COMPETITOR NUMBER: 1

Transcription

1 COMPETITOR NUMBER: 1

2 SUPREME COURT OF THE UNITED STATES AVON BARKSDALE, OMAR LITTLE, and STRINGER BELL, individually and on behalf of all others similarly situated, Petitioner, v. NATIONAL BASKETBALL ASSOCIATION, Respondent. ON REVIEW OF A DECISION AND ORDER TO ENTER JUDGMENT IN FAVOR OF THE PETITIONER. BRIEF OF THE PETITIONER i

3 QUESTIONS PRESENTED 1. Whether lack of adequate notice and the exclusion of testimony from General Counsel prohibit the arbitration award. 2. Whether the non-statutory labor exemption protects the National Basketball Association s lockout from antitrust scrutiny once the Union disclaimed interest. ii

4 TABLE OF CONTENTS QUESTIONS PRESENTED...ii TABLE OF CONTENTS...iii TABLE OF AUTHORITIES...v STATEMENT OF THE FACTS...1 SUMMARY OF THE ARGUMENT...5 ARGUMENT...7 I. THE COURT OF APPEALS IMPROPERLY AFFIRMED THE MANAGEMENT COUNCIL S MOTION TO CONFIRM THE ARBITRATION AWARD BECAUSE THE AWARD IS PREMISED ON SIGNIFICANT LEGAL DEFICIENCIES AND WAS FUNDAMENTALLY UNFAIR...7 A. The NBA failed to provide Avon Barksdale with adequate notice of potential discipline for misconduct...8 a. The NBA failed to provide Avon Barksdale with notice of any discernable infraction for general awareness of another s conduct...8 b. The NBA failed to provide Avon Barksdale with notice that the punishment for his alleged violations would be the same discipline applied to a player who used performance-enhancing drugs...10 c. The NBA failed to provide Avon Barksdale with notice that the discipline policy could be applied retroactively...12 B. The NBA failed to follow past precedent of granting professional athletes the opportunity to confront their investigators...13 II. THE NBA LOCKOUT IS NOT PROTECTED FROM ANTITRUST SCRUTINY BY THE NON-STATUTORY LABOR EXEMPTION BECAUSE THE UNION S CLEAR DISCLAIMER RESOLVED THE CONFLICT OF LAW AND BECAUSE OF PUBLIC POLICY...15 A. The NBA lockout is not covered by the NSLE because the Players Union was disbanded before the lockout...17 B. The NBA lockout is not covered by the NSLE because the union s disclaimer was unequivocal and consistent with the conduct of the Union...19 iii

5 C. The NSLE does not apply despite the length in time and circumstances from the lockout and the collective bargaining process because there was no longer a bargaining framework...22 D. Even if the Court determined the union was not disclaimed according to non-statutory law, the NSLE does not apply because of public policy...23 III. CONCLUSION...24 iv

6 TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES Allen Bradley Co. V. Local No. 3, Int l Bhd. of Elec. Workers 325 U.S. 797 (1945)...16, 23 Brown v. Pro Football, Inc. 518 U.S. 231 (1996)...15, 22 Connell Constr. Co. v. Plumbers & Steamfitters Local Union No U.S. 616 (1975)...15, 23 Granite Rock Co. v. Int l Bh d of Teamsters 561 U.S. 287 (2010)...7 Local No. 189, Amalgamated Meat Cutters & Butcher Workmen v. Jewel Tea Co. 381 U.S. 676 (1965)...15, 16, 17 Mine Workers v. Pennington 381 U.S. 657 (1965)...15 Morton v. Moncari 417 U.S. 535 (1974) Stolt-Nielsen S.A. v. Animal Feeds International Corp. 559 U.S. 662 (2010)...7 Teamsters v. Oliver 358 U.S. 283 (1959)...15 United Steelworkers v. Warrior & Gulf Nav. Co. 363 U.S. 574 (1960)...8 UNITED STATES COURT OF APPEALS CASES Boise Cascade Corp. v. Paper Allied-Industrial, Chemical & Energy Workers (PACE) 309 F.3d 1075 (8th Cir. 2002)...11 Hoteles Condado Beach v. Union De Tronquistas Local F.2d 34 (1st Cir. 1985)...13 In re Lehman Bros. Holdings Inc. 761 F.3d 303 (2d Cir. 2014)...12 v

7 Mackey v. NFL 542 F.2d 606 (8th Cir. 1976)...16, 17 Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n 820 F.3d 527 (2d Cir. 2016)...7, 12 Powell v. NFL 930 F.2d 1293 (8th Cir. 1989)...19, 20 OTHER CASES 3 Beall Brothers 3, et al. 110 N.L.R.B. 685 (1954)...19 Barksdale v. NBA No. 11-CV-1215, slip op. (D. Tul. Oct. 25, 2016)...1, 2, 3, 8, 9, 10, 11, 12 Bounty-Gate Pre-Hr'g Order No Elec. Workers, Ibew (Textlite, Inc.) 119 N.L.R.B (1958)...20, 21 In the Matter of Adrian Peterson 2015 U.S. Dist. (D. Minn. Feb. 26, 2015)...9, 12 In the Matter of Ray Rice (November 29, 2014)...9, 12 In the Matter of Reggie Langhorne slip op. (Apr. 9, 1994)...8 In re Pittsburg Steelers Case 6-CA-23143, 1991 WL (June 26, 1991)...20, 21 Kaplan v. Alfred Dunhill of London, Inc. No. 96 Civ. 259 (JFK), 1996 U.S. Dist. LEXIS 16455, 1996 WL (S.D.N.Y. Nov. 4, 1996)...14 McAllister Transfer, Inc. 105 N.L.R.B. 751 (1953)...20 McNeil v. NFL 764 F. Supp (D. Minn. 1991)...17 Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n (Ricky Brown) slip op. (July 16, 2010)...8 vi

