DEFLATEGATE UPDATE: WILL HE ARBITRATE?

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What about that penalty? Let’s see the instant replay!

In the wake of NFL Commissioner Roger Goodell’s 4-game suspension of New England Patriots’ quarterback Tom Brady, several questions remain.

To understand the game off the field, let’s consider the man behind Brady’s punishment, and the current state of the (football) union.

Stats and Standings

This past season has been an interesting one for both football and labor arbitration fans.

Earlier this year, we reported that United States District Judge David S. Doty vacated an arbitration award that upheld Commissioner Goodell’s discipline of Minnesota Vikings running back Adrian Peterson.

Doty concluded that Goodell erred in disciplining Peterson in accordance with the NFL’s new policy, where the Commissioner “unequivocally” recognized that the policy was not applicable retroactively, and therefore not applicable to the Peterson matter.

Prior to the vacation of that punishment, Barbara S. Jones, an independent and neutral arbitrator, found in Nat'l Football League, 134 BNA LA 61, that Goodell abused his discretion when he arbitrarily disciplined running back Ray Rice for a second time.

With two recent high profile proceedings, both resulting in a determination that the NFL Commissioner fumbled, at one point or another, in the disciplinary process, where does Roger Goodell currently stand?

Goodell’s Position

The Missouri Supreme Court tackled this question on April 28, 2015, and reviewed the scope of Roger Goodell’s role as Commissioner for the National Football League, specifically in arbitration proceedings.

Todd Hewitt, an equipment manager, was a full-time employee of the St. Louis Rams, a team affiliated with the NFL, from 1978 until his discharge in early 2011.

Hewitt, then 54 years old, filed suit against the Rams, alleging age discrimination in violation of the Missouri Human Rights Act.

Upon reviewing the parties’ arbitration agreement, the Supreme Court of Missouri found the terms designating the commissioner as sole arbitrator unconscionable and unenforceable.

Because Roger Goodell, as commissioner, “is required to arbitrate claims against his employers,” he “is an individual in a position of bias as the arbitrator.”

The state high court concluded that, under the CBA, Goodell “controls virtually every aspect of the arbitration,” from the establishment of rules and procedures, to the final determination. “Those provisions in the arbitration agreement are unconscionable,” it said.

Accordingly, Goodell is precluded from reviewing, and ruling on the decisions of his employer in arbitration. This conclusion aligns with the trend in employing independent and neutral arbitrators to oversee NFL arbitrations, as evidenced in the Rice matter.

Strategy and Tactics

At this point in the game, the finality of Goodell’s discipline determination is questionable as it is subject to review on appeal. Under Article 46 of the CBA, Tom Brady, or the NFL Players Association, may appeal the decision within three days following written notice of discipline.

Additionally, the NFLPA may request, as it did in the Peterson matter, that Goodell recuse himself from hearing the appeal. If this is the case, Goodell must appoint a neutral arbitrator to render a decision, which will constitute the “complete disposition of the dispute.”

With Tom Brady’s agent already announcing the QB’s intent to appeal Commissioner Goodell’s discipline, Brady might not be the only one with a fill-in this season should the matter proceed to arbitration. Stay tuned!