Docket No. 11-CV In the SUPREME COURT OF THE UNITED STATES OF AMERICA

Docket No. 11-CV-1215 In the SUPREME COURT OF THE UNITED STATES OF AMERICA AVON BARKSDALE, OMAR LITTLE, and STRINGER BELL, individually and on behalf of all others similarly situated, Petitioners, v. NATIONAL BASKETBALL ASSOCIATION Respondents. ON A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ORIGINAL BRIEF ON BEHALF OF THE NATIONAL BASKETBALL ASSOCIATION Respondents. Team 2

TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii QUESTIONS PRESENTED...1 STATEMENT OF THE CASE...1 I. Statement of Facts...1 II. Proceedings Below...5 SUMMARY OF ARGUMENT...6 STANDARD OF REVIEW...7 ARGUMENT...9 I. The District Court Relied Upon Inaccurate Reasoning and Insufficient Grounds to Vacate the Arbitration Award and, Therefore, the Commissioner s Decision Should Be Upheld...9 A. The Collective Bargaining Agreement Provided Petitioner Adequate Notice of the Potential Consequences of His Detrimental Conduct...10 1. Adequate Notice of Wrongdoing...10 2. Adequate Notice of Possible Punishment...12 B. The Commissioner Did Not Violate Fundamental Fairness in Excluding the Testimony of the NBA General Counsel...15 II. The NBA Lockout Is Protected From Antitrust Scrutiny...17 A. The NSLE Still Applies Despite the NBPA s Decertification...17 B. How Decertification Can Be Used to Invoke Antitrust Scrutiny...21 CONCLUSION...22 i

TABLE OF AUTHORITIES CASES Page(s) Barksdale, et al., v. Nat l Basketball Ass n, USCA No. 11-831720, *26 n.8 (8th Cir. 2016)...6, 7, 10, 11, 12, 13, 14, 15, 19 Brown v. Pro Football Inc., 518 U.S. 231 (1996)...17, 18, 19, 20 Credit Suisse v. Billing, 551 U.S. 264 (2007)...18 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)...7, 9 Kaplan v. Alfred Dunhill of London, 5 Inc., 1996 U.S. Dist. LEXIS 16455...9 LJL 33rd St. Assocs., LLC v. Pitcairn Props. Inc., 725 F.3d 184 (2d Cir. 2013)...15 Local 1199, Drug, Hosp. and Health Care Employees Union v. Brooks Drug Co., 956 F.2d 22 (2d Cir.1992)...8 Major League Baseball Players Ass n v. Garvey, 532 U.S. 504 (2001)...13 Mitsubishi Motors Corp. v. Soler Chrysler Plymouth, Inc., 473 U.S. 614 (1985)...7 Saint Mary Home, Inc. v. Serv. Employees Int'l Union, Dist. 1199, 116 F.3d 41 (2d Cir. 1997)...8, 9 Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16 (2d Cir. 1997)...16, 17 United Paperworkers Int l Union, AFL-CIO, v. Misco, Inc., 484 U.S. 29 (1987)...9 Vic Tanny Int'l, Inc. v. NLRB, 622 F.2d 237 (6th Cir. 1980)...19 Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29 (2d Cir.1997)...8 ii

