In the Supreme Court of The United States

Transcription

1 Docket No In the Supreme Court of The United States AVON BARKSDALE, OMAR LITTLE, AND STRINGER BELL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, v. PETITIONER, NATIONAL BASKETBALL ASSOCIATION, RESPONDENT. ON A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE RESPONDENT TEAM NUMBER 18

2 QUESTIONS PRESENTED FOR REVIEW I. Whether the Court of Appeals for the Eighth Circuit properly enforced the arbitration award given in Avon Barksdale s disciplinary decision. II. Whether the Court of Appeals for the Eighth Circuit properly found that the NBA s lockout of its players is exempted from antitrust liability under the non-statutory labor exemption (NSLE). i

3 TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE CASE... 1 I. ARBITRATION AWARD... 1 II. NBA LOCKOUT... 3 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 I. COMMISSIONER'S BURRELL S ARBITRATION AWARD MUST BE ENFORCED... 5 A. Commissioner Burrell Acted Within His Authority Under the CBA When He Applied the Conduct Detrimental Provision to Suspend Barksdale for His Misconduct B. The Commissioner's Denial Of NBA General Counsel s Testimony Provides No Basis For The Refusal To Enforce The Award II. THE LOCKOUT IS EXEMPTED FROM ANTITRUST SCRUTINY UNDER THE SHERMAN ACT BY THE NON-STATUTORY LABOR EXEMPTION A. The Nonstatutory Labor Exemption Applies To The Case At Hand B. A Collective Bargaining Relationship Still Exists C. Public Policy Requires That Labor Law, Not Antitrust Law, Governs The Dispute CONCLUSION ii

4 TABLE OF AUTHORITIES CASES Abu Dhabi Inv. Auth. v. Citigroup Inc., No. 12 Civ. 283 (GBD), 2013 WL (S.D.N.Y. Mar. 4, 2013) aff'd, 557 F. App'x 66 (2d Cir. 2014) Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691 (2d Cir. 1978)... 6 Bacardi Corp. v. Congreso de Uniones Industriales de Puerto Rico, 692 F.2d 210 (1st Cir.1982) Barksdale v. NBA No , slip op. (8th Cir. 2017)... passim Barksdale v. NBA, No. 11-CV-1215, slip op. (D. Tul. Oct. 25, 2016)... passim Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981)... 6, 9 Bell Aerospace Co. Div. of Textron v. Local 516, 500 F.2d 921 (2d Cir. 1974) Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198 (1956) Brady v. National Football League, 779 F. Supp. 2d 992 (D. Minn. 2011) Brown v. Pro Football, 518 U.S. 231 (1996)... passim Butler Armco Indep. Union v. Armco, Inc., 701 F.2d 253 (3d Cir. 1983) Carpenters 46 N. Cal. Ctys. Conference Bd. v. Zcon Builders, 96 F.3d 410 (9th Cir. 1996) Connecticut Light & Power Co. v. Local 420, Int'l Bhd. of Elec. Workers, AFL- CIO, 718 F.2d 14 (2d Cir. 1983) Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616 (1975)... 17, 18 Davis v. Chevy Chase Fin. Ltd., 667 F.2d 160 (D.C. Cir. 1981)... 6 Graphic Arts, etc. v. Haddon Craftsmen, Inc., 489 F.Supp (M.D.Pa.1979); H.A. Artists & Assoc., Inc. v. Actors Equity Ass n, 451 U.S. 704 (1981) Hoteles Condado Beach v. Union De Tronquistas Local 901, 763 F.2d 34 (1st Cir.1985) In re Pittsburgh Steelers, 1991 NLRB GCM LEXIS, 1991 WL Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irreovocable Trust, 729 F.3d 99 (2d. Cir. 2013) iii

5 Lippert Tile Co., Inc. v. Int l Union of Bricklayers, 724 F.3d 939 (7th Cir. 2013) Local Union No. 189, Amalgamated Meat Cutters & Butcher Workmen v. Jewel Tea, 381 U.S. 676 (1965) Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976), Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504 (2001)... 6 McNeil v. National Football League, 764 F. Supp (D. Minn. 1991) Merryman Excavation, Inc. v. International Union of Operating Engineers, Local 150, 639 F.3d 286 (7th Cir. 2011) Mine Workers v. Pennington, 381 U.S. 657 (1965)... 17, 18 Mut. Fire, Marine & Inland Ins. Co. v. Norad Reinsurance Co., 868 F.2d 52 (3d Cir. 1989)... 6 Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n, 820 F.3d 527 (2d Cir. 2016)... 9, 13 Nat'l Football League Players Ass'n on behalf of Peterson v. Nat'l Football League, 831 F.3d 985 (8th Cir. 2016) Ormsbee Dev. Co. v. Grace, 668 F.2d 1140 (10th Cir. 1982)... 6, 11 Oxford Health Plans LLC v. Sutter, 133 S. Ct (2013)... 9 Powell v. National Football League, 930 F.2d 1293 (8th Cir. 1989)... 19, 21, 22 Quesnel v. Prudential Ins. Co., 66 F.3d 8 (1st Cir. 1995) Radovich v. NFL, 352 U.S. 445 (1957) Riverboat Casino, Inc. v. Local Joint Exec. Bd. of Las Vegas, 578 F.2d 250 (9th Cir. 1978) Saunders v. Amoco Pipeline Co., 927 F.2d 1154 (10th Cir.1991) Siddiqua v. N.Y. State Dep't of Health, 642 F. App'x 68 (2d Cir. 2016) Sobel v. Hertz, Warner & Co., 469 F.2d 1211 (2d Cir. 1972) Teamsters, Local Union 657 v. Stanley Structures, Inc., 735 F.2d 903 (5th Cir.1984) Tempo Shain Corp. v. Bertek. Inc., 120 F.3d 16 (2d Cir. 1997)... 14, 15, 16 United Paperworkers Intern. Union, AFL-CIO v. Misco, Inc, 484 U.S. 29 (1987)... passim United State v. Hutcheson, 312 U.S. 219 (1941) United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593 (1960)... 7, 13 iv

