By Tim VanCisin

On Friday, the National Football League Players Association (“NFLPA”) filed an Emergency Motion for a Temporary Restraining Order or Preliminary Injunction on behalf of Ezekiel Elliott – an NFL running back – to prevent the NFL from enforcing a six-game suspension it imposed on Elliott for violating its domestic violence policy. NFL Commissioner Roger Goodell executed the six-game suspension after NFL investigators found that Elliott harmed his accuser, Tiffany Thompson.

The NFLPA lawyers filed the brief in the U.S. District Court for the Eastern District of Texas. Interestingly, the brief was filed before Arbitrator Harold Henderson released his findings regarding Elliott’s appeal of the suspension.[1] This was likely done for two reasons. First, it is highly unlikely that Henderson will vacate or reduce the suspension. The Collective Bargaining Agreement (“CBA”) between the NFL and NFLPA allows the NFL to appoint the arbitrator in all disciplinary matters. Thus, Goodell chose Henderson – a longtime NFL executive – to arbitrate a decision handed down by Goodell, based on a standard created by the NFL. Although the local district attorney who investigated Elliott declined to bring charges, the NFL does not need to meet the same standards to impose discipline. When the U.S. Court of Appeals for the Second Circuit reversed District Judge Richard Berman’s “Deflategate” ruling and affirmed Goodell’s four game suspension of Tom Brady in Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n,[2] it established important precedent that under the current CBA, the NFL may create policies that require far less proof than courts to discipline players. Thus, Elliott and his lawyers have no reason to believe that Henderson will find the NFL violated its own policies in imposing the ruling, so they have no reason to believe he will alter the discipline, and hence no reason to wait for him to release his findings.

Second, Elliott’s lawyers likely did not want to end up in the U.S. District Court for the Southern District of New York, the NFL’s preferred litigation grounds. In the Deflategate saga, Goodell not only imposed the discipline on Brady, but he was also the arbitrator to whom Brady appealed. It was well expected that Goodell would uphold the discipline he imposed, and that Brady would then file suit in a federal court. Many expected Brady to file in the U.S. District Court for the District of Minnesota, where Judge David Doty sits. Doty has a history and reputation for siding with employees and players rather than management. However, the NFL anticipated this maneuver by Brady’s team, and moments after Goodell released his findings as the arbitrator, the NFL Management Council filed suit against the NFLPA and Brady in the Southern District of New York, asking the court to uphold its ruling. Anticipating that the NFL would use that same strategy, the NFLPA filed suit before Henderson could release his decision. While the judges in the Eastern District of Texas are generally thought of as siding with management in labor and employment matters, the NFLPA chose it to avoid the Southern District of New York, which views the Deflategate ruling as binding precedent. In Texas, that ruling is merely persuasive.

Regardless of the court, the NFLPA faces an uphill battle in convincing the court to overrule an arbitration award that was decided under the interpretation of its CBA. The Supreme Court has held that an arbitration award may not be overturned when “[the decision] draws its essence from the collective bargaining agreement”[3] and is not made in “manifest disregard of the law.”[4] As the CBA between the NFL and the NFLPA allows Goodell to impose discipline for conduct detrimental to public confidence in the league, and allows him or his representative (in this case Henderson) to arbitrate challenges to this discipline, it will not be hard for any court to find that the arbitrator acted within the scope of his authority in upholding Elliott’s six-game ban.

Elliott’s main argument is that the league’s appeals process was “fundamentally unfair,” and did not satisfy federal labor law’s minimal due process requirements. Specifically, Elliott argues that he was denied the fundamental right of facing one’s accuser when Arbitrator Henderson declined to grant the NFLPA’s request to have Tiffany Thompson testify at his hearing. But the Supreme Court stated in Major League Baseball Players Ass’n v. Garvey that “[w]hen 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.”[5] His best hope is that the court finds the arbitrator’s denying Elliott from “confront[ing] his accuser and to have her credibility assessed against his” was critical, and led to a fundamentally unfair hearing. Even still, based on the Supreme Court’s high standard, it is unlikely that Elliott and the NFLPA will succeed.

This case serves as a reminder that neither unions or employers may “attempt[] to achieve in arbitration what it failed to win in negotiations.”[6] Here, the NFL was able to choose any arbitrator it liked under the CBA it negotiated with the NFLPA. To avoid one party being able to select a potentially biased arbitrator, parties should ensure that CBAs provide a pool of arbitrators where each party is permitted to strike one until a final arbitrator is agreed on by both sides.

[1] His decision is expected any minute (as of September 5, 2017).

[2] 820 F.3d 527 (2d Cir. 2016).

[3] United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960).

[4] Wilko v. Swan, 346 U.S. 427, 436-37 (1953), overruled on other grounds by Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989).

[5] 532 U.S. 504, 509 (2001) (quoting United Paperworks Intern. Union v. Misco, Inc., 484 U.S. 29, 39 (1987)).

[6] Meyer Products, FMCS No. 95-06610, 1995 BNA LA Supp. 115630 (Fullmer, 1995).