In the SUPREME COURT OF THE UNITED STATES OF AMERICA. NATIONAL HOCKEY LEAGUE, Petitioner,

Transcription

1 In the SUPREME COURT OF THE UNITED STATES OF AMERICA NATIONAL HOCKEY LEAGUE, Petitioner, v. MICHAEL SCOTT and NATIONAL HOCKEY LEAGUE PLAYER S ASSOCIATION, Respondent. ON WRIT OF CERTIORARI TO THE APPELLATE COURT OF TULANIA BRIEF FOR PETITIONER Team 13 1

2 TABLE OF CONTENTS TABLE OF CONTENTS 2 QUESTIONS PRESENTED 3 JURISDICTION 3 STANDARD OF REVIEW 3 STATEMENT OF THE FACTS 4 SUMMARY OF THE ARGUMENT 6 ARGUMENT 7 I. MICHAEL SCOTT S CLAIMS UNDER MINNESOTA S DRUG AND ALCOHOL 7 TESTING IN THE WORKPLACE ACT ARE PREEMPTED BY SECTION 301 OF THE LABOR MANAGEMENT RELATIONS ACT. A. The LMRA Supersedes State Regulatory Law in Favor of 7 Uniform Interpretation Of Collectively Bargained Agreements. a) Michael Scott s Claims Cannot Be Resolved Without Reference 9 to an Interpretation of the CBA. B. NHL has a Critical Interest in Establishing Uniform Rules that can be 11 Consistently Enforced. a) A Single, Uniform Standard of Conduct is Precisely the Reason 12 Congress Enacted Section 301 of the LMRA. b) Allowing DATWA to be Enforced Would Open the Floodgates 13 for Individualized Claims Based on Interpretations of Various State Laws. c) Without Uniform Federal Labor Law Practices, the NHL Would Lose 14 its Ability to Enforce Drug Violations of it Players. II. THE COURT OF APPEALS ERRED IN FINDING THAT 15 THE LEAGUE S REFUSAL TO ISSUE SPECIFIC PRODUCT WARNINGS VIOLATED PUBLIC POLICY, BECAUSE THE LEAGUE DID NOT HAVE A FIDUCIARY DUTY TO PLAYERS, AND THEIR ACTIONS WERE NOT IN VIOLATION OF AN EXPLICIT PUBLIC POLICY. A. There is no fiduciary relationship between the League and players. 16 B. Even if a fiduciary relationship existed between the parties, 18 the League s actions in not issuing specific product warnings did not breach that fiduciary duty. C. No Explicit Public Policy Exists in Relation to the League s Conduct 21 That Would Allow a Court to Overturn The Arbitrator s Decision. CONCLUSION 22 2

3 QUESTION PRESENTED I. WHETHER SECTION 301 OF THE NATIONAL LABOR MANAGEMENT RELATIONS ACT PREEMPTS A CHALLENGE UNDER MINNESOTA STATUTE TO COLLECTIVELY BARGAINED DRUG TESTING PROCEDURES FOR PROFESSIONAL HOCKEY PLAYERS, WHERE THE STATUTE EXPRESSLY REQUIRES REFERENCE TO AND ANALYSIS OF TERMS OF THE COLLECTIVELY BARGAINED AGREEMENT. II. WHETHER THE COURT OF APPEALS CORRECTLY SET ASIDE AN ARBITRATOR S AWARD SANCTIONING THE NATIONAL HOCKEY LEAGUE S REFUSAL TO ISSUE SPECIFIC PRODUCT WARNINGS REGARDING THE PRESENCE OF A BANNED SUBSTANCE IN A DIETARY SUPPLEMENT BECAUSE SUCH AN AWARD VIOLATED PUBLIC POLICY. JURISDICTION The Tulania Court of Appeals entered its judgment. This Court has jurisdiction pursuant to 28 U.S.C. 1254(1). STANDARD OF REVIEW For the purposes of this prompt, the Supreme Court of the United States will review all matters de novo. 3