8 UNITED STATES CODE 9 U.S.C. 10(a)(3) (2012) U.S.C. 1 (2012) U.S.C. 151 (2012) U.S.C. 158 (2012)...16 vii

9 STATEMENT OF THE CASE National Basketball Association (NBA) officials commenced an extensive investigation on May 30, 2016 into the Tune Squad, an NBA team, after allegations surfaced surrounding the use of under-inflated basketballs during game seven of the Western Conference Finals. Barksdale v. NBA, No. 11-CV-1215, slip op. at 1 (D. Tul. Oct. 25, 2016). The NBA and its general counsel, Cedric Daniels, retained Maurice Levy and his law firm to conduct an independent investigation. Id. at 1. The investigation was carried out pursuant to the NBA Policy on Integrity of the Games & Enforcement of Competitive Rules and included review of 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. At the completion of the investigation, Levy compiled a written report (The Levy Report) that included the following narrative: During the May 30, 2016 game, a referee noticed the basketball did not bounce to the proper height when it hit the ground. Id. at 2. A member of the Monstar s equipment staff used a pressure gauge and determined that the basketball was inflated to approximately 11 psi, which is below the rage of 12.5 to 13.5 psi specified in Rule 2, Section 1 of the 2014 NBA Official Playing Rules. Id. at 2. NBA officials collected and tested eleven Tune Squad game balls and four Monstar game balls. Id. at 2. They concluded that all eleven of the Tune Squad game balls measured below 12.5 psi. The Monstar s balls were all inflated within the proper range. Id. at 2. The Levy Report stated that during the game in question, it is more probable than not that Tune Squad personnel participated in violations of the Playing Rules and were involved in a deliberate effort to circumvent the rules. Id. at 3. (citing the Levy Report at 2). The Report determined that Tune Squad employees Jim McNulty and Bunk Moreland participated in a 1

10 deliberate effort to release air from Tune Squad game balls after the referee examined the balls. Id. at 3. The Levy Report also alleged that it is more probably than not that 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 Report acknowledged that there is less direct evidence linking Barksdale to tampering activities than either McNulty or Moreland. Id. at 3. (citing the Levy Report at 17). Barksdale denied any knowledge or involvement in any efforts to deflate game balls after the pre-game inspection by the game officials. Id. On July 18, 2016, the NBA Executive Vice President, William Rawls, sent a disciplinary decision informing Barksdale that he was suspended without pay for the first four games of the regular season. Id. at 3. (citing the Rawls Letter at 2). In response, Barksdale appealed the four game suspension through the NBA Players Association. In an effort to present a defense, Barksdale moved to compel the testimony of NBA General Counsel and colead investigator, Cedric Daniels, at the arbitration hearing. Id. at 3. Commissioner Burrell denied the motion, subject to Article 46 of the CBA, which does not address the permitted scope of witness testimony at appeals hearings. Id. at 3. Burrell determined that Cedric Daniels did not have any first-hand knowledge of the events at issue, nor did he play a substantive role in the investigation that led to Barksdale discipline. Id. at 3. Subsequently, the Commissioner conducted an arbitration appeal hearing and upheld the four-game suspension. Id at 3. In the Award and Final Decision on the Article 46 Appeal of Avon Barksdale, the Commissioner concluded that (1) 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 2

11 destruction of his cellphone knowing that it contained potentially relevant information that had been requested by the investigators. Id at 3 (citing the Award at 13). In addition to the arbitration claim, three NBA players, including Petitioner Avon Barksdale, filed a claim alleging antitrust violations based on the League s player lockout on October 12, Id at 3-4. The day prior, the player s association and NBA s collective bargaining agreement (CBA) was due to expire at 11:39PM. Id. at 4. Preceding the expiration of the CBA and subsequent lockout, the NBA employers and the players, represented by their union, the NBPA, attempted and failed to negotiate a new personal conduct policy. Id. The Union s goal was to prevent unfair disciplinary measures like those against Barksdale. The majority of players had agreed that if the Union, involved in the collective bargaining on behalf of the players, failed to negotiate a new CBA with the NBA, they wished to disband and end the collective bargaining status of the NBPA. Id. The negotiations failed and subsequently the NBPA ended its collective bargaining status by disclaiming its interest in representing the NBA players. Id. At 4PM on October 11, 2016, prior to the lockout, the NBPA (1) informed the NBA of its decision to disclaim any interest in representing the players in negotiations, (2) amended its bylaws to prohibit its members from engaging in collective bargaining with the NBA, individual teams, or agents, (3) notified the National Labor Relations Board (NLRB) to terminate its status as a labor organization, and (4) filed an application with the Internal Revenue Services to be reclassified for tax purposes. Id. In this notice to the NBA, the NBPA specifically notified the NBA that it would no longer collectively bargain on behalf of players and, instead, would have to pursue grievances on an individual or team basis. Id. 3