STATUTES 9 U.S.C. 10(a)(1) (3)...8 iii

QUESTIONS PRESENTED I. Did the District Court err in vacating the Arbitration Award? II. Did the District Court err in finding that the lockout was not protected from antitrust scrutiny by the NSLE? STATEMENT OF THE CASE I. Statement of Facts a. Arbitration Award NBA officials undertook an extensive investigation into the circumstances surrounding the Tune Squad s alleged use of seemingly under-inflated basketballs during the first half of game 7 of the Western Conference Finals. R.1. On June 1, 2016, the NBA publicly announced that it had retained Maurice Levy and his law firm to conduct an independent investigation, together with NBA General Counsel, Cedric Daniels. R.1. The Investigation was conducted pursuant to the NBA Policy on Integrity of the Game & Enforcement of Competitive Rules, dated February 11, 2014 ("Competitive Integrity Policy"). R.2. At the end of the Investigation, Levy compiled a written report ( Levy Report ). R.2. The report included an account of an official using a pressure gauge and determining that the basketball in question was inflated to approximately 11 psi, i.e., below the range of 12.5 to 13.5 psi specified in Rule 2, Section I of the 2014 NBA Official Playing Rules ("Playing Rules"). R.2. NBA officials collected and tested eleven Tune Squad game balls and four Monstars game balls at halftime and concluded that all eleven of the Tune Squad's game balls measured below 12.5 psi. R.2. The Monstars balls were all inflated within the proper range and used in the second half of the game. R.2. 1

On July 15, 2016, the findings of the Levy Report were made public. R.2. The Investigation included reviews of player equipment, security footage, text messages, call logs, emails, press conferences, League rules and policies, and interviews with no less than sixty-six Tune Squad and NBA personnel. R.2. The Levy Report concluded, "in connection with game seven of the Western Conference Finals, 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." Levy Report at 2. It 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 basketballs, "participated in a deliberate effort to release air from Tune Squad game balls after the balls were examined by the referee [on May 30, 2016]." Id. As to Barksdale, the Levy Report concluded that "it is more probable than not that 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 17. The Levy Report also concluded that "it is unlikely that an equipment assistant and a locker room attendant would deflate game balls without Barksdale's knowledge and approval." Id. at 19. The Levy Report acknowledged that "there is less direct evidence linking Barksdale to tampering activities than either McNulty or Moreland." Id. at 17. Barksdale has denied any knowledge or involvement in any efforts to deflate game balls after the pre-game inspection by the game officials. R.3. On July 18, 2016, William Rawls, NBA Executive Vice President, sent a "disciplinary decision" letter to Barksdale ( Rawls Letter or Letter ), stating: "your role in the use of under-inflated basketballs by Tune Squad in game seven of the Western 2

Conference Finals... represents a violation of longstanding playing rules developed to promote fairness in the game." Rawls Letter at 1. The Rawls Letter informed Barksdale that "pursuant to the authority of the Commissioner under Article 46 of the CBA and the NBA Player Contract, you are suspended without pay for the first four games of the 2016-17 regular season." Id. at 2. Barksdale, through the NBA Players Association ( NBPA ), immediately appealed the four-game suspension. R.3. He also moved to compel the testimony of NBA General Counsel Cedric Daniels at the arbitral hearing because Mr. Daniels had been designated co-lead investigator alongside Maurice Levy. R.3. On July 22, 2016, Commissioner Burrell denied the motion to compel the testimony of Daniels "[b]ecause Article 46 of our CBA does not address the permitted scope of witness testimony at appeals hearings, 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." Def. s Countercl, Ex. 208 at 1. Burrell stated that "Cedric Daniels, does not have any first-hand knowledge of the events at issue here. Nor did he play a substantive role in the investigation that led to Mr. Barksdale s discipline; his role was limited to facilitating access by Mr. Levy to witnesses and documents." Id. at 2. The Commissioner conducted an arbitration appeal hearing on July 25, 2016. One week later, he published his twenty-page Award and Final Decision on Article 46 Appeal of Avon Barksdale ( Award ), which upheld the four-game suspension. R.3. In the Award, Commissioner Burrell concluded as follows: "(1) Mr. Barksdale participated in a scheme to tamper with the game balls after they had been approved by the game officials, 3