4 STATEMENT OF FACTS Michael Scott, Stanley Hudson, Toby Flenderson, and Oscar Martinez, (collectively Players ) are employees of members teams within the National Hockey League (NHL). Scott is an employee of the Minnesota Wild, L.L.C. Players are also members of the National Hockey League Players Association (NHLPA). In 2013, the NHLPA, representing its members, and the NHL entered into a Collective Bargaining Agreement (CBA) that includes a Policy on Anabolic Steroids and Related Substances (the Policy). Under this Policy, players may not use drugs or products that are listed on the NHL s Prohibited Substances list. A player that tests positive for a Prohibited Substance is subject to discipline by the Commissioner. Players can however, appeal their discipline to an arbitrator that is either the Commissioner, or his designee, whose decision constitutes a full, final, and complete disposition of the appeal that is binding to all parties. The Policy adopts a strict liability standard, and makes very clear that players are personally responsible for any substance that enters their bodies. Additionally, it says that a positive test result will not be excused because a player did not know he was taking a Prohibited Substance, nor if the player took the substance unintentionally. This CBA was jointly created by both the NHL and NHLPA, and agreed to by players. Dr. Dwight Schrute, and Independent Administrator, was tasked with administering the Policy s test procedures. This includes overseeing the drug testing procedures, making determinations regarding the method by which players are subjected to testing, educating the players regarding the implementation of the Policy, and reporting any positive test results to the Commissioner. Dr. Jim Halpert, a Consulting Toxicologist, also helps implement the Policy. Schrute and Halpert have no affiliation with any NHL Club or the Commissioner s office. 4

5 In 2013, Schrute learned that the product SuperDope, a sleep aid supplement, contained Narcotussin, a Prohibited Substance. Ms. Phyliss Vance, Vice President of the Labor Policy for the NHL, was quickly made aware of this finding. In response, the NHL reported to the NHLPA that Dunder Mifflin, distributor of SuperDope had become a banned company with which teams and players were prohibited from doing business. The NHLPA in turn informed players. In further attempting to fulfill his role of educating players, Schrute then sent out a memo advising players not to take sleep aid supplements, and reiterated the Policy s standard of strict liability. Despite the numerous warnings against sleep aid supplements, Scott and other players took SuperDope, and testing positive to Narcotussin. The Players were suspended for twenty games. On appeal, the players argued that while they were warned against taking sleep aid supplements and were aware of the Policy s strict liability provisions, they should not be disciplined because Schrute and the NHL (collectively The League) did not issue a specific warning that SuperDope contained Narcotussin. The arbitrator chose to uphold the suspensions, mainly due to the Policy s unambiguous language that players are personally responsible for the products that enter their bodies, and were given repeated warnings against taking SuperDope. Scott then filed suit in Minnesota State Court against the NHL, Schrute, Halpert, and Vance, alleging that Minnesota s Drug and Alcohol Testing In the Workplace Act (DATWA) prohibited enforcement of the arbitration award. The court granted him temporary restraining order. The NHL then removed the case to federal court, where it was consolidated with an action brought by the NHLPA seeking to vacate the arbitration awards under the Labor Management Relations Act (LMRA), The NHL was granted summary judgement on all claims. The Players and the NHLPA then appealed to the Tulania Court of Appeals, were the judgment of the District 5

6 Court was reversed. In return, the NHL appeals that decision here to the Supreme Court of the United States of America. SUMMARY OF THE ARGUMENT This Honorable Court should reverse the decision of the Tulania Court of Appeals and hold that Scott s DATWA claims are preempted by the LMRA for the purpose of uniform interpretation of CBA s, and because the NHL has a critical interest in establishing uniform rules that can be consistently enforced. Additionally, this Honorable Court should reverse the decision of the Tulania Court of Appeals setting aside the arbitrator s award, because the League did not have a fiduciary duty to players, and no governing applicable public policy exists that would allow the Court to overturn an arbitrator s decision. 6