6 W.R. Grace & Co. v. Local Union 759, Int'l Union of the United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757 (1983)... 9 Westinghouse Elevators of Puerto Rico, Inc. v. S.I.U. de Puerto Rico, 583 F.2d 1184 (1st Cir.1978) STATUTES 15 U.S.C U.S.C. 17 (1988) U.S.C. 158(d) U.S.C U.S.C. 185(a) U.S.C. 10(a)(3) OTHER AUTHORITIES Associated Press, Report: NFLPA Recertified as Union, ESPN (Jul. 30, 2011), 21 Gary Graves, DeMaurice Smith: NFLPA Decision to Recertify will be Serious, Sober, USA TODAY (Jul. 21, 2011), 21 v

7 STATEMENT OF THE CASE I. ARBITRATION AWARD Following the conclusion of Game Seven of the Western Conference Finals on May 30, 2016, officials for the National Basketball Association ( NBA ) undertook an investigation into the circumstances surrounding the alleged use of seemingly under-inflated basketballs during the first half of game by the Tune Squad. Barksdale v. NBA, No. 11-CV-1215, slip op. at 6 (D. Tul. Oct. 25, 2016) (hereinafter Barksdale I ). The NBA sought to conduct an independent investigation and retained the services of Maurice Levy and his law firm. Id. The investigation also involved NBA General Counsel Cedric Daniels. Id. Daniels provided edits to the final report. Id. at 10. Daniels did not have any first-hand knowledge of the events at issue... nor did he play a substantive role in the investigation...; his role was limited to facilitating access by Mr. Levy to witnesses. See id. at 3 (quoting NBA Commissioner Ervin Burrell in Def. s Countercl., Ex. 208 at 1). Despite his role, Mr. Daniels was designated co-lead investigator alongside Maurice Levy. Id. The investigations included a review of the player equipment, security footage, text messages, call logs, s, press conferences, League rules and policies, and interviews with no less than sixty-six Tune Squad and NBA personnel. Id. at 2. The findings of the investigation were issued on July 15, 2016 in a report ( Levy Report ). Id. The Levy Report concluded that the Tune Squad personnel participated in violations of the Playing Rules and were involved in a deliberate effort to circumvent the rules." Id. (quoting the Levy Report at 2). The report determined that Tune Squad employees Jim McNulty, who was the Officials Locker Room attendant, and Bunk Moreland, who was a Tune Squad equipment assistant in charge of 1

8 basketballs, participated in a deliberate effort to release air from Tune Squad game balls after the balls were examined by the referee." Id. Rule 2, Section I of the 2014 NBA Official Playing Rules ( Playing Rules ), requires that all basketballs be inflated within a range of 12.5 to 13.5 psi. Id. at 2. Referees for Game Seven of the Western Conference Finals found that all eleven of the Tune Squad game balls were below the acceptable range of inflation, whereas the opposing team s balls, the Monstars, were all inflated within the proper range. Id. Based on this finding and the subsequent investigation, the Report concluded that both McNulty and Moreland violated the Playing Rules. Id. In addition, the Levy Report concluded that "it is more probable than not that [Tune Squad point guard Avon Barksdale] was at least generally aware of the inappropriate activities of McNulty and Moreland involving the release of air from Tune Squad game balls." Id. at 3. The Levy Report determined that "it is unlikely that an equipment assistant and a locker room attendant would deflate game balls without Barksdale's knowledge and approval... [although] there is less direct evidence linking Barksdale to tampering activities than either McNulty or Moreland." Id. Following the Levy Report, William Rawls, NBA Executive Vice President, sent a "disciplinary decision letter to Barksdale ( Letter ), stating that Barksdale s role in the use of under-inflated basketballs by the Tune Squad was a violation of the playing rules developed to promote the fairness of the game. Id. The Letter informed Barksdale that pursuant to the authority of Commissioner Burrell, under Article 46 of the Collective Bargaining Agreement ( CBA ) and the NBA Player Contract, Barksdale was suspended without pay for the first four games of the regular season. Id. 2

9 Per Article 46, a disciplined player is entitled to appeal via an arbitration hearing. Barksdale v. NBA No , slip op. at 21 (8th Cir. 2017) (hereinafter Barksdale II ). Barksdale, via the NBA Players Association ( NBPA ), appealed the four- game suspension and moved to compel the testimony of Cedric Daniels at the arbitral hearing due to his role in preparing the Levy Report. Barksdale I at 3. Commissioner Burrell denied the motion to compel the testimony on the grounds that Article 46 of our CBA does not address the permitted scope of witness testimony at appeals hearings thus it is within the reasonable discretion of the hearing officer to determine the scope of the presentations and, where appropriate, to compel the testimony of any witnesses whose testimony is necessary for a hearing to be fair." See id. (quoting Def. s Countercl, Ex. 208 at 1). The Commissioner conducted the arbitration appeal hearing on July 25, 2016 and published a twenty- page Award and Financial Decision ( Award ). Id. at 3. Commissioner Burrell concluded that "(1) Mr. Barksdale participated in a scheme to tamper with the game balls after they had been approved by the game officials, and (2) he willfully obstructed the investigation by, among other things, affirmatively arranging for destruction of his cellphone knowing that it contained potentially relevant information that had been requested by the investigators." Id. The Commissioner determined that such conduct indisputably constitutes conduct detrimental to the integrity of, and public confidence in, the game of professional basketball. Id. (emphasis added). Based on such determination, Commissioner Burrell affirmed the suspension of Barksdale for four games without pay pursuant to the authority granted to him under Article 46 1(a) of the CBA. Id. at 9. II. NBA LOCKOUT 3