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." Award at 13. "All of this indisputably constitutes conduct detrimental to the integrity of, and public confidence in, the game of professional basketball. Id. b. Lockout The Barksdale Plaintiffs are three professional basketball players who have been employed by the Defendants, the NBA and the thirty separately owned NBA teams. R.3. The NBA operates as a multiemployer bargaining unit in the business of putting on professional basketball exhibitions. R.3. The Barksdale Plaintiffs filed this lawsuit on behalf of themselves and similarly situated players alleging antitrust violations based on the Defendants' actions of imposing a lockout or a group boycott of the players; they seek injunctive relief. R.3. The rules and policies of the NBA are contained in the NBA s CBA. The most recent CBA expired at 11:59 p.m. on October 11, 2016, after the NBA had exercised its option to opt out of the final two years of the agreement. R.4. The owners and players, including the Plaintiffs and their union, the NBPA, continued to attempt and to negotiate a new CBA up until the day of the deadline. R.4. The NBPA and the players hoped to negotiate a new personal conduct policy in order to prevent the discipline situation involving Barksdale from happening again. R.4. The NBPA decided to end the collective bargaining status of their union by disclaiming its interest in representing the players. R.4. At 4 p.m. on October 11, 2016, a mere eight hours before the CBA expired, the NBPA informed the NBA of its decision to 4

disclaim any interest in representing the players, including the Barksdale Plaintiffs, in further negotiations. R.4. After this notice, the NBA filed an unfair labor practice claim with the National Labor Relations Board ( NLRB ) alleging that the NBPA disclaimer of interest was a sham because the disclaimer and subsequent filing of this action were merely intended to be used as leverage at the bargaining table and part of the collective bargaining process. R.4. By that time the NBPA had also amended its bylaws to prohibit its members from engaging in collective bargaining with the NBA, individual teams, or their agents. R.4. The NBPA notified the NLRB to terminate its status as a labor organization and additionally filed an application with the Internal Revenue Service to be reclassified for tax purposes as a professional association. R.4. In its notice on October 11, 2016, the NBPA also informed the NBA that it would no longer represent players in grievances under the soon-to-expire CBA. R.4. Upon the actual expiration of the CBA at 11:59 p.m. on October 11, 2016, the NBA instituted the lockout effective October 12, 2016, which prevented all NBA player employees from working. R.4. The Barksdale Plaintiffs filed a complaint the same day the lockout began, October 12, 2016. R.4 II. Proceedings Below This appeal represents two consolidated actions. First, Petitioner Avon Barksdale brought suit to overturn the arbitration ruling upholding his discipline as a result of the NBA s decision to discipline him for conduct detrimental to the League under Article 46 of the CBA. Barksdale claims that he was not provided with adequate notice that the behavior in question (i) violated the CBA, and (ii) was punishable by suspension. 5

Furthermore, Petitioner argued that he was wrongfully denied the opportunity to examine one of the two lead investigators. Second, the Players Association (NBPA) brought an action against the NBA as a result of the NBA s decision to lock out the players after the CBA expired. The Petitioners claim that the lockout is a violation of the Sherman Act and is not covered under the NSLE exception because the collective bargaining relationship had ended. The District Court vacated the arbitration award (and associated four-game suspension of Petitioner Barksdale). The District Court also found that the lockout was an unlawful restraint of trade in violation of the Sherman Act, adding that the collective bargaining relationship between the NBA and the Petitioners had ended. On appeal to the Eighth Circuit, the Appeals Court reversed the District Court s holding on both counts, (i) reinstating the arbitration award (and associated suspension) and (ii) finding that the lockout is protected from antitrust scrutiny. SUMMARY OF ARGUMENT In overturning the Arbitrator s award, the District Court relied upon inaccurate information, leading it to overstep its bounds and artificially meet the high burden imposed on it by preexisting case law. The Collective Bargaining Agreement provided Petitioner adequate notice of the potential consequences of his detrimental conduct. Article 46 of CBA clearly prohibits conduct detrimental to the League. Barksdale, et al., v. Nat l Basketball Ass n, USCA No. 11-831720, *26 n.8 (8th Cir. 2016). Here, the findings by the Commissioner that Petitioner doctored equipment to gain a competitive advantage and subsequently 6

