrial justice" as his actions in the Brady case were unprecedented and fundamentally dishonest. and would argue that he effectively ignored the CBA by not acting as a fair arbitor, distorting the facts of the case, handing down punishment inconistent with prior sanctions for the same violation, and ignoring rules of notice that are laws of shop in collectively bargained agreements.
I'm clearly not a lawyer so my apologies if this isn't written in the proper legalese but yes I do think Berman had it right and should have been upheld. Then again I do agree that the Garvey ruling is outrageous in and of itself and undermines what I see as the need need for any arbitration award to be based in fundamental fairness as dictated by the facts of the case.
The "own brand of industrial justice" finding seems to rely on demonstrating that the Arbiter did not act in accord with "the essence" of the bargaining agreement. To my non-Lawyer way of thinking that means the Arbiter has to act honestly, since the CBA relies on mutual truthfulness at its core.
Unfortunately, Garvey sets the precedent that the facts can be wrong and the Arbiter can even be misinterpreting the Agreement (in this case the "Notice" provision), but that the Arbiter's decision will still stand. That's what Chin and Parker found.
So, it seems to me, that Olson would need to show that Goodell and the League were acting disingenuously and therefore in violation of the essence of the agreement. I know we all believe that they were, but making that stick in open Court will not be easy. But, if anyone can do it, it's Ted Olson.