10 Avon Barksdale, Omar Little, and Stringer Bell (collectively, The Barksdale Plaintiffs ) are three professional basketball players who play for the NBA. Barksdale I at 3. The NBA is a multiemployer bargaining unit that organizes professional basketball games between thirty separately owned teams. Id. at 4. The NBA s rules and policies are organized in the Collective Bargaining Agreement ( CBA ). At 11:59 p.m. on October 11, 2016, the most recent version of the CBA was due to expire after the NBA exercised its option to opt out of the final two years of the agreement. Id. Prior to this date, the Barksdale Plaintiffs, and their union, the NBPA, attempted to negotiate a new CBA. Id. The players wanted to renegotiate the personal conduct policy of the CBA, which had enabled Barksdale s suspension. Id. Based on polls taken by the NBPA, substantial majority of the players voted to end the collective bargaining status of the NBPA, if the NBPA leadership thought it was in the best interests of its players to do so. Id. A mere eight hours before the CBA expiration deadline, the NBPA disclaimed any interest in representing the players in further negotiations. Id. The NBPA announced it was to be organized as a professional association rather than as a union. Id. In response, the NBA filed an unfair labor practice claim with the National Labor Relations Board ( NLRB ). With only eight hours to make a decision, the NBA instituted a lockout effective October 12, Id. SUMMARY OF THE ARGUMENT The Court of Appeals for the Eighth Circuit properly applied the deferential standard to NBA Commissioner Burrell s arbitration award given in Avon Barksdale s disciplinary 4

11 decision. The award and Commissioner Burrell's authority drew its essence from a CBA previously negotiated by the NBPA representing Barksdale. Additionally, NBA Commissioner Ervin Burrell s denial of NBA General Counsel Cedric Daniels testimony during arbitration is a procedural ruling that falls under a deferential standard of review. Furthermore, fundamental fairness should not be required for arbitration awards under the Labor Management Relations Act ( LMRA ). Even if fundamental fairness does apply, the arbitration award met this protracted standard. The Court of Appeals for the Eighth Circuit properly held that the lockout was protected from antitrust scrutiny. The nonstatutory labor exemption ( NSLE ) is applicable in unionemployer collective bargaining where the restraint at issue primarily affects only the parties to the collective bargaining relationship; whether the agreement sought to be exempted is the product of a bona fide arm s length negotiation; and whether the dispute concerns a mandatory subject of bargaining. The Supreme Court has never delineated the precise outer limits of the NSLE. Although the NBPA disclaimed its interest hours before the Collective Bargaining Agreement ( CBA ) expired, a collective bargaining arrangement still existed and Petitioner cannot show that it was not a negotiating maneuver. Public policy demands that where a collective bargaining arrangement exists, labor laws give the NLRB primary responsibility for monitoring the collective-bargaining process. ARGUMENT I. COMMISSIONER'S BURRELL S ARBITRATION AWARD MUST BE ENFORCED A. Commissioner Burrell Acted Within His Authority Under the CBA When He Applied the Conduct Detrimental Provision to Suspend Barksdale for His Misconduct. 5

12 When reviewing a collective bargaining agreement, the federal judiciary is governed by section 301 of the LMRA. Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509 (2001). Courts are not authorized to review the arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement. Id. at 1728; see also United Paperworkers Int l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 36, (1987). The judiciary is required to enforce an arbitrator's award so long as it draws its essence from the collective bargaining agreement. See Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, (1981) (finding that an arbitrator s power is derived from and limited by the collective bargaining agreement and his award is legitimate only if it draws its essence from the collective bargaining agreement); see also Misco, 484 U.S. at 30 ( [T]he reviewing court is confined to ascertaining whether the award draws its essence from the contract and does not simply reflect the arbitrator's own notions of industrial justice ). Where the arbitrator is even arguably construing or applying the CBA and acting within the scope of his authority, a reviewing court does not suffice to overturn his decision. Garvey, 532 U.S. at 509. A labor arbitration award must be upheld if the arbitrator offers even a barely colorable justification for the outcome reached and courts may not substitute a judicial resolution of a dispute for an arbitral one. Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691, 704 (2d Cir. 1978); see also Ormsbee Dev. Co. v. Grace, 668 F.2d 1140, 1147 (10th Cir. 1982) ( arbitration awards generally need not delineate reasons or reasoning, at least when the grounds for the award may be gleaned from the record ); Davis v. Chevy Chase Fin. Ltd., 667 F.2d 160, 165 (D.C. Cir. 1981); Mut. Fire, Marine & Inland Ins. Co. v. Norad Reinsurance Co., 868 F.2d 52, 56 (3d Cir. 1989) ( It is not this court's role, however, to sit as the panel did and reexamine the evidence under the guise of determining whether the arbitrators 6