destroyed potentially incriminating evidence to interfere with the investigation are clearly detrimental to the League and punishable by the Commissioner. Id. Furthermore, not only was the conduct foreseeably wrong under the CBA, it was subject to punishment under intentionally broad language, leaving the punishment up to the Commissioner. In fact, it is a classic duty of the Arbitrator, not the Courts, to determine the appropriate nature of punishments. Given the highly fact-intensive nature of an award decision, the court may not overrule the Arbitrator s decision if it was even arguably construing or applying the contract and acting within the scope of his authority. Id. at *20 (quoting Misco, 484 U.S. at 38). Essentially, the award must be upheld unless the arbitrator is attempting to enact his own brand of arbitral justice. Id. Because the Commissioner s decision is rooted in the CBA, it should be allowed to stand. Furthermore, the lockout is protected from the scrutiny of antitrust laws because the NSLE exception applies. Even though the NBPA was decertified, the situation here is not sufficiently distant in time and in circumstances from the collective bargaining process to justify antitrust action. STANDARD OF REVIEW The Supreme Court will review the case at hand de novo. With the enactment of the Federal Arbitration Act, there is an emphatic federal policy in favor of arbitral dispute resolution. Mitsubishi Motors Corp. v. Soler Chrysler Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). In order to ensure such a preference is more than merely illusory, [ju]dicial scrutiny of arbitration awards... is limited.... Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct. 1647, 1655, 114 L. Ed. 2d 26 (1991) (quoting Shearson/Am. Express Inc. 7

v. McMahon, 482 U.S. 220, 107 S. Ct. 2332, 2340, 96 L. Ed. 2d 185 (1987)). In fact, an arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached. Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29, 31 32 (2d Cir.1997). The Federal Arbitration Act lists four acceptable grounds for vacating an arbitration award: the award was procured by fraud, corruption or undue influence, clearly evident partiality, misconduct on behalf of the arbitrator, and the arbitrator exceeding his or her power in granting the award. 9 U.S.C. 10(a)(1) (3). Petitioner has not alleged fraud or corruption, and has provided no evidence of bias. Therefore, absent some additional, non-statutory reason based in public policy, Petitioner must show that the Commissioner failed to hear necessary evidence or was not authorized to issue a four-game suspension. When deciding whether to admit evidence, an arbitrator is not bound by the Federal Rules of Evidence; in fact, there is no need to comply with strict evidentiary rules. Instead, the arbitrator wields substantial discretion to admit or exclude evidence. If that evidence is unlikely to have had an impact on the arbitrator s Similarly, an arbitrator is granted significant leeway in terms of the award he or she may grant. The purpose and benefit of arbitration is to allow the parties to tailor a grievance procedure that best suits the way in which the parties are situated. As a result, the principle question for the reviewing court is whether the arbitrator s award draws its essence from the collective bargaining agreement. Saint Mary Home, Inc. v. Serv. Employees Int'l Union, Dist. 1199, 116 F.3d 41, 44 (2d Cir.1997). Therefore, [t]he scope of authority of arbitrators generally depends on the intention of the parties to an arbitration, and is determined by the agreement or submission. Local 1199, Drug, Hosp. 8

and Health Care Employees Union v. Brooks Drug Co., 956 F.2d 22, 25 (2d Cir.1992). An arbitrator is permitted to craft what he or she believes to be the most appropriate award and that award shall be upheld as long as the arbitrator is not merely dispens[ing] his own brand of industrial justice. Saint Mary Home, Inc., 116 F.3d at 44. ARGUMENT I. THE DISTRICT COURT RELIED UPON INACCURATE REASONING AND INSUFFICIENT GROUNDS TO VACATE THE ARBITRATION AWARD AND, THEREFORE, THE COMMISSIONER S DECISION SHOULD BE UPHELD. As stated above, [j]udicial scrutiny of arbitration awards... is limited.... Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct. 1647, 1655, 114 L. Ed. 2d 26 (1991) (quoting Shearson/Am. Express Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332, 2340, 96 L. Ed. 2d 185 (1987)). In order to vacate an arbitration award, the court must find that an award [was] obtained without the requisites of fairness or due process. Kaplan v. Alfred Dunhill of London, 5 Inc., No. 96 Civ. 259 (JFK), 1996 U.S. Dist. LEXIS 16455, 1996 WL 640901, at *7 (S.D.N.Y. Nov. 4, 1996). In fact, as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision. United Paperworkers Int l Union, AFL-CIO, v. Misco, Inc., 484 U.S. 29, 38, 108 S. Ct. 364, 371, 98 L. Ed. 2d 286 (1987). Here, however, the District Court took it upon itself to draw unacceptable conclusions from the record, relying upon inaccurate assumptions that led to a foundation for vacating the Commissioner s award that was insufficient to meet its high burden. Primarily, the court found that Petitioner lacked adequate notice that his actions could have led to the punishment he received and that the Commissioner should have allowed the testimony of 9