7 ARGUMENT I. MICHAEL SCOTT S CLAIMS UNDER MINNESOTA S DRUG AND ALCOHOL TESTING IN THE WORKPLACE ACT ARE PREEMPTED BY SECTION 301 OF THE NATIONAL LABOR MANAGEMENT RELATIONS ACT. The purpose of preemption is uniformity. The Labor Management Relations Act was enacted by Congress to prevent precisely the issue that this Court has before it today: the potential for conflicting interpretations and enforcements of a single collective bargaining agreement. This Court should reverse the ruling of the Court of Appeals and find that Section 301 of the Labor Management Relations Act preempts the NHLPA s claims. The Court of Appeals ruling that the NHLPA s DATWA claims are not preempted by Section 301 is subject to de novo review. Bogan v. General Motors Corp., 500 F.3d 828, 832 (8th Cir. 2007). A. 301 of the LMRA Supersedes State Regulatory Law in Favor of Uniform Interpretation of Collectively Bargained Agreements. This Court has consistently held that federal law exclusively governs suits under breach of Collectively Bargained Agreements (CBAs). See Allis-Chalmers v. Lueck, 471 U.S. 202, 213 (1985). Section 301 of the Labor Management Relations Act (LMRA) is the federal law that governs the National Hockey League s (NHL) CBA with the National Hockey League Players Association (NHLPA). Section 301, which states that [s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce may be brought in any district court of the United States having jurisdiction over the parties, preempts state-law claims if their resolution depends upon the meaning of a collective bargaining agreement. 29 U.S.C. 185(a) (2012); see also Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 406 (1988). This Court has so held this rule for federal preemption because 7

8 the application of state-law claims that are substantially dependent on the analysis of a CBA run the risk of inconsistent results since there could be as many state-law principles as there are States. Lingle, 486 U.S. at 406 (1988). As such, Section 301 s preemption power covers any state law claim that is inextricably intertwined with consideration of the terms of the labor contract or substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract. Lueck, 471 U.S. at 213, 220. Indeed, in cases such as this where a party attempts to challenge a collective bargaining agreement with state law, there is a presumption that the claim will be preempted that must generally be rebutted. Id. A circuit split currently exists concerning how to resolve a state-law claim that contemplates an existing CBA. The Seventh and Tenth Circuits have held that defenses based on collectively bargained agreements are relevant to ordinary preemption of state law claims brought in federal court. See Smith v. Colgate-Palmolive Co., 943 F.2d 764, (7th Cir. 1991); Fry v. Airline Pilots Ass n, 88 F.3d 831, 838 n.8 (10th Cir. 1996) ( [T]he general rule [is] that if a CBA must be interpreted to resolve the claim, even if the CBA interpretation is initiated by the defense, the federal court must hold the claim preempted by 301. ). In Fry, the Seventh Circuit held that a group of pilots state law claims, based on the theory that the airline reneged on its responsibility to protect them from union members for their work during strike, required reference to a collective bargaining agreement and was thereby preempted by the federal Railway Labor Act. See Fry, 88 F.3d at 835 (adopting the Lingle standard for determining 301 of the Labor Management Relations Act preemption claims for RLA preemption claims). Similarly, the Tenth Circuit in Smith held that Colgate employees fraud claim was federally preempted by 301 of the LMRA because it would require 8

9 interpretation and application of the collective bargaining agreement regarding closure of the employer s plant. See Smith, 943 F.2d at 771. The Eighth Circuit, however, has adopted a two-step analysis for determining whether a claim is sufficiently independent enough to survive LMRA 301 preemption. See Bogan, 500 F.3d at 832. First, a court must determine whether a claim is based on a provision of the CBA itself, meaning that the CBA provision at issue sets forth the right upon which the claim is based. Williams v. National Football League, 582 F.3d 863, 874 (8th Cir. 2009) (quoting Trustees of the Twin City Brick Layers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 331 (8th Cir. 2006). Second, a court must determine if a state-law claim is dependent upon an analysis of the relevant CBA, meaning that the state-law requires interpretation of a provision of the CBA. Id. This Court should find the Seventh and Tenth Circuit persuasive, as they represent analyses most consistent with this Court s precedent requiring preemption of any state-law claims short of resolution that is completely independent of a collectively bargained agreement. Lingle, 486 U.S. at 406. In Lingle, this Court included in its analysis a) Michael Scott s Claims Cannot Be Resolved Without Reference to and Interpretation of the CBA. Michael Scott s Drug and Alcohol Testing in the Workplace Act (DATWA) claim cannot be resolved with purely factual questions about the NHL s conduct. While an otherwise independent claim will not always be preempted if the CBA need only be consulted during its adjudication, that is factually different from the case at bar. Here, Mr. Scott s state DATWA claim turns on the determination of the lawfulness of the CBA and the Policy. The foundational problem in the Circuit Court s no preemption ruling is that it turns on the question of whether 9