13 exceeded their powers ); see also United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 599 (1960) ( [S]o far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his. ). This deferential standard of the judiciary to the arbitrator governs this Court s review and requires affirmation of the Commissioner s Award determination. Article 46 of the CBA empowers the Commissioner to take disciplinary action against a player whom he "reasonably judge[s]" to have engaged in "conduct detrimental to the integrity of, or public confidence in, the [NBA]." Barksdale II at 21. Commissioner Burrell duly concluded that the deflation efforts of McNulty and Moreland were a violation of the Player Policies. Barksdale I at 2. Further he properly concluded that Barksdale was generally aware of McNulty and Moreland s actions and that Barksdale failed to cooperate fully and candidly with the investigation by refusing to produce any relevant electronic evidence and by destroying his cell phone. Barksdale II at 25. Per Article 46, Commissioner Burrell may reasonably judge what constitutes conduct detrimental to the integrity of, or public confidence in, the NBA. Id. at 21. The Commissioner properly exercised his authority to conclude that (i) Barksdale s efforts to tamper with, and/or general awareness of such efforts to tamper with, game balls in a Western Championship game and (ii) to destroy evidence and fail to cooperate in order to avoid responsibility posed a threat to the integrity of the game, was conduct detrimental to the public confidence in the NBA s on-the court conduct. Finding that such actions constituted conduct detrimental to the integrity of the NBA per Article 46, Commissioner Burrell was entitled to disciplinary action against Barksdale. Id. Further, Petitioner does not dispute that Commissioner Burrell was entitled 7

14 under Article 46 to determine that Barksdale s participation in a scheme to tamper with game balls was conduct detrimental and worthy of a four-game suspension. Id. While Petitioner concedes that Barksdale s conduct may be worth a four-game suspension, Petitioner argues that Commissioner Burrell lacked the authority to institute a fourgame suspension rather than a fine. Id. Petitioner points to the NBA s Discipline for Game Related Misconduct section of the League Policies for Players (the Player Policies ) as putting Barksdale on notice that his conduct would only that result in a fine and not suspension. Id. Petitioner s reliance on the Other Uniform/Equipment Violations is misconstrued since the section does not address tampering with basketballs but rather other equipment and uniform violations such as length of players stockings, and color of wristbands. Id. at 22. Further, acceptance of Petitioner s argument that the section applies to the deflation of basketballs does not provide Petitioner with relief since the disciplinary action for such uniform/equipment violations is contained in the 2014 Schedule of Fines, which provides that the fines listed below are minimums... [and] other forms of discipline, including higher fines and suspension may also be imposed, based on the circumstances of the particular violation." Id. Most importantly, as the Letter made clear, Barksdale was not disciplined pursuant to the Player Polices; rather he was disciplined pursuant to the conduct detrimental to the integrity of the game provision of the CBA. Id. at 25. Thus Commissioner Burrell's authority is derived from Article 46 of the CBA and he is entitled to suspend Barksdale for four games. In a remarkably analogous case applying the same CBA and Player Policies, the Court of Appeals for the Second Circuit held that NFL Commissioner Roger Goodell had the authority to suspend quarterback Tom Brady for four games for participating in a scheme to deflate footballs 8

15 during the 2015 American Football Conference Championship Game. Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n, 820 F.3d 527, 539 (2d Cir. 2016) (hereinafter Deflate Gate ). Tom Brady, similarly to Barksdale, argued that although the NFL Commissioner has the power to suspend pursuant to a conduct detrimental provision found in the NFL s CBA, Brady was entitled to only a fine pursuant to the NFL s Player Polices. Id. The Second Circuit held that the NFL Commissioner had the discretion to discipline Brady pursuant to either the Player Policies or CBA and in choosing to discipline Brady per the CBA, the judiciary may not substitute their judgment of the facts and meaning of the CBA for that of the arbitrator s. Id. at 536. When Barksdale and the NBA agreed to arbitrate their dispute, it is the arbitrator's view of the facts and of the meaning of the contract that they have agreed to accept. Misco, 484 U.S. at Because the authority of arbitrators is a subject of collective bargaining, just as is any other contractual provision, the scope of the arbitrator's authority is itself a question of contract interpretation that the parties have delegated to the arbitrator. W.R. Grace & Co. v. Local Union 759, Int'l Union of the United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 765 (1983). It is undisputed that the authority of Commissioner Burrell to suspend Barksdale for four games draws its essence from the CBA and is found in the language of Article 46. Barksdale II at 21. In choosing to discipline Barksdale pursuant to the CBA, rather than the Player Policies, Burrell weighed the facts and the authority vested in both agreements and made the decision to utilize his authority to discipline per the CBA. Such a decision is free from judicial scrutiny no matter how good, bad or ugly. Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064, 2071 (2013); see also Barrentine 450 U.S. at 745 (stating that the judiciary is 9

16 required to enforce an arbitrator s award so long as it draws its essence from the collective bargaining agreement ). A refusal to enforce the Commissioner s Award is an attempt to improperly substitute a judicial determination for the arbitrator's decision that the parties bargained for in the collectivebargaining agreement. Misco, 484 U.S. at 40 n.10. The judiciary does not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts. Id. at 38. The district court improperly accepted Petitioner s contention that Barksdale lacked notice that a player could be subject to discipline for general awareness of another person s misconduct. Barksdale II at 7. However, as the Second Circuit noted, such a contention misapprehends the record. Id. at 23. Barksdale was not disciplined for general awareness but for his failure to cooperate fully and candidly with the investigation, including by refusing to produce any relevant electronic evidence ( s, texts, etc.). Id at 25. The Letter, notifying Barksdale of the initial disciplinary action, makes clear that Barksdale was disciplined for his conduct, related to the use of under-inflated basketballs by the Tune Squad, which undermined the integrity of the game. Barksdale I at 2. In affirming the award at arbitration, Commissioner Burrell concluded that "(1) Mr. Barksdale participated in a scheme to tamper with the game balls after they had been approved by the game officials, and (2) he willfully obstructed the investigation by, among other things, affirmatively arranging for destruction of his cellphone knowing that it contained potentially relevant information that had been requested by the investigators." Barksdale II at 21. Commissioner Burrell makes clear that Barksdale is not being disciplined for general awareness, but for conduct detrimental to the league. Id. When determining the nature of the 10