12 The following day, on October 12, 2016, the NBA instituted a lockout that prevented all players from working. Id. at 4. That same day, Petitioners filed their complaint alleging that the lockout of all players was a violation of federal antitrust law under the Sherman Act. Id. Petitioners alleged that the NBA and its teams collectively agreed and conspired to an unlawful group boycott and a price fixing arrangement that would economically harm the Petitioners. Id. In addition, Petitioners alleged that the lockout is aimed at shutting down the entire free agent market place. Id. In response, the NBA claimed the lockout is exempt from antitrust scrutiny by the non-statutory labor exemption (NSLE). The claims were consolidated because both involved the NBA and Petitioner Avon Barksdale. Id. The United States District Court for the District of Tulania vacated the arbitration award by granting Petitioner Avon Barksdale s motion to vacate the award. As a result, the four-game suspension was vacated. Id. at 17. The Court also ruled that the NBA lockout is not protected by the NSLE and was subject to antitrust scrutiny because the collective bargaining relationship between the NBA and its players had concluded prior to the lockout. Id. at 18. Therefore, the lockout was an unlawful restraint of trade in violation of the Sherman Act. Id. The United States Court of Appeals for the Eighth Circuit reversed the judgment of the District Court on both holdings and remanded with instructions for the District Court to confirm the arbitration award and find that the NBA lockout is protected from antitrust scrutiny because of the NSLE. Barksdale v. NBA, Docket No , slip. op. at 31 (8th Cir. 2016). The United States Supreme Court then granted a writ of certiorari. STANDARD OF REVIEW The Supreme Court will review the case at de novo. 4

13 SUMMARY OF THE ARGUMENT The ruling of the United States Court of Appeals for the Eighth Circuit confirming NBA Commissioner Burrell s arbitration award should be reversed and the award vacated. The award is premised on significant legal deficiencies and the Commissioner s denial of co-lead investigator Cedric Daniels testimony was fundamentally unfair. Commissioner Burrell undermined the fundamental rights of parties in regard to collective bargaining agreements when he suspended Avon Barksdale. Barksdale had no notice that he could be disciplined for the general awareness of others misconduct. Additionally, Barksdale did not receive notice that his discipline for general awareness of another s misconduct would be the same as a player who used performance enhancing drugs, nor did he have advanced notice of the potential suspension as opposed to a fine. In addition to failing to provide Barksdale with adequate notice of his potential discipline, Commissioner Burrell unfairly denied the testimony of Cedric Daniels at the arbitration hearing. Because the NBA cannot fairly suggest, without more than the testimony of its retained counsel, that the edits to the Levy Report made by Daniels were not significant and past precedent demonstrates that professional athletes must have the opportunity to confront their investigators, Commissioner Burrell s denial of the testimony of Cedric Daniels was fundamentally unfair. Moreover, the Eighth Circuit Court of Appeals erred in finding that the NBA lockout was not subject to antitrust scrutiny because the non-statutory labor exemption (NSLE) applied. The exemption, created to encourage the collective bargaining process and resolve conflict between antitrust law and labor law, was no longer applicable after the union disclaimed its status. The players union s disclaimer was clear, unequivocal, and consistent with its conduct. The NBA was notified of the union s disclaimer, and therefore the collective bargaining process was dismantled 5

14 before the lockout was instituted. The length in time and circumstances between the lockout and collective bargaining process is irrelevant because the bargaining framework had already collapsed. This is in contrast with case law evaluating time and distance from a restriction and the collective bargaining process. Lastly, in considering the public policies that created the nonlabor statutory exemption, the exemption does not apply in this matter because the lockout places an unreasonable restraint on the market place and is outside a collective bargaining framework. 6

15 ARGUMENT I. THE COURT OF APPEALS IMPROPERLY AFFIRMED THE MANAGEMENT COUNCIL S MOTION TO CONFIRM THE ARBITRATION AWARD BECAUSE THE AWARD IS PREMISED ON SIGNIFICANT LEGAL DEFICIENCIES AND WAS FUNDAMENTALLY UNFAIR The issue in this matter is whether NBA Commissioner Ervin Burrell s August 1, 2016 Arbitration Award conflicts with the fundamental rules of labor law. It does. Commissioner Burrell s affirmation of his arbitration decision to suspend Avon Barksdale for alleged violations undermines the rights of union members for two reasons. First, Commission Burrell deprived Barksdale of his right to fair notice of the conduct that subjected him to punishment. Second, Barksdale was unjustly prejudiced when Commissioner Burrell refused to allow a co-lead investigator to testify. Commissioner Burrell undermined the fundamental rights of parties in regard to collective bargaining agreements when he suspended Avon Barksdale. Under the Labor Management Relations Act, arbitration is strictly a matter of consent. Granite Rock Co. v. Int l Bh d of Teamsters, 561 U.S. 287, 299 (2010). Parties are generally free to structure their arbitration agreements as they see fit. Stolt-Nielsen S.A. v. Animal Feeds International Corp., 559 U.S. 662 (2010). Under Article 46 of the Collective Bargaining Agreement (CBA), the Commissioner may appoint either himself or someone else as arbitrator. In the case at hand, Commissioner Burrell designated himself as arbitrator over an issue in which he held a stake and played a substantial role. This conflict of issue led to an unfair and inconsistent method of dispute resolution when Commission Burrell ignored both past precedent and CBA terms and applied his own conceptions of industrial justice. In re Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n, 820 F.3d 527, 534 (2d Cir. 2016). 7

