Arbitrator Lise Gelenter (NAA Member) comments on a recent decision by the US Court of Appeals for the Eighth Circuit on another case involving the NFL “arbitration” process.

The August 4th decision by the Eighth Circuit Court of Appeals in NFL Players Ass’n v. NFL, echoes the Second Circuit’s Tom Brady decision concerning the courts’ obligation not to meddle with arbitration awards except under unusual circumstances.  ( commented on the Brady litigation here and here.)  The dispute involved a disciplinary action taken against Adrian Peterson based on his own admission regarding physical abuse of his child.   The Eighth Circuit reversed the district court decision and instead confirmed what it called an arbitrator’s award that had upheld the Commissioner’s suspension because of “conduct detrimental” to football.

Unlike the Brady situation, in this case the Commissioner did not serve as the hearing officer or what the court called an “arbitrator.”  Rather, as contemplated by the CBA, the Commissioner designated the hearing officer/arbitrator — Harold Henderson, who had served previously for 16 years as the NFL’s VP for labor relations and is currently the president of the Player Care Association, an NFL-related charity.

In response to the union’s argument that Henderson was “evidently partial,” the appeals court said:

“Allowing the Commissioner or the Commissioner’s designee to hear challenges to the Commissioner’s decisions may present an actual or apparent conflict of interest for the arbitrator. But the parties bargained for this procedure, and the Association consented to it. See CBA art. 46 § 2(a). It was foreseeable that arbitration under the Agreement sometimes would involve challenges to the credibility of testimony from Goodell or other League employees. When parties to a contract elect to resolve disputes through arbitration, a grievant “can ask no more impartiality than inheres in the method they have chosen.” Winfrey v. Simmons Food, Inc., 495 F.3d 549, 551 (8th Cir. 2007) (quotation omitted). The Association’s challenge to Henderson’s service as arbitrator is thus foreclosed by Williams, and a remand is unnecessary. Accord Nat’l Football League Mgmt. Council v. Nat’l Football Players Ass’n, 820 F.3d 527, 548 (2d Cir. 2016).”

The Court essentially said that if the parties bargained for a hearing officer who might not appear to be impartial, then they are stuck with that bargain.  This case clearly involved sophisticated bargaining parties who understood what kind of process they were agreeing to follow in resolving their grievances.  One hopes that the rationale of this case is not applied in non-labor cases, such as consumer cases, in which one party is not only less sophisticated than the other, but has no choice about the terms of the applicable arbitration “agreement.”