17 conduct, Commissioner Burrell reasonably judged] that the previous two activities were such conduct. Commissioner Burrell need not apportion the disciplinary action between the two activities; all he was required to do per the CBA was reasonably judge the facts and circumstances and determine whether Barksdale s conduct was detrimental to the integrity of the game. Id.; see also Ormsbee Dev. Co. 668 F.2d at 1147 ( [A]rbitration awards generally need not delineate reasons or reasoning, at least when the grounds for the award may be gleaned from the record ); Sobel v. Hertz, Warner & Co., 469 F.2d 1211, (2d Cir. 1972); Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198, 203 (1956) ( Arbitrators... need not give their reasons for their results; the record of their proceedings is not as complete as it is in a court trial. ). Article 46 of the CBA does not provide an extensive list of the activities that constitute conduct detrimental and leaves such a determination to the discretion of the commissioner. Barksdale II at 21. Because the authority to discipline Barksdale for conduct Commissioner Burrell reasonably judges to be conduct detrimental is found within CBA, which Barksdale negotiated via the Players Association, Barksdale had sufficient notice and is bound by the CBA. See Saunders v. Amoco Pipeline Co., 927 F.2d 1154, 1156 (10th Cir. 1991) (finding that an individual employee is bound by terms of a collective bargaining agreement); Baker v. Amsted Indus., Inc., 656 F.2d 1245, 1249 (7th Cir. 1981) ( [T]erms and conditions of employment can be arranged only by the majority representative, and the rules written into the collective bargaining agreement become the law of the plant for all employees ); Quesnel v. Prudential Ins. Co., 66 F.3d 8, 11 (1st Cir. 1995) (finding that as a member of the bargaining unit and having received the benefits of the CBA an employee is subject to the terms, conditions, and remedies provided by the CBA); Siddiqua v. N.Y. State Dep't of Health, 642 F. App'x 68, 71 (2d 11

18 Cir. 2016) (ruling that employees are bound to the plain terms of the collective bargaining agreement ). Petitioner similarly argues that absent arbitral precedent, a vacation of the award is required. Barksdale I at 7. However, the courts have generally concluded that arbitrators are not bound by the rationale of earlier decisions and that inconsistency with another award is not enough by itself to justify vacating an award. Conn. Light & Power Co. v. Local 420, Int'l Bhd. of Elec. Workers, AFL-CIO, 718 F.2d 14, 20 (2d Cir. 1983); Westinghouse Elevators of Puerto Rico, Inc. v. S.I.U. de Puerto Rico, 583 F.2d 1184, (1st Cir.1978); see also Butler Armco Indep. Union v. Armco, Inc., 701 F.2d 253, 255 (3d Cir. 1983) ( [O]ne arbitrator's interpretation of a collective bargaining agreement is not binding on a subsequent arbitrator ); see also Riverboat Casino, Inc. v. Local Joint Exec. Bd. of Las Vegas, 578 F.2d 250, 251 (9th Cir. 1978) ( [S]tare decisis would impair the flexibility of the arbitral process contemplated by the parties ). Provided that the inconsistent awards draw their essence from the collective agreement, neither award will be set aside. Conn. Light & Power Co., 718 F.2d at 20 21; Graphic Arts, etc. v. Haddon Craftsmen, Inc., 489 F. Supp (M.D. Pa. 1979); Bacardi Corp. v. Congreso de Uniones Industriales de Puerto Rico, 692 F.2d 210 (1st Cir. 1982). Furthermore, the arbitration case claimed by Petitioner to be precedential is inapposite and does not stand for proposition upon which Petitioner relies. In Peterson, the appellate court found that NFL player Adrian Peterson had sufficient notice and the arbitrator was not required to follow arbitral precedent. Nat'l Football League Players Ass'n on behalf of Peterson v. Nat'l Football League, 831 F.3d 985, (8th Cir. 2016). The Ray Rice case is factually distinct from the present matter in that it addresses an arbitration award for NFL players for violation of a new domestic 12

19 abuse policy and not a conduct detrimental provision within the NFL CBA, thus differentiating itself from the issue in this matter. See Barksdale I at 9. Finding that Barksdale s conduct constituted a violation of Article 46 of the CBA, the Commissioner must use his honest judgment in determining the proper remedy. Misco, 484 U.S. at 38. In using his honest judgment he must find facts and may rely on analogies or other cases as he deems arguably within the scope of his authority under the CBA. Id. Courts have no authority to disagree with his honest judgment in that respect. Id. Nothing in the CBA requires Commissioner Burrell rely on arbitral precedents nor does it prevent the Commissioner from relying on analogies such as the Steroid Policy. Indeed, in Deflate Gate, the Second Circuit affirmed the broad general authority of this CBA as explicitly granting the Commissioner broad discretion in choosing to rely on the league s steroid policy when coming to an honest judgment on the remedy. See Deflate Gate, 820 F.3d at 540 (comparing players who tamper with game balls to steroid users neither violated a right to which [the player] was entitled nor deprived him of notice... it does not follow that he was entitled to advance notice of the analogies the arbitrator might find persuasive in selecting a punishment. ). This Court has recognized that an arbitrator may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. Alexander v. Gardner-Denver Co., 415 U.S. 36, 53 (1974) (quoting Enterprise Wheel, 363 U.S. at 597). It is undisputed that the award drew its essence from the collective bargaining agreement. See Barksdale II at 21 (stating that Barksdale does not dispute that the Commissioner was entitled, under Article 46, to determine that Barksdale s participation in a scheme to tamper with game balls" was "conduct detrimental worthy of a fourgame suspension ). Since the award clearly draws its essence from the collective bargaining 13