10 DATWA imposes requirements independent of the Policy and not whether those requirements could be enforced without reference to and interpretation of the Policy. Twin City Brick Layers, 450 F.3d at 330. DATWA expressly contemplates its being used to assess the requirements contained in a collective bargaining agreement. MINN. STAT. ANN Namely, the statute expressly states that nothing in [the statute] shall be construed to limit parties to a collective bargaining agreement from bargaining and agreeing with respect to drug and alcohol testing policies that meet or exceed the standards in the statute. Id. The lower court found that a factual analysis of the NHL s procedure could be undertaken in order to determine Mr. Scott s DATWA claim. This process would amount to purely factual questions not amounting to an interpretation of the CBA. See Hawaiian Airlines, Inc v. Norris, 512 U.S. 246, 261 (1994). However, any analysis of the NHL s procedure is inherently an analysis of the CBA, as the NHL only acted in its drug enforcement capacity pursuant to the CBA itself. Fundamentally, this factual analysis is really an as-applied test that utilizes the actions of the NHL pursuant to the CBA as a vehicle for challenging the contract agreement on a statutory basis. A state-law claim only survives preemption if it is independent of any analysis of a collective bargaining agreement. Lueck, 471 U.S. at 220. Thus, because the actions of the NHL, pursuant to the collectively bargained drug policy, are intertwined, the DATWA claim must be preempted. Mr. Scott s contention is that because he is employed in the state of Minnesota, the NHL s Policy must comply with certain provisions of DATWA that would make his suspension untenable. Notwithstanding the fact that this argument concedes the need for direct analysis of the Policy, this position in itself is untenable. The portions of DATWA relevant to Mr. Scott s claim are the provisions contemplating discipline and positive drug test protesting procedures. 10

11 See MINN. STAT. ANN But these provisions necessitate an analysis of the CBA Policy s definitions of discipline and protesting. For example, the opportunity to appeal the suspension to the Independent Arbitrator could count as Mr. Scott s opportunity to protest. This argument is also untenable because it would require Mr. Scott s use of the prohibited drug, Narcotussin, to be assessed by a Minnesota statute that does not even contemplate its existence in its text. Therefore, Mr. Scott s state-law claim should be preempted by 301 of the Labor Management Relations Act because it cannot be resolved without reference to and analysis of the Policy of the collective bargaining agreement. B. The NHL has a Critical Interest in Establishing Uniform Rules that can be Consistently Enforced. The National Hockey League has a defined interest in preventing any activities or conduct that would result in loss of public confidence in the honesty and orderly conduct of NHL games and the integrity and good character of the League and its players. This interest necessitates the creation of a uniform set of rules and regulations governing the conduct of all of its players and personnel, across state and jurisdictional lines. In adopting a collective bargaining agreement with the National Hockey League Players Association, NHL and its players link to create a uniform rule structure under which to be governed. This type of arrangement is specifically contemplated and advanced by Congress through its legislation. Federal law is the appropriate law for resolving disputes in professional sports collectively bargained agreements, as only federal presents the opportunity for uniform interpretation and application of the CBA among the various states. 11