16 A. The NBA failed to provide Avon Barksdale with adequate notice of potential discipline for misconduct. In the August 1, 2016 Arbitration Award, Commissioner Burrell never specified which part of Barksdale s discipline was attributable to alleged ball tampering and which part was attributable to non-cooperation. In either circumstance, the arbitration decision and imposition of a four-game suspension should be vacated due to the inadequate notice of potential discipline. If Commissioner Burrell s decision were to be upheld, it would set a precedent that an employee has no right to fair notice of conduct that could subject them to punishment. Because the NBA failed to provide Petitioner with adequate notice of any potential discipline for misconduct, the arbitration award should be vacated. a. The NBA failed to provide Avon Barksdale with notice of any discernable infraction for general awareness of another s conduct. Although not expressly included, the law of the shop is an equal part of the Collective Bargaining Agreement. United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574 (1960). In the case at hand, the District Court noted that in the professional leagues, it is the law of the shop to provide professional athletes with advance notice of prohibited conduct and potential discipline. Barksdale v. NBA, No. 11-CV-1215, slip op. at 5 (D. Tul. Oct. 25, 2016). Further, any disciplinary program requires that individuals subject to that program understand, with reasonable certainty, what results will occur if they breach established rules. In the Matter of Reggie Langhorne, slip op. at 25 (Apr. 9, 1994). The NBA failed to provide Barksdale with adequate notice that he could receive a fourgame suspension for general awareness of another person s alleged misconduct. Further, the NBA has never punished players for such an alleged violation. Because the NBA has never punished players for this, it is proper to consider the procedure in other professional leagues. 8

17 Both Reggie Langhorne and Ricky Brown state that in order to be enforceable, a rule must clearly and unambiguously establish the scope of prohibited conduct, as well as the consequences of violations. In the Matter of Reggie Langhorne, slip op. at 25 (Apr. 9, 1994); Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n (Ricky Brown), slip op. at 10 (July 16, 2010). When an issue is not explicitly addressed in the National Football League policy handbooks, past precedent demonstrates that a corresponding change is made to the next version of the CBA. See In the Matter of Ray Rice (November 29, 2014). When NFL player Ray Rice was caught on film abusing his wife, the Commissioner determined, consistent with past punishment, that Rice was to be suspended for two games and fined the pay for an additional game. Id. After receiving public criticism for the light discipline, Commissioner Goodell announced that he didn t get it right in both disciplining Rice and setting the League s policies on domestic abuse. Id. The League promptly declared a new policy, setting the punishment for first-time offenders at a suspension of six-games. Id. As demonstrated through Rice, the offending player is not held to a retroactive application of policy change. Despite the broad deference afforded to the Commissioner through Article 46 of the NFL CBA, this standard ensures that the Commissioner acts with fairness and consistency in applying his discipline. Where the imposition of discipline is not fair or consistent, an abuse of discretion has occurred. See In the Matter of Adrian Peterson, 2015 U.S. Dist. (D. Minn. Feb. 26, 2015). In the NBA, no player has ever been subject to discipline for the general awareness of another person s alleged misconduct. However, Avon Barksdale was given a four-game suspension based on the finding that he was generally aware of ball deflation by two members of the equipment staff. The Levy Report concluded that it is more probable than not that Avon 9

18 Barksdale was at least generally aware of the inappropriate activities of McNulty and Moreland involving the release of air from Tune Squad game balls. Barksdale v. NBA, No. 11-CV-1215, slip op. at 3 (D. Tul. Oct. 25, 2016). The Report did not find that Barksdale himself participated in or directed any ball deflation, and the NBA conceded there was no direct evidence linking Barksdale to any ball tampering. As there is no NBA policy or past precedent that offers such notice and the NBA has never punished a player for such an alleged violation, Barksdale had no notice that he could be disciplined for the general awareness of others misconduct. Further, if the League were to declare a new policy, setting the punishment for first-time offenders of general awareness of other s conduct, past precedent demonstrates that Barksdale should not be held to such a retroactive application of policy change. Without appropriate notice, the arbitration award was wholly improper and should be vacated. b. The NBA failed to provide Avon Barksdale with notice that the punishment for his alleged violations would be the same discipline applied to a player who used performance-enhancing drugs. Avon Barksdale did not receive notice that the punishment for general awareness of another s misconduct would be the same as a player who used performance-enhancing drugs. Therefore, the Policy on Anabolic Steroids and Related Substances cannot serve as notice of discipline to Barksdale. The Commissioner states that Barksdale was punished pursuant to violations of the Competitive Integrity Policy, which is only incorporated into the Game Operations Manual and given to Chief Executives, Club Presidents, General Managers, and Head Coaches, but not to players. Barksdale, No. 11-CV-1215, slip op. at 8. Commissioner Burrell argued that Barksdale knew of the established rules governing the pressure of NBA game balls and had ample reason to expect that a violation of that rule would be 10

19 deemed detrimental conduct. However, Barksdale had no legal notice of discipline under the Competitive Integrity Policy because the policy manual was not provided to players. Barksdale v. NBA, No. 11-CV-1215, slip op. at 9 (D. Tul. Oct. 25, 2016). Commissioner Burrell failed to explain the reason behind applying the steroid policy as opposed to the Players Policy provision regarding equipment violations, which calls for a fine as the punishment for a first offense. It would appear that the penalty schedule for equipment-related violations would be more relevant to determining the penalty than the steroid provision. Despite the existence of the provision regarding equipment violations, Commissioner Burrell concluded that it was appropriate to apply the same discipline that the NBA applies for players who use steroids. The Commissioner noted that the four-game suspension typically imposed on first-time steroid users was a point of comparison because "steroid use reflects an improper effort to secure a competitive advantage in, and threatens the integrity of, the game." However, the Commissioner offers no scientific, empirical, or historical evidence of any comparability between Barksdale s alleged offense and steroid use. Barksdale v. NBA, No. 11- CV-1215, slip op. at 6 (D. Tul. Oct. 25, 2016). The Court of Appeals concluded that the Commissioner was within his discretion in drawing a helpful, if somewhat imperfect, comparison to steroid users. Barksdale v. NBA, No. 11-CV-1215, slip op. at 23 (D. Tul. 2016). The Court of Appeals also determined that requiring the Commissioner to consider these collectively bargained penalties would conflict with affording the arbitrator deference in their decisions. Id. However, this determination clashes with Boise Cascade Corp., which holds that when an arbitrator fails to discuss a probative contract term, and at the same time offers no clear basis for how he construed the contract to reach his 11