20 agreement the Court has no authority to substitute its own judgment. See Misco, 484 U.S. at 38 (explaining that the fact that [the Court is convinced that he committed serious error does not suffice to overturn his decision ). B. The Commissioner's Denial Of NBA General Counsel s Testimony Provides No Basis For The Refusal To Enforce The Award. In deciding what evidence to admit, "[a]n arbitrator need not follow all the niceties observed by the federal courts." Tempo Shain Corp. v. Bertek. Inc., 120 F.3d 16, 20 (2d Cir. 1997) (quoting Bell Aerospace Co. Div. of Textron v. Local 516, 500 F.2d 921, 923 (2d Cir. 1974)). The Commissioner s decision to exclude Cedric Daniels cumulative testimony from the arbitration proceeding does not provide a basis for refusing to enforce the award since arbitrators have substantial discretion to admit or exclude evidence. Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irreovocable Trust, 729 F.3d 99, 107 (2d. Cir. 2013). Arbitrators are "endowed with discretion to admit or reject evidence and determine what materials may be cumulative or irrelevant." Abu Dhabi Inv. Auth. v. Citigroup. Inc., No. 12 Civ. 283 (GBD), 2013 WL , at *8 (S.D.N.Y. Mar. 4, 2013), aff'd, 557 F. App'x 66 (2d Cir. 2014). The LMRA requires, if anything, a deferential standard of review when it comes to collateral attacks on an arbitrator's procedural rulings. This Court has cautioned that when the subject matter of a dispute is arbitrable, as here, procedural questions which grow out of the dispute and bear on its final disposition are to be left to the arbitrator. Misco, 484 U.S. at 40. This deferential stance is logical, since the Commissioner is well positioned to interpret the procedural rules that he is frequently required to apply. A narrow exception to deference under the Federal Arbitration Act ( FAA ) states, the arbitrators were guilty of misconduct... in refusing to hear evidence pertinent and material to 14

21 the controversy." 9 U.S.C. 10(a)(3). Vacatur is warranted in such a circumstance only if "fundamental fairness is violated." Tempo Shain Corp., 120 F.3d at 20. Many circuits, including the Eighth Circuit, have declined to extend this requirement of fundamental fairness to arbitration awards under the LMRA. Compare Lippert Tile Co., Inc. v. Int l Union of Bricklayers, 724 F.3d 939, 948 (7th Cir. 2013) ( [LMRA] review simply does not include a freefloating procedural fairness standard absent a showing that some provision of the CBA was violated. ), with Carpenters 46 N. Cal. Ctys. Conf. Bd. v. Zcon Builders, 96 F.3d 410, 413 (9th Cir. 1996) ( Although deference must be given to an arbitrator s decisions concerning procedural issues, it is generally recognized that the courts may consider a claim that a party to an arbitration has been denied a fundamentally fair hearing. ). This Court should accept the standard set by the Seventh and Eighth Circuits and decline to extend the requirement of fundamental fairness to arbitration awards under the LMRA. Review of awards under section 301 of the LMRA is different from the review of arbitration awards under the FAA, even if they resemble each other in some respects. Merryman Excavation, Inc. v. Int l Union of Operating Engineers, Local 150, 639 F.3d 286, 290 (7th Cir. 2011) ("A failure to comply with a joint committee award is a breach of a federal labor contract subject to section 301 jurisdiction not an FAA action."). Unlike in the FAA, which has an evident partiality standard, "evident partiality" is not inherently built into the section 301 review mechanism. See Merryman, 639 F.3d at Section 301 review does not include a free-floating procedural fairness standard absent a showing that some provision of the CBA was violated. See 29 U.S.C. 185(a) (providing federal subject-matter jurisdiction over "[s]uits for violation of contracts between an employer and a labor organization"). 15

22 However, even if the FAA exception does apply in this case, there is no reasonable interpretation that would find turning down Daniels cumulative testimony to be a denial of fundamental fairness. Federal courts do not superintend arbitration proceedings. Our review is restricted to determining whether the procedure was fundamentally unfair. Teamsters, Local Union 657 v. Stanley Structures, Inc., 735 F.2d 903, 906 (5th Cir.1984). Arbitrators are not required to hear all of the evidence, and are afforded broad discretion in determining what evidence is necessary, as long as they allow each party an adequate opportunity to present its evidence and argument. Tempo Shain, 120 F.3d at 20 (quoting Hoteles Condado Beach v. Union De Tronquistas Local 901, 763 F.2d 34, 39 (1st Cir.1985). Daniels was not the point-man on the investigation of Barksdale, and did not have any first-hand knowledge of the events at issue. Barksdale I at 3. His role in the investigation was not substantive, and was limited to facilitating access to witnesses and documents. Id. Furthermore, the Commissioner made clear that the independence of the Levy Report was not material to his decision, thus limiting any probative value the Daniels testimony may have had. Barksdale II at 27. The CBA does not require the testimony of any witnesses in an Article 46 hearing, and the Commissioner plainly articulated and applied a contractually permissible approach to deciding what testimony he would allow. There is not one relevant issue identified on which Daniels testimony may have made a difference in the decision. Furthermore, in an abundance of caution, the Commissioner offered to revisit his ruling should testimony at the hearing reveal that he was mistaken. Id. at 27. After Petitioner declined to press him on the matter at the hearing, the Commissioner reaffirmed his pre-hearing ruling, again rejected Petitioner s argument on the merits of this procedural issue, and also noted that the issue had been waived. 16