12 Without the ability to enforce the agreed-to rules of the collective bargaining agreement, the NHL is inherently threatened with the possibility of individualized claims against its governing rules under differing interpretations in various state laws. Further, without the finality of a collectively bargained arbitration under a uniform Policy, the NHL runs the risk of losing its ability to prevent its members from using drugs that would erode the public trust and confidence in the integrity of the NHL, its games, and its players. a. A Single, Uniform Standard of Conduct is Precisely the Reason Congress Enacted Section 301 of the LMRA. In enacting Section 301 of the Labor Management Relations Act, Congress expressly intended for the interpretation of collective bargaining agreements to be necessarily uniform throughout the Nation. Lingle, 486 U.S. at 406. Congress correctly feared the possibility of uneven interpretation of singular contracts across state and jurisdictional lines that would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103 (1962) ( the subject matter of 301 is peculiarly one that calls for uniform law. ). The lower court s ruling against preemption is directly contrary to the reasoning behind 301 s enactment. It effectively cancels out the predictability of a uniform agreement that has been collectively bargained by subjecting it to the possibility of inconsistent interpretation across state lines. The practical effect of this is already plain in the procedural history of this case. Mr. Scott is the only remaining NHL athlete in this suit of the four athletes that were initially suspended for Narcotussin via the Policy. The other three athletes could not be party to the suit because their teams were not located in Minnesota, such that their claims would be covered under the Minnesota DATWA statute. Even if Mr. Scott were to prevail on his claim that the 12

13 Policy was unlawful according to Minnesota law, Stanley Hudson, Toby Flenderson, and Oscar Martinez would be subject to suspension for the same violation of the Policy that Mr. Scott had been cleared of. This uneven and inconsistent access to remedy is antithetical to the principal of uniformity that guided Congress s enacting of 301. b. Allowing DATWA to be Enforced Would Open the Floodgates for Individualized Claims Based on Interpretations of Various State Laws. In that same vein, the inconsistent interpretation of the NHL s Policy presents the potential for individualized claims like Mr. Scott s on a much larger scale. Without the predictability of a uniform set of rules by which all members of the NHL community abide, players and sports clubs would be free to circumvent collectively bargained agreements for competitive advantage or preferential treatment by simply seeking differing interpretations of their host state s laws. And not just professional hockey players and clubs every professional sports club and player would have an additional venue for redress of unfavorable rulings via collective bargaining agreements. The metaphorical floodgates would be opened, and all state courthouses across the country would be the new locations of judge-made revisions to professional sports league collectively bargained rules and procedures. Moreover, allowing state-law to supersede the NHL s CBA would put the NHL in the untenable position of either choosing whether to apply CBA policy or state-law on a case by case basis, or simply forgo CBA policy in its entirety whenever state-law contemplates the subject of the claim. Practically, allowing state-law to supersede the NHL CBA would leave the drafters of the CBA with the potentially impossible job of crafting a contract that fit neatly within the laws of all states with NHL teams. Without the prospect of uniformity and finality, the NHL s ability to enforce the terms of any negotiated CBA with arbitration would become an empty formality. 13

14 See, e.g., Lueck, 471 U.S. at 219 ( The need to preserve the effectiveness of arbitration was one of the central reasons that underlay the Court s holding in Lucas Flour. ); Lingle, 486 U.S. at 411 ( A preemption rule that permitted an individual to sidestep available grievance procedures would cause arbitration to lose most of its effectiveness. ). c. Without Uniform Federal Labor Law Practices, the NHL Would Lose its Ability to Enforce Drug Violations of it Players. Finally, the NHL relies heavily on its ability to enforce its rules and regulations in order to maintain public trust and confidence in the integrity of the NHL, its games, and its players. Section 301 s promise of uniformity for interpretation of collective bargaining agreements is of paramount importance here, as it is the anchor that holds down the order of the NHL s governance structure. Without this structure in place, the NHL would lose the power to maintain a fair and even playing ground for all of its teams. With that loss of power similarly comes a loss of individual accountability for NHL players who will face little to no penalty for violations of collectively bargained rules and procedures. Thus, without the strong doctrine of preemption guaranteed by Section 301 of the LMRA, the very livelihood and viability of the NHL as an institution is at risk. 14