the NBA General Counsel. With proper deference to the findings of the arbitrator, the Court should affirm the Commissioner s award. A. The Collective Bargaining Agreement Provided Petitioner Adequate Notice of the Potential Consequences of His Detrimental Conduct 1. Adequate Notice of Wrongdoing First, Petitioner had full knowledge that his actions were in violation of the CBA. After the arbitrations proceedings concluded, the Commissioner found Petitioner participated in a scheme to tamper with game balls after they had been approved by the game officials for use in the game. Barksdale, et al. v. Nat l Basketball Ass n, USDC No. 11-CV-1215, at *8, n.3 (Dist. Tulania Oct. 25, 2016) (quoting Award and Final Decision on Article 46 Appeal of Avon Barksdale at 13). The Commissioner went on to find that, even if Petitioner did not himself tamper with the equipment, he knew about, approved of, consented to, and provided inducements and rewards to those who committed the wrongdoing. Id. In what the Commissioner found to be an attempt to cover up his wrongdoing, Petitioner also obstructed access to potentially incriminating evidence by destroying his cell phone. Id. at 3. As a result of this conspiracy to doctor equipment in order to gain an improper competitive advantage and the subsequent spoliation to cover it up, the Commissioner ruled that Petitioner had engaged in conduct detrimental to the League, and punished him pursuant to the Article 46 of the CBA. See, Rawls Letter at 2 (July 18, 2016) (Stating the punishment was decided pursuant to the authority of the Commissioner under Article 46 of the CBA and the NBA Player Contract.... ). On appeal, however, the court dismisses the Commissioner s factual findings and instead substitutes its own opinion that found there was no notice of any discernable 10

infraction by Petitioner. Barksdale, USDC No. 11-CV-1215 at *7. In overturning the arbitration award, the District Court ignores the Commissioner s stated reasoning for punishing Petitioner and, instead, concludes that Petitioner was punished solely for a general awareness of the misconduct of others. Id. at *7 8. In doing so, the court vastly exceeded it powers of review. The court reached this conclusion from a line in the investigator s report stating, [Petitioner] was at least generally aware of the inappropriate activities of [the equipment staff] involving the release of air from game balls. Id. at *8. Not only does the court conveniently ignore the use of at least in the report s conclusion, it exaggerates the impact and purpose of the investigator s report. The investigative report is a tool for objectively presenting the facts; it is not meant to reach conclusions about the parties guilt or innocence. That job, instead, falls to the arbitrator. This report was merely one piece of evidence that the arbitrator considered in coming to his conclusion that Petitioner engaged in a conspiracy to gain a competitive advantage. It is the arbitrator s ruling, and not the factional determination of the court, that holds. Therefore, the District Court erred in valuing the conclusion of the investigative report over the stated conclusions of the Commissioner in the arbitration award. Petitioner further tortures the Commissioner s express logic in arguing that the arbitration award should, instead, have been based off of the Other Uniform/Equiptment Violations section of the Player Policies. Id. Since no evidence is provided to support this claim, it seems this conclusion is reached solely because Petitioner s cheating involved equipment. Ignoring that this provision is never mentioned in the Award, Petitioner s logic simply does not hold. If Petitioner were correct, a player who assaults a 11