20 decision without such consideration, a vacated judgment is warranted. Boise Cascade Corp. v. Paper Allied-Industrial, Chemical & Energy Workers (PACE), 309 F.3d 1075 (8th Cir. 2002). The District Court correctly determined that no player alleged to have a general awareness of activities of others could reasonably be on notice that their discipline would be the same as a player who violated the NBA Steroid Policy. If employees cannot predict the punishment for their conduct, workers will no longer be able to trust arbitration as a fundamentally fair process. The inescapable result of the appellate court s decision would be the degradation of labor arbitration as a perceived fair method of dispute-resolution. c. The NBA failed to provide Avon Barksdale with notice that the discipline policy could be applied retroactively. Commissioner Burrell contends that Barksdale s discipline stems from the general CBA policy precluding players from engaging in any conduct that is "detrimental to the integrity of, or public confidence in, the game of professional basketball." Barksdale v. NBA, No. 11-CV-1215, slip op. at 8 (D. Tul. 2016) (citing CBA Art. 46 1(a)). In NFL discipline cases, specifically Ray Rice and Adrian Peterson, the players could be said to understand that acts of domestic violence might be deemed "conduct detrimental." In re Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n, 820 F.3d 527, 534 (2d Cir. 2016); In the Matter of Adrian Peterson, 2015 U.S. Dist. (D. Minn. Feb. 26, 2015); In the Matter of Ray Rice (November 29, 2014). In both Rice and Peterson, the players were disciplined only after findings were made under the specific domestic violence policy. Id. However, general concepts such as "conduct detrimental" do not provide proper notice of potential discipline to players. See In re Lehman Bros. Holdings Inc., 761 F.3d 303, 313 (2d Cir. 2014). Although Barksdale was aware that he could receive a fine for equipment violations, he did not have notice of the possibility of a suspension as opposed to a fine and the NFL arbitration 12

21 precedent confirms the suspension should be vacated. In both Rice and Peterson, the courts held that the increased NFL penalties set forth in a "new" policy for domestic violence could not be applied to the players, because these players did not receive notice of such penalties. In re Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n, 820 F.3d 527, 534 (2d Cir. 2016). The policy change was forward looking because the League is required to provide proper notice. Id. A procedure of policy application recognizing the importance of notice in advance is consistent with prior NFL arbitration decisions. Id. The Commissioner s authority is bound in large part by precedent in prior cases, decisions that have been heard on appeal in the past, and notions of fairness and appropriateness. See In the Matter of Ray Rice (November 29, 2014). When determining whether the action that a commissioner took was appropriate, you have to [look] at what would happen relative to other leagues, other organizations, [and] other entities. Id. Taking into consideration the precedent set in prior cases, as well as notions of fairness and appropriateness, the action that Commissioner Burrell took was inappropriate. Barksdale did not have advanced notice of the potential suspension as opposed to a fine. Therefore, the four-game suspension should be vacated. B. The NBA failed to follow past precedent of granting professional athletes the opportunity to confront their investigators. Commissioner Burrell s denial of the testimony of Cedric Daniels was fundamentally unfair because the NBA publicly declared that Cedric Daniels was the co-lead investigator on the Daniels/Levy investigation, Daniels had reviewed the Levy Report, and Daniels gave written comments before the release of the Report. Barksdale was denied the opportunity to explore whether the Daniels/Levy Investigation was truly "independent" and how and why the NBA General Counsel came to edit a supposedly independent investigation report. 13

22 Under the Federal Arbitration Act, the Court may vacate an arbitration award where the arbitrators were guilty of...refusing to hear evidence pertinent and material to the controversy. 9 U.S.C. 10(a)(3). An arbitrator 'must give each of the parties... an adequate opportunity to present its evidence and argument.'" Hoteles Condado Beach v. Union De Tronquistas Local 901, 763 F.2d 34, 39 (1st Cir. 1985). "A fundamentally fair hearing requires that the parties... present evidence and cross-examine adverse witnesses." Kaplan v. Alfred Dunhill of London, Inc., No. 96 Civ. 259 (JFK), 1996 U.S. Dist. LEXIS 16455, 1996 WL (S.D.N.Y. Nov. 4, 1996). In the case at hand, Daniel s role as General Counsel and his designation as co-lead investigator with Maurice Levy would have allotted him valuable insight into the course of the investigation. In addition, Daniels reviewed the Levy Report and gave written comments before its release. Therefore, the NBA cannot fairly suggest, without more than the testimony of its retained counsel, that the edits to the Levy Report made by Daniels were not significant. Daniels helped prepare the final report and thus, the investigation was obviously not independent of Daniels. Past precedent demonstrates that professional athletes must have the opportunity to confront their investigators in arbitration hearings. Bounty-Gate Pre-Hr'g Order No. 4. An arbitrator should "compel the witnesses necessary for the hearing to be fair. Kaplan, 1996 WL In the Ray Rice appeal, Judge Jones concluded that limiting the available witnesses knowledgeable about the [evidence] to the individuals the NFL is willing to produce would prevent Rice from presenting his case and runs the risk of providing an incomplete picture of the [evidence] both parties have identified as critical." Ray Rice Order on Discovery and Hearing Witnesses at