15 II. THE COURT OF APPEALS ERRED IN FINDING THAT THE LEAGUE S REFUSAL TO ISSUE SPECIFIC PRODUCT WARNINGS VIOLATED PUBLIC POLICY, BECAUSE THE LEAGUE DID NOT HAVE A FIDUCIARY DUTY TO PLAYERS, AND THEIR ACTIONS WERE NOT IN VIOLATION OF AN EXPLICIT PUBLIC POLICY. The Court of Appeals erred in finding that the league s refusal to issue specific product warnings violated public policy, because the league did not have a fiduciary duty to players, and their actions were not in violation of an explicit public policy. Even if a fiduciary relationship existed, the league s actions did not create a breach of that fiduciary duty because the expectation of the League to issue specific product warnings is unreasonable and outside the scope of the defined relationship. Parties that have agreed to arbitration are, generally, bound by that arbitrators decision. However, the Federal Arbitration Act (FAA) allows a presiding court to set aside an arbitrator s award, if the award was procured by fraud, corruption, or undue means, or there was evident partiality or corruption in the arbitrators. 9 U.S.C.A. 10(a)(1) -(2) These factors as enumerated in the FAA are the only times in which a court can vacate an arbitrator s decision, making the court s authority to interfere in these contractually agreed upon decisions exceptionally narrow. See, Crawford Group Inc., v. Holekamp, 543 F.3d 971, 976 (8th Cir. 2008). Courts do not have the authority to reconsider the merits of an arbitration award as long as an arbitrator is at least arguably construing or apply the contract and acting within the scope of authority. R. at 10 (citing Stark v. Sandburg, Phoenix & von Gontard, P.C., 381 F.3d 793, 798 (8th Cir. 2004). A narrow exception exists where a court can overturn an arbitrator s decision if the policy in question, as interpreted by the arbitrator, violates some explicit public policy. See, W.R. grace 15

16 & Co. v. Local Union 759, Int l Union of the United Rubber, 461 U.S. 757, 66 (1983). Said public policy must be well defined and dominant ; the violation of a public policy must be clearly shown, and the policy must be identified based on existing laws and legal precedents. Id. It cannot be ascertained from general considerations of supposed public interests. Id. Within the context of New York law, which governs this issue, 1 the public policy exception must be narrowly read in light of the strong federal and New York public policies favoring resolution of labor disputes by arbitration, and New York State law reflects a strong public policy of encouraging, by judicial noninterference, an unfettered, voluntary arbitration system. See, Matter of Local 333, United Marine Div., v. New York City Dept. of Transp., 35 A.D.3d 211, (N.Y. App. Div. 2006); see also, Matter of Schreiber v. K Sea Transp. Corp., 30 A.D.3d 101, 106, (1st Dep't 2006). Here, The Appellate Court of Tulania should not have set aside the arbitrator s award to petitioners on the grounds that they violated a public policy by breaching their fiduciary duty to players, because petitioners did not have a fiduciary duty to players. Furthermore, there is no identifiable New York law holding that fiduciary breaches of this nature violate a public policy. A. There is no fiduciary relationship between the League and players. The respondents argue that a fiduciary relationship existed between the players and both the League and Schrute, and a fiduciary duty was breached when the League and Schrute did not issue a specific warning that SuperDope contained Narcotussin. R at Prompt 11n4 ( New York law governs this issue because the Policy is part of the NHL Collective Bargaining Agreement, which states that to the extent that federal law does not govern, the Agreement shall be governed by the internal law of the State of New York. ) 16