fan in the stands by throwing a ball at her would be constrained to punishment only under this equipment tampering provision. Such a reading would make the CBA s provision for conduct detrimental superfluous. Instead, the Court should look only to the express reasons for punishment given by the arbitrator. The District Court properly recites that the "principal question for the reviewing court is whether the arbitrator's award draws its essence from the [CBA]. Id. at *4 (quoting 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 527 (2d Cir. 2005) (citation omitted)). The Commissioner expressly stated that he drew his punishment from the conduct detrimental provision of the CBA. Petitioner either had or should have had notice that his actions would be a violation of that provision and within the power of the Commissioner to punish under the CBA. Therefore, the District Court erred in finding Petitioner lacked adequate notice that his conduct was actionable under the CBA. 2. Adequate Notice of Possible Punishment Second, the CBA provided Petitioner ample notice that the Commissioner was granted broad powers to punish player misconduct. The agreement clearly demonstrates that the parties intended to provide a broad framework for the Commissioner to follow on a case-by-case basis, rather than attempt to contemplate every possible infraction and its appropriate punishment. The District Court, however, ignored the language of the document, the intentions of the party, and the judicial standard of review, and, instead, fixated on a tangential analogy to justify vacating the arbitration award. As the Eighth Circuit observed in overturning the lower court s ruling, Determining the severity of a penalty is an archetypal example of a judgment committed to an 12

arbitrator's discretion. Barksdale, et al., v. Nat l Basketball Ass n, USCA No. 11-831720, *26 n.8 (8th Cir. 2016). Given the highly fact-intensive nature of an award decision, the court has no grounds to overrule the arbitrator s decision if he was it even arguably construing or applying the contract and acting within the scope of his authority. Id. at *20 (quoting Misco, 484 U.S. at 38). In short, the award must be upheld unless the arbitrator is attempting to enact his own brand of arbitral justice. Id. Here, however, the Commissioner was acting well within his powers granted under the CBA when he issued Petitioner a four-game suspension. Article 46 of the CBA grants the Commissioner the power to take disciplinary action deemed necessary in response to conduct detrimental to the League. See id. at *21. Even under the 2014 Schedule of Fines, which Petitioner argues should apply, the CBA provides that [o]ther forms of discipline, including higher fines and suspension may also be imposed, based on the circumstances of the particular violation. Id. at *22. Considering the Commissioner s findings that Petitioner s conduct was severe and coupled with attempts to conceal incriminating information, there was no serious error in this award. See Major League Baseball Players Ass n v. Garvey, 532 U.S. 504, 5010 (2001) ( But even serious error on the arbitrator's part does not justify overturning his decision, where, as here, he is construing a contract and acting within the scope of his authority. ) (internal citation omitted). As such, Petitioner had notice that such a punishment was possible given his actions. Despite this, the District Court vacated the award, merely because of a brief analogy mentioned in passing by the Commissioner. In determining the proper punishment for Petitioner s misconduct, the Commissioner noted that steroid use was the 13

most comparable effort by a player to secure an improper competitive advantage and (by using a masking agent) to cover up the underlying violation. Barksdale, USDC No. 11- CV-1215 at *5 (quoting Award at 16). The Commissioner never stated that the steroid policy was used as a basis to calculate Petitioner s punishment. This statement was made simply to note that Petitioner s punishment was fully consistent with, if not more lenient than the consequences for similar action. Id. In short, that Petitioner should have been on notice that a suspension was likely if he were caught. Even if the Commissioner had used the steroid policy as a point of comparison, however, doing so is not grounds for vacating the award. The grievance procedure s purpose is to give broad, discretionary powers of punishment to the Commissioner, within the framework established by the CBA. Notice does not require that the CBA anticipate every possible rule infraction and delineate specific and rigid punishments for each instance; nor does it constrain the thought process of the arbitrator in deciding the most equitable punishment. As the circuit court stated, While [Petitioner] may have been entitled to notice of his range of punishment, it does not follow that he was entitled to advance notice of the analogies the arbitrator might find persuasive in selecting a punishment within that range. Barksdale, USCA No. 11-831720 at *23. It is not within the Court s power to review the accuracy of whatever analogies the arbitrator may have chosen to use. So long as the Commissioner was even arguably construing or applying the contract and acting within the scope of his authority, the award must be affirmed. Misco, 484 U.S. at 38. 14