23 Because the NBA cannot fairly suggest that the edits to the Levy Report made by Daniels were not significant, and past precedent demonstrates that professional athletes must have the opportunity to confront their investigators, Commissioner Burrell s denial of the testimony of Cedric Daniels was fundamentally unfair. The arbitration award should be vacated because the NBA failed to provide adequate notice of potential discipline, notice that punishment was available for general awareness of misconduct, notice that punishment would mirror unrelated misconduct, notice of retroactive disciplinary action, and failed to provide Petitioner with the opportunity to confront the investigator to present a defense. II. THE NBA LOCKOUT IS NOT PROTECTED FROM ANTITRUST SCRUTINY BY THE NON-STATUTORY LABOR EXEMPTION BECAUSE THE UNION S CLEAR DISCLAIMER RESOLVED THE CONFLICT OF LAW AND BECAUSE OF PUBLIC POLICY The NBA lockout is not exempt under the NSLE and therefore is not protected from anitrust scrutiny under Section 1 of the Sherman Act because the lockout occurred after the player s union disbanded and their disclaimer was clear to Respondent. 15 U.S.C. 1 (2012). The Sherman Act states that [e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States... is declared to be illegal. 15 U.S.C. 1. The Sherman Act, intended to prohibit agreements that unreasonably restrain fair trade in interstate commerce, incorporates a non-statutory labor exemption, created through a long line of case law, which allows labor unions to engage in agreements that demand improved wages, hours, and working conditions. See Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616 (1975); Local No. 189, Amalgamated Meat Cutters & Butcher Workmen v. Jewel Tea Co., 381 U.S. 676 (1965); Mine Workers v. Pennington, 381 U.S. 657 (1965); Brown v. Pro Football, Inc., 518 U.S. 231 (1996). 15

24 The Court has implied this exemption from multiple federal labor statutes that favor a national policy of free and private collective bargaining for labor. Teamsters v. Oliver, 358 U.S. 283, 295 (1959); 29 U.S.C. 151 (2012). Such bargaining and subsequent agreements may, in some way, hinder or restrain fair trade so long as parties negotiate in good-faith. Brown, 518 U.S. at 236; 29 U.S.C. 158(a)(5), 158(d) (2012). This exemption interprets labor statutes in accordance with the public policy that judicial use of antitrust law should not be utilized to resolve labor disputes. Brown, 518 U.S. at The statutory exemption was created to insulate legitimate collective activity by employees, which is inherently anticompetitive but is favored by federal labor policy, from the proscriptions of the antitrust laws. Mackey v. NFL, 542 F.2d 606, 611 (8th Cir. 1976). In order to resolve this conflict, the Court created this narrow exemption. Allen Bradley Co. V. Local No. 3, Int l Bhd. of Elec. Workers, 325 U.S. 797, (1945). The exemption does not bar all antitrust scrutiny of labor disputes but instead, a court may use its authority to determine what is or is not a reasonable practice in the area of an industrial conflict. Id. Therefore, the exemption applies only when other labor laws conflict with antitrust law and the two statutes are irreconcilable. Id. at 236; Morton v. Moncari, 417 U.S. 535, 550 (1974). It logically follows that the NSLE does not apply when no other labor law conflicts with antitrust law. See Brown, 518 U.S. at 231; Jewel Tea Co., 381 U.S. 676, 691. In addition to the requirement that there must be a conflicting statute, Courts may use its discretion in considering the public policies that support the application of the NSLE. A court may consider the restraint placed on the market place and whether it is reasonable or unreasonable. See Allen Bradley, 325 U.S Both in applying the requirement that a conflicting labor law must exist, as well as taking into consideration the public policy in applying 16

25 the exemption, the NSLE does not apply to the NBA lockout and, thus, the lockout should be subject to antitrust scrutiny. A. The NBA lockout is not covered by the NSLE because the Players Union was disbanded before the lockout. The NSLE to the Sherman Act does not apply in this matter because the collective bargaining agreement and corresponding relationship ended before the NBA lockout and, therefore, antitrust scrutiny should apply. As stated, the exemption does not apply where a collective bargaining relationship has ended. See Brown, 518 U.S. at 250; Mackey, 542 F.2d at 606. The collective bargaining process and the protection of the NSLE are extinguished with the disclaimer or decertification of a union. McNeil v. NFL, 764 F. Supp. 1351, (D. Minn. 1991). Without the exemption, the National Labor Relations Act, which mandates bargaining over terms of employment, would be irrelevant if resulting agreements were subject to antitrust violations. See Jewel Tea, 381 U.S. at 691. The exemption is an implied retraction of the Sherman Act, where applying antitrust liability would contradict labor law and prohibit parties from engaging in the collective bargaining process. Brown, 518 U.S. at 237. In Brown, the Supreme Court stated that, [t]he implicit exemption recognizes that, to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place, some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions. Id. In Brown, the Court examined whether the NSLE applied where the National Football League s Players Association (NFLPA) claimed that the NFL violated antitrust laws when a collective bargaining agreement had expired, negotiating parties had reached an impasse, and the NFL subsequently made and implemented a final best offer. Brown, 518 U.S. at 235, 250. The Court held that the exemption applied to the implementation of the final offer because it took 17