23 II. THE LOCKOUT IS EXEMPTED FROM ANTITRUST SCRUTINY UNDER THE SHERMAN ACT BY THE NON-STATUTORY LABOR EXEMPTION A. The Nonstatutory Labor Exemption Applies To The Case At Hand. Section 1 of the Sherman Act states that every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. 15 U.S.C. 1. This Court has held that professional sports 1 are not categorically exempt from antitrust laws. Radovich v. NFL, 352 U.S. 445, (1957). The statutory exemption to antitrust laws, derived from sections 6 and 20 of the Clayton Act, 15 U.S.C. 17 (1988), 29 U.S.C. 52 (1988), and from the Norris-LaGuardia Act, 29 U.S.C. 101 et seq., have been interpreted by the Court generally to waive antitrust liability for unilateral union conduct such as boycotts and picketing. H.A. Artists & Assoc., Inc. v. Actors Equity Ass n, 451 U.S. 704, (1981); United State v. Hutcheson, 312 U.S. 219, 232 (1941). The statutory labor exemption does not exempt bilateral activity between labor unions and nonlabor parties. Mine Workers v. Pennington, 381 U.S. 657, 662 (1965). However, the Court has recognized that a proper accommodation between the congressional policy favoring collective bargaining under the NLRA and the congressional policy favoring free competition in business markets requires that some union-employer agreements be accorded a limited nonstatutory exemption from antitrust sanctions. Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 622 (1975). This exemption applies to both employers and employees. Brown v. Pro Football, 518 U.S. 231, 237 (1996). The NSLE is an implied repeal of the Sherman Act; it applies where imposing antitrust 1 Baseball is categorically exempt from antitrust laws. Federal Baseball Club v. National League, 259 U.S. 200 (1922). 17

24 liability would conflict with federal labor statutes. Connell, 421 U.S. at 622; Local Union No. 189, Amalgamated Meat Cutters & Butcher Workmen v. Jewel Tea, 381 U.S. 676 (1965); Pennington, 381 U.S. at 665. This Court has noted that [a]s a matter of logic, it would be difficult, if not impossible, to require groups of employers and employees to bargain together, but at the same time to forbid them to make among themselves or with each other any of the competition-restricting agreements potentially necessary to make the process work or its result mutually acceptable. Brown, 518 U.S. at 237. In Jewel Tea, the Court determined that an agreement on a marketing-hours provision between the union and employers fell within protection of the national labor policy and thus was exempt from the Sherman Act. 381 U.S. at The Court weighed the interests involved and concluded that the national labor policy expressed in the NLRA exempted union-employer agreements on when, as well as how long, employees must work from antitrust scrutiny under the Sherman Act. Id. at 691. The Court has applied the NSLE where a professional football players union and football club owners failed to reach an agreement over a wage issue. Brown v. Pro Football, 518 U.S. 231 (1996). In Brown, the Court examined the scope of the exemption and concluded that it applies to an agreement among several employers bargaining together the terms of their last good-faith wage offer. Id. at 238. The Court explained: Labor law itself regulates directly, and considerably, the kind of behavior here at issue -- the postimpasse imposition of a proposed employment term concerning a mandatory subject of bargaining. Both the Board and the courts have held that, after impasse, labor law permits employers unilaterally to implement changes in pre-existing conditions, but only insofar as the new terms meet carefully circumscribed conditions. Id. The Court acknowledged that the new terms must be reasonably comprehended from the employer s preimpasse proposals, and that the collective-bargaining process itself must be free of any unfair labor practice, like the failure to bargain in good faith. Id. at The Court 18

25 also noted that NLRB and court decisions suggest that joint implementation of proposed terms after an impasse is a familiar practice in multiemployer bargaining. Id. at 239. Furthermore, it said that multiemployer bargaining is a well-established, important, and pervasive method of collective bargaining. Id. Since the employer conduct at issue in Brown took place during and immediately after a collective-bargaining negotiation, grew out of and was directly related to the lawful bargaining process, involved a matter about which the parties were required to negotiate collectively, and concerned only the parties to the collective-bargaining relationship, the Court held that the NSLE applied. Id. at 250. B. A Collective Bargaining Relationship Still Exists. The NBA does not contest that the lockout would be a violation of section 1 of the Sherman Act. Barksdale I at 13. However, the NSLE applies and so the lockout is shielded from antitrust scrutiny. This Court has never specified the boundaries of the NSLE. In Brown, the Court said that the NSLE can continue to apply until an agreement between employers could be sufficiently distant in time and circumstances from the collective-bargaining process. 518 U.S. at 250. The NBA instituted the lockout upon the actual expiration of the CBA. Barksdale I at 4. In Powell v. National Football League, 930 F.2d 1293, 1303 (8th Cir. 1989), the Eighth Circuit held that the NSLE continued to protect NFL defendants restraints on players after the expiration of the collective bargaining agreement as long as an ongoing collective bargaining relationship still existed between the parties. The Court explained that [a] collective bargaining agreement is not always necessary to a finding that challenged employment terms fall within the exception. Id. at Acknowledging that the labor arena is one with well- 19