17 A breach of fiduciary duty requires proof of an existence of a fiduciary relationship between the parties in question, and a breach of duty flowing from that relationship. See, Henneberry v. Sumitomo Corp. of Am., 415 F. Supp. 2d 423 (S.D.N.Y. 2006). To determine whether a fiduciary relationship exists under New York law, courts must conduct a fact specific inquiry. Id. This fact specific inquiry can be used to determine whether one party reasonably relied on another party s superior expertise or knowledge. Id. More specifically, a fiduciary relation exists between two persons when one of them is under a duty to act or to give advice for the benefit of the other upon matters within the scope of the relation. See, Lumbermens Mut. Cas. Co. v. Franey Muha Alliant Ins. Servs., 388 F.Supp.2d292, 305 (S.D.N.Y.2005). A relationship of trust and confidence does not, by itself, create an independent duty owed from one party to another. See, Nat'l Westminster Bank, U.S.A. v. Ross, 130 B.R. 656, 679 (S.D.N.Y.1991) ( Where parties deal at arm s length in a commercial transaction, no relation of confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent extraordinary circumstances ). For example, being in contact with another party, working closely with them, and relying on them in relation to business matters does not create a fiduciary dutyjust a business relationship. See, Henneberry, 415 F. Supp. 2d at 442. The organizational structure of the NHL does not lend itself to the conclusion that a fiduciary relationship exists between the League and players. The NHL is a joint venture operation. See, Madison Square Garden, L.P. v. NHL, 2007 U.S. Dist. LEXIS (S.D.N.Y. 2007). Players are signed to, and report directly to teams, or member organizations that are independent and separate business[es]. Id. Therefore, if a fiduciary relationship did exist in this context, it would between a player and its direct employer- the independent team he is signed to; not the entirety of the NHL. 17

18 There is no law or legal precedent stating that a fiduciary relationship exists between a league of this structure and players. There are, however, several legal precedents that establish a fiduciary relationship between players and their agents, players and their unions, and players and their teams. See, Restatement (Third) of Agency, 1.01 (2006). For example, while leagues provide and promote lists of banned substances, it is the players agents who have a duty to inform their client of those banned substances before any abuse is committed. See, Duties of Sports Agents to Athletes and Statutory Regulation Thereof, Sports Law, US Legal, Players have- and should continue to reasonably rely on those individuals to look out for their interests as employed players, and their health and safety. The League as a whole, however, does not have the same duty to act and behave in a manner beneficial to individual players. The relationship between the League and players may be one of trust and confidence within the confines of their business relationship, but it does not extend to the level of a fiduciary relationship. B. Even if a fiduciary relationship existed between the parties, the League s actions in not issuing specific product warnings did not breach that fiduciary duty. Once a fiduciary relationship has been established, a duty to disclose will arise if one party has made a partial or ambiguous statement that only complete disclosure of facts will elucidate fully, or if a party possess superior knowledge, not available to the other party, knowing that the other party is acting on the basis of mistaken knowledge. See, Callahan v. Callahan, 127 A.D.2d 298, 300 (N.Y. App. Div. 1987). There is no indication that Schrute s duties as Independent Administrator extended to giving players specific warnings about every single drug, and it would be unreasonable for a 18

19 player to be believe the scope of representation extended that far. As Independent Administrator, Schrute s job duties included implementing the terms of the Policy, overseeing the drug testing procedures, making determinations regarding the method by which players are subjected to testing, educating the players regarding the implementation of the Policy, and reporting any positive test results to the Commissioner. R. at 3. There is no indication that educating players regarding the policies implementation included informing them of every single prohibited substance. On the contrary, Schrute s job also included implementing the terms of the Policy, and the Policy is very clear that players are responsible for themselves when it comes to prohibited substances. Id. In order to comply with his duty to players to educate them and make himself available for consultation with Players and Club physicians, Schrute testified that he would have informed players about SuperDope had they simply asked. R. at 9, 11. Schrute additionally sent out a general warning to players about taking sleep aid supplements. R. at 11. Schrute chose to issue a generalized warning because the whole sleep aid industry is problematic. Id. He also explained in the memo that he would provide players with additional information about sleep aid supplements throughout the year, but did at point give the indication that he would tell them about each and every prohibited substance. Id. Furthermore, he had previously only referenced sleep aid substances in a generalized manner. R. at 19. Given the language of the policy, and Schrute s generalized warnings to players, the perceived scope of his relation to players was very clear. His and the League s decision to fulfill their duty to players in this generalized manner, does not mean that they violated their duty. They still took an action with the goal of protecting players health and safety. It s unreasonable to assume that either Schrute or the League could infallibly handle the task of informing players every single time a drug came out that contained a 19