B. The Commissioner Did Not Violate Fundamental Fairness in Excluding the Testimony of the NBA General Counsel Prior to arbitration, the Commissioner denied Petitioner s motion to compel the testimony of the NBA General Counsel Cedric Daniels, ruling it would be irrelevant and repetitive. See Barksdale, USCA No. 11-831720 at *26 27. While the Commissioner noted he would allow Petitioner to renew the objection if he could provide more evidence of the necessity of this testimony, Petitioner failed to do so. Id. at *27. On appeal, the District Court held that it was fundamentally unfair to exclude Daniels testimony, stating only that he would be able to speak to the independent nature of the investigation. Barksdale, USDC No. 11-CV-1215 at *10 ([Petitioner] was foreclosed from exploring whether the Daniels/Levy Investigation was truly independent, and how and why the NBA General Counsel came to edit a supposedly independent investigation report. ) Given that the CBA does not require independence in an investigation and, therefore, the Mr. Daniel s testimony would have been irrelevant, the Court should uphold the Commissioner s ruling. As arbitrator, the Commissioner is granted substantial discretion to admit or exclude evidence. LJL 33rd St. Assocs., LLC v. Pitcairn Props. Inc., 725 F.3d 184, 194 95 (2d Cir. 2013). The Commissioner is not guided by the Federal Rules of Evidence, but, rather, the parties agreement in the CBA. See, e.g., Id. at 194 ( While it is indisputably correct that arbitrators are not bound by the rules of evidence and may consider hearsay, it does not follow that arbitrators are prohibited from excluding hearsay evidence.... ). A decision to exclude evidence can only be the ground for vacating a decision only if fundamental fairness is violated. Barksdale, USCA No. 11-831720 at 15

*27 n.9 (noting neither party contests the applicability of the fundamental fairness standard); Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997). Here, the Commissioner excluded Daniels testimony for the simple reason that he had nothing of relevance to offer. Barksdale, USDC No. 11-CV-1215 at *3 ( Cedric Daniels does not have any first-hand knowledge of the events at issue here. Nor did he play a substantive role in the investigation that led to Mr. Barksdale s discipline.... ). Though Daniels was the NBA General Counsel, it was Levy and his law firm that were brought on board to conduct the investigation and prepare the report on Petitioner s misconduct. Id. Daniel s role was limited to facilitating access by Mr. Levy to witnesses and documents. Id. While Daniels reviewed and offered comments on Levy s findings, Levy testified these comments had no impact of the final report presented to the Commissioner. Id. at *10 ( Levy said Daniels played no substantive role in the investigation and any comments he gave on the report did not change the findings ) (emphasis in original). Since both Levy and Rawls testified, the Commissioner ruled that Daniels could provide no further insight into the truth of Petitioner s alleged misconduct. The District Court, however, claims that Petitioner was foreclosed from exploring whether the Daniels/Levy Investigation was truly independent, and how and why the NBA General Counsel came to edit a supposedly independent investigation report. Id. This position, however, ignores the role of the Commissioner as ultimate fact finder. It is the responsibility of the arbitrator to receive evidence and determine what is believable and what is not. As stated above, the investigative report is merely one tool; it does not alone determine guilt or innocence. There is nothing to suggest that the Commissioner would be unable to detect bias or falsehoods within Levy s report. 16

Moreover, it is highly unlikely that the testimony of someone inside the league would elucidative on this issue. The Commissioner was, therefore, rightfully applying his endowed... discretion to admit or reject evidence and determine what materials may be cumulative or irrelevant. Id. (internal citation omitted). Additionally, even if Daniels could provide insight into the independence of Levy s investigation, such testimony would be irrelevant under the CBA. The District Court overlooks that there is no right in the CBA to an independent investigation. To assumer otherwise improperly reads a very significant term into the parties agreement, since it would logically extend that any player accused of misconduct could demand an independent investigator be appointed and monitored for bias. The parties would have been explicit if they had intended such a major step in the grievance procedure. Since they were not, one must assume that the CBA does not require an independent investigation. As such, Daniels testimony regarding Levy s independence would be irrelevant. Given the cumulative and irrelevant nature of the testimony, coupled with Petitioner s failure to renew his objection with evidence proving it necessary, the Court should rule the Commissioner s decision to exclude Daniels as a witness was proper. II. THE NBA LOCKOUT IS PROTECTED FROM ANTITRUST SCRUTINY A. The NSLE Still Applies Despite the NBPA s Decertification The NSLE insulates certain decisions of multi-employer bargaining units (like the NBA and most major sports leagues) that might otherwise be anti-competitive. See Brown v. Pro Football Inc., 518 U.S. 231, 237 (1996). The exemption is designed to maintain stability and certainty within the collective bargaining process and reflects 17

Congress's intent to prevent parties from shifting to antitrust law to resolve labor disputes. See id. at 242 (discussing the inappropriate use of antitrust law to resolve labor disputes). Petitioners here, cannot show that the current decertification invalidates the NSLE and allows the NBPA to avail itself of antitrust law. First, Petitioners cannot demonstrate that the situation here is sufficiently distant in time and in circumstances from the collective bargaining process. They filed this lawsuit the same day the union discontinued collective bargaining; they seek relief concerning terms and conditions of employment; and they cannot dispute the close temporal and substantive relationship linking this case with the labor dispute between the NBA and the NBPA. Petitioners' answer is that their decertification changes everything. But that ignores the obvious fact that a rule permitting instantaneous assertion of antitrust liability at the moment of decertification would sound the death knell for multiemployer bargaining and is irreconcilable with Brown. If Petitioners prevail here, decertification would become the tactic of choice at or even before impasse, resulting in disincentives for employers to engage in multiemployer bargaining in the first instance, and for unions to bargain in good faith. If Petitioners prevail, decertification will become the official impasse in multiemployer bargaining. Federal labor law and policy would not be served by an immediate antitrust cause of action. Supporting and favoring multiemployer collective bargaining process and its many benefits, See id. at 240 (discussing the benefits of collective bargaining), requires more breathing room than that. Cf. Credit Suisse v. Billing, 551 U.S. 264, 276 (2007) (recognizing that the joint underwriting process encouraged by the securities laws would be frustrated by imposing antitrust liability for colluding in the underwriting 18

process). As long as a negotiated bargaining agreement remains a prospect, Brown's labor exemption should continue to apply to the actions of what the labor laws deem a multiemployer bargaining unit, the formation and preservation of which is encouraged by federal labor policy. See Brown, 518 U.S. at 240. Petitioners also contend that the exemption must dissolve at the instant of disclaimer on a theory which must require that once employees renounce their union and give up their labor-law right to strike collectively without violating the antitrust laws, the employer's corresponding ability to lock out necessarily loses its derivative protection. But, as the Sixth Circuit held, employers faced with organized actions by non-unionized employees have the same options available to [the]m that would have been available to an employer faced with an economic strike by unionized employees. Vic Tanny Int'l, Inc. v. NLRB, 622 F.2d 237, 241 (6th Cir. 1980). Here, the NBPA was in negotiations with the NBA for a new collective bargaining agreement. Barksdale, USDC No. 11-CV-1215 at *4. The current collective bargaining agreement was set to expire at 11:59pm, October 11, 2016. Id. Eight hours before the old