26 established rules intended to encourage settlements, rather than court intervention, the Court said that the NSLE applied beyond an impasse in negotiations. Id. at There is an ongoing collective bargaining relationship in the present case. Petitioner claims that the fact that the NBPA disclaimed its interest in representing the plaintiffs demonstrates that the relationship no longer exists. Petitioner cites McNeil v. National Football League, 764 F. Supp. 1351, (D. Minn. 1991), where the Eighth Circuit stated that once a union disclaims interest, the NSLE can no longer apply. However, McNeil did not deal with a lockout, and substantial time had passed in that case. The present case should therefore be differentiated, since it deals with a lockout and the present lawsuit was filed the same day that the NBPA disclaimed its interest. Barksdale I at 4. A temporal requirement was not addressed in McNeil; however, Petitioner cannot claim that because it was not addressed in that case, it is never relevant. Indeed, this Court has remarked that it need not decide on the boundaries of NSLE, since Congress intended to leave many of these types of multiemployer bargaining questions to the specialized judgment of the NLRB. Brown, 518 U.S. at 250. Petitioner also cites to Brady v. National Football League, 779 F. Supp. 2d 992 (D. Minn. 2011) to support their claim that the disclaimer was unequivocal and in good faith. The NLRB has explained that [i]n order for a union s disclaimer in representing a particular unit to be valid, it must be unequivocal, made in good faith, and unaccompanied by inconsistent conduct. In re Pittsburgh Steelers, 1991 NLRB GCM LEXIS, 1991 WL at *4 n.8. In Brady, the court rejected the employers claim that the union s disclaimer was a mere tactical maneuver, in part because the disclaimer results in serious consequences for the players. 779 F. Supp. at However, the Court should note that the NFL players decertified their union less than three weeks after the end of litigation. Associated Press, Report: NFLPA Recertified as 20

27 Union, ESPN (Jul. 30, 2011), In fact, it came to light afterwards that despite being reorganized into a labor association, the NFLPA had continued to engage in union behavior, such as continuing to negotiate with the employer. See Gary Graves, DeMaurice Smith: NFLPA Decision to Recertify will be Serious, Sober, USA TODAY (Jul. 21, 2011), In light of this, the Eighth Circuit s decision in Brady should not be relied upon to determine whether a disclaimer is valid because it gives too much discretion to the union and its players to engage in bad faith bargaining tactics. In the present case, the NBA filed an unfair labor claim in response to the NBPA s notice that it was disclaiming any interest in representing the players. Barksdale I at 4. The Powell court explained that as long as there is a possibility that proceedings may be commenced before the [NLRB], or until final resolution of [NLRB] proceedings and appeals therefrom, the labor relationship continues and the labor exemption applies. 930 F.2d at Since the NBA s unfair labor practice claim is unsettled, the Court cannot determine whether the union s disclaimer was in good faith or merely a bad-faith tactical maneuver without further facts. Additionally, Barksdale appealed his four-game suspension through the NBPA. As this brief has addressed, [a] player s right to notice is at the heart of the CBA.... Barksdale I at 9. While the NBPA may have disclaimed its interest in representing players in future grievances, there is no indication that the NBPA is not still representing Barksdale in his appeal of his suspension. By continuing to represent Barksdale, the NBPA is still engaging in inconsistent behavior which calls into question the validity of the disclaimer. 21

28 C. Public Policy Requires That Labor Law, Not Antitrust Law, Governs The Dispute. Federal labor laws provide opposing parties to a labor dispute certain tools, one of which is a lockout of employees. Powell, 930 F.2d at Labor laws give the NLRB primary responsibility for monitoring the collective-bargaining process; these laws take authority from the antitrust courts to determine what is a socially or economically desirable collective bargaining policy. Brown, 518 U.S. at 242. Indeed, relying solely on disclaimer of interest by a union to serve as the determinative factor of extinction of the NSLE would frustrate Congress intention to encourage collective bargaining. As a general matter, labor law permits a limited number of options at an impasse, one of which is a joint lockout. Id. at 245. In Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976), the court articulated the test to be used to determine when labor policy may be given priority over antitrust concerns. That test is: whether the restraint at issue primarily affects only the parties to the collective bargaining relationship; whether the agreement sought to be exempted is the product of a bona fide arm s length negotiation; and whether the dispute concerns a mandatory subject of bargaining. Id. at 614. There is no question that the restraint at issue primarily affects only the parties to the collective bargaining relationship. There is also no dispute that the agreement sought to be exempted is the product of bona fide arm s length negotiations. We turn to the third factor. In Mackey, the court explained that under 8(d) of the NLRA, 20 U.S.C. 158(d), mandatory subjects of bargaining apply to wages, hours, working conditions, and other terms and conditions of employment. 543 F.2d at 615. The determination of whether a subject is mandatory depends on its practical effect, not its form. Id. In the present case, the restraint at issue was the personal conduct policy. Barksdale I at 4. While on its face, 22

29 the personal conduct policy may not appear to be a mandatory subject of bargaining, it can be considered to be one because it affects the working conditions of the players and specifies discipline for behavior that does not conform to the policy. Barksdale II at 8. Since the facts in the current case pass the Mackey test, public policy demands that labor law controls and the NSLE applies. Petitioner cannot prove that the NBPA s disclaimer extinguishes the collective bargaining relationship. The lockout is protected from antitrust scrutiny. CONCLUSION For the reasons set forth above, this Court should affirm the Eighth Circuit Court of Appeals decision and order that the Commissioner's award be enforced. 23