20 prohibited substance; such an expectation would create an undue burden or standard of dependency. Plus, given that they were provided numerous warnings about taking sleep aid supplements, players concerned about their explicitly stated personal responsibility could have taking the time to ask whether SuperDope, a sleep aid supplement, contained a prohibited substance before using it. Furthermore, the League did not hold itself out as the sole authoritative figure in determining and informing players of prohibited substances. The League instead encouraged players to contact Dietary Advisors to help them determine products that could contain prohibited substances. R. at 7. Players also have agents, their union, and team doctors who they can rely on to abide by the regulations of the Policy. If anything, the players here should be more concerned about the fact that their union, which jointly negotiated the CBA with the NHL, were not looking out for their interests, and did not fight make it clear in The Policy who players should be reliant on when it comes to adhering to The Policy provisions. Id. NHLPA also was aware that the distributors of SuperDope became a banned company, and did nothing to clarify on behalf of the players whether SuperDope would cause problems. R. at 4. While it is possible that players would not have consumed SuperDope had they been directly told not to by the League, players are still personally responsible for any substance that enters their body under the Policy, regardless of whether they knew. Id. Plus, it is likely that if told not to take SuperDope, players would have simply chosen another sleep aid supplement instead, opening themselves up to the same health and safety concerns. With these two things in mind, it is questionable how much these players were actually harmed by the League s actions, and whether their harm would have occurred regardless. Additionally, if it were the case that players had to be informed of every single product that contained a prohibited substance, there 20

21 would be no need for the Policy to emphasize that players are responsible for what is in their bodies regardless of whether they knew they were taking a prohibited substance or the reiterated emphasis on strict liability. R. at 7. C. No Explicit Public Policy Exists In Relation To the League s Conduct That Would Allow A Court To Overturn The Arbitrator s Decision. The players assert that public policy mandates that arbitration awards that condone breach of fiduciary duty be vacated. R. at 10. However, the players have not identified or referenced any specific public policy that was violated by the League s actions. There is no indication that a well defined and dominant, or explicit law in New York governs breaches of fiduciary duty in this current context. While New York law arguably views a breach of fiduciary duty between directors of a corporation to shareholders as public policy concern, public policy violations must be explicit and specified, and this New York statute address fiduciary duties specifically within the shareholder context. See, Tzolis v. Wolff, 39 A.D.3d 138, 42 (E.D.N.Y. 2007) (citing NY Senate Bill S6222). Furthermore, several states have held that a generalized concern with fiduciary duty does not meet the public policy standard, nor does a law that talks about fiduciary duty within a context not applicable to the current situation. See, e.g., Merrick v. Cummin, 100 Conn. App. 664, 70 (Conn. App. Ct. 2007). There would be no need for a public policy creating liability of a league to players in the league, when players have agents, team management, and union that the rely on and that look out for their interests. Unlike agents, individual teams and unions, the League as a whole has a duty to its shareholders, and to maintaining the integrity of the association, as well as public confidence. Given these duties, Scrhute and the League s actions of enforcing strict liability of the Policy, holding players personally responsible for any violation of the Policy, and making sure they were not liable to players to warn them of every potential Prohibited Substance violation makes perfect sense. 21

22 Furthermore, the Policy as written is nearly identical in language to the World Anti- Distribution Agency s (WADA) World Anti-Doping Code. See, World Anti-Doping Code, Art. II: Anti-Doping Rule Violations ( It is each Athlete s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible... it is not necessary that intent, fault, negligence or knowing Use on the Athlete s part be demonstrated in order to establish an antidoping violation... ). To say that The Policy here is violative of public policy would be to say that the international standard for prohibited substances in sports if violative. Leagues like the NHL, who send athletes to the Olympics and other world championships, essentially have to have anti-doping policies that are at least as stringent as WADA policy, so their players can compete without breaking international regulations. Additionally, the League s actions are in line with general public policy principles that attempt to look out for the health and safety of individuals, as the League repeatedly warned players about risks of using sleep inducing supplements like SuperDope. CONCLUSION For the forgoing reasons, Petitioners respectfully requests this Honorable Court REVERSE the decision of the Appellate Court of Tulania. 22

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