26 place during and right after a collective-bargaining negotiation, it was directly linked to the operation of the bargaining process, and it pertained to an issue which the parties were required to negotiate. Id. at 250. In Brown, there was merely an impasse in the bargaining process, but no decertification of a union or relinquishing of all collective bargaining rights. In addition, the Court ruled the impasse and implementation of the final offer made by the NFL was covered by the exemption because it was interpreted as an integral part of the bargaining process. Id. at 239. 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. at 238. The impasse in negotiations, expiration of the collective bargaining agreement, and implementation of the NFL s final offer are all interpreted as part of the collective bargaining process. In the case at hand, there was no conflict of law because the NBPA union decertified itself and ended the collective bargaining process. The union no longer represented the players when the NBA instituted a lockout and, therefore, there is no conflict of law. The exemption terminated when the NBPA disclaimed itself as a union and the collective bargaining relationship ended. Once the Players Association was no longer a union, there was no conflict of law and the lockout is subject to antitrust scrutiny. In Brown, the labor exemption applied because the union was still in existence and the players had the right to collectively bargain. Therefore, the impasse in negotiations, all under the regulatory requirements to bargain in good faith, was merely a part of the bargaining process rather than the end to the bargaining process. With the union s right to negotiate still in 18

27 existence, labor law was still in conflict with antitrust law and, consequently, the exemption could apply. In this case, the union had clearly disclaimed it s status, the NBA players had relinquished the right to collectively bargain, and therefore the conflicting labor law was no longer in conflict because each player could only negotiate as a single entity. The NSLE was created to make the collective bargaining process more effective, yet there was no longer a collective bargaining process or right to collectively bargain once the union disclaimed its status. This is confirmed in Powell v. NFL in which the Court stated that [t]he Sherman Act could be found applicable, depending on the circumstances... if the affected employees ceased to be represented by a certified union. 930 F.2d 1293, 1303 n.12 (8th Cir. 1989). The NBA asserts that the players union s disclaimer was part of the bargaining process, a step made in order to advance the employee s position. Yet, this claim ignores the unequivocal fact that the players lost a plethora of rights when disclaiming the union, including the rights to challenge certain unfair labor practices and to challenge an individual team s refusal to collectively bargain. In contrast, the NBA employers gained the right to impose any terms and conditions and implement other workplace provisions, as long as they do not violate antitrust laws. There were far more consequences to the players in disclaiming the union and, therefore, it would be unreasonable to view the disclaimer as a tactic to gain power in the negotiation process. As a result, the NSLE does not apply in this matter because the collective bargaining agreement and relationship ended before the lockout, thus eliminating any conflict between labor law and antitrust law. The NBA lockout is subject to antitrust scrutiny. B. The NBA lockout is not covered by the NSLE because the union s disclaimer was unequivocal and consistent with the conduct of the union. The union s disclaimer was unequivocal and consistent with the conduct of the union and, therefore, the NBA s assertion that the NBPA had not disclaimed its status as a union and 19

28 still represented the players is incorrect. For a disclaimer to be effective, it must be unequivocal and must be made in good faith. Elec. Workers, Ibew (Textlite, Inc.), 119 N.L.R.B. 1792, (1958). For a disclaimer to be effective, the union's conduct must also not have been inconsistent with its alleged disclaimer. Id. at 1799; McAllister Transfer, Inc., 105 N.L.R.B. 751, 753 (1953). A union s bare statement that is has disclaimed its status is not sufficient to show that it has abandoned the claim to represent members if the surrounding circumstances and conduct justify a contrary inference. Elec. Workers, Ibew (Textlite, Inc.), 119 N.L.R.B. at 1799; 3 Beall Brothers 3, et al., 110 N.L.R.B. 685, 687 (1954). In Electrical Workers, the alleged disclaimer of a union was found be made not in good faith and therefore was ineffective to relieve the union of its obligation to bargain with the other party. Elec. Workers, Ibew (Textlite, Inc.), 119 N.L.R.B. at The union s conduct did not constitute clear manifestation of an unequivocal intent to abandon collective bargaining in its labor relations, partially because the union was in full agreement with all terms of the contract except one component. Id. at Furthermore, the agreed upon terms were put into effect after the union refused to sign the contract. A group s action is not abandoned simply because of a failure to agree on all terms of, or to sign, the last contract that was negotiated through group action. Id. The union at no time orally evinced an unequivocal intention to withdraw from group action and to pursue an individual course in labor relations. Id. Consequently, the union failed to unequivocally disclaim its status and its conduct was contradictory to the disclaimer. A statement from the General Counsel of the National Labor Relations Board in response to the decision in Powell v. NFL, noted that the NFL Players Association s disclaimer was valid as the union had not merely disclaimed representative status, but also had restructured itself so that it no longer functioned as a collective bargaining unit. In re Pittsburg Steelers, Case 6-CA- 20

29 23143, 1991 WL (June 26, 1991). The statement concluded, [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 Pittsburg Steelers, 1991 WL at *4 n.8. In this case, the disclaimer was unequivocal and consistent with the conduct. The NBA was well aware of the impasse in negotiations and aware of the looming expiration of the collective bargaining agreement. To disclaim its status, the NBPA amended its bylaws to prohibit its members from engaging in collective bargaining with a variety of entities and individuals, filed a notice with the Department of Labor to cease its status as a labor organization, filed an application for reclassification with the IRS for tax purposes, and most importantly, notified the NBA that it would no longer represent players under the expiring collective bargaining agreement. In its notification to the NBA, it was made clear that the players would no longer have the right or authority to collectively bargain and instead must deal with labor disputes and grievances on an individual basis. In contrast with Electrical Workers, there is no evidence in this case of conduct by the players or union that is inconsistent with a total disclaimer. Unlike in Electrical Workers, the employees did not continue working without a signed contract, signifying conduct that was inconsistent with a disclaimer. Instead, with the clear impasse in negotiations and expiration of the collective bargaining agreement, the union disclaimed its status as a collective bargaining unit. There was no conduct that contradicted the disclaimer and the NBA did not allege that the disclaimer came as a surprise. The disclaimer of the union was unequivocal and was not inconsistent with any conduct, and therefore the NBA lockout is not protected by the NSLE and is subject to antitrust scrutiny. 21

30 C. The NSLE does not apply despite the distance in time and circumstances from the lockout and the collective bargaining process because there was no longer a bargaining framework. The exemption does not preclude the NBA lockout from antitrust scrutiny despite the distance in time and circumstances from the collective bargaining process because the process was terminated with the disclaimer of the union. The Supreme Court held that the exemption continues to apply until there has been sufficient distance in time and circumstances from the collective bargaining process that any antitrust violation would not interfere with the bargaining process. Brown, 518 U.S. at 250. In Brown, there was not sufficient distance in time and circumstances from the collective bargaining process when there was an impasse in negotiations and the NFL implemented its final offer. Id. The distance in time and circumstances were found to be insufficient based on the underlying policy of the exemption, which is to give effect to labor laws and allow a meaningful collective bargaining process to take place. Id. at 237. The Court in Brown also cited the lower court, which suggested that the exemption only lasts until the collapse of the collective bargaining relationship. Id. at 250. Contrasting with Brown, the distance in time and circumstances from the collective bargaining process are immaterial in this case because the collective bargaining process had already ended. The language in Brown was intended to address a particular situation in which parties involved in a collective bargaining process have reached an impasse in negotiations and the purpose of the distance is to ensure both parties remain committed to the good faith collective bargaining process. Yet, as is the situation in this case, this is irrelevant because there was no longer a bargaining framework to be upheld after the union had disclaimed its status. In sum, the distance in time and circumstances from the collective bargaining process and the lockout is irrelevant and the NSLE is not applicable. 22

31 D. Even if the Court determined the union was not disclaimed according to nonstatutory law, the NSLE does not apply because of public policy. In addition to the reasons set forth above, the NSLE is not applicable in this matter and the lockout is subject to antitrust scrutiny because of the public policies supporting the exemption. In Allen Bradley, the Court determined that the NSLE did not apply when an electrical workers union negotiated a series of agreements that set forth that manufacturers and contractors could only deal with other manufacturers and contractors that employed union members. Allen Bradley Co., 325 U.S. at (1945). Other manufacturers from outside of New York City were restricted from engaging in market activities in the City, and successfully sued under antitrust laws. The Court recognized that the union was seeking to secure good jobs and wages for themselves but held the NSLE did not apply due to the unreasonable restrain in competition and monopolization of the market. Id. at 798. The exemption was not created to allow any and all market restrictions born from labor negotiations, but instead was created to inhibit the collective bargaining process created by federal labor law. Brown, 518 U.S. at 250. Without the exemption, the collective bargaining process and National Labor Relations Act would be totally void if all and any restrictions on the market were subject to antitrust scrutiny. Even in cases where a union has not disclaimed its status, the collective bargaining agreement has not expired, and negotiations are ongoing, the exemption may not apply when market restrictions are too severe. See Allen Bradley Co., 325 U.S. at ; Connell Constr. Co., 421 U.S. at 616. In the Allen Bradley case, the exemption did not apply because of the unreasonable restriction on the market. Not only is it evident here that the players union disbanded before the lockout and the players association clearly notified the NBA, the restrictions on the players ability to compete in the market place is even more present than in the Allen Bradley case. The 23

32 lockout not only places a restriction on market activity but completely bars players from engaging in any market activity whatsoever. The exemption was not created to allow any restriction on interstate market activity but to encourage a collaborative bargaining process. Even if the Court finds that the disclaimer was not clear and unequivocal and that the union s disclaimer did not eliminate the conflict between labor and antitrust laws, the NBA lockout is still subject to antitrust scrutiny due to the unreasonable restraint it places on fair market engagement. III. CONCLUSION The decision of the United States Court of Appeals for the Eighth Circuit should be reversed. NBA Commissioner Burrell s arbitration award should be reversed because the award is premised on significant legal deficiencies and the Commissioner s denial of Cedric Daniels testimony was fundamentally unfair. Petitioner Barksdale had no notice that he could be disciplined for the general awareness of others misconduct and he did not receive notice that his discipline for general awareness of another s misconduct would be the same as a player who used performance-enhancing drugs. Petitioner Barksdale also did not have advanced notice of the potential to receive a suspension as opposed to a fine. The decision should also be reversed as a result of the lack of testimony from Cedric Daniels. Commissioner Burrell unfairly denied the testimony of Daniels at the arbitration hearing because the NBA cannot fairly allege that the edits to the Levy Report made by Daniels were not significant and past precedent demonstrates that professional athletes must have the opportunity to confront their investigators. Finally, the Court of Appeals erred in finding that the NBA lockout was exempt under the non-statutory labor exemption and not subject to antitrust scrutiny. The NSLE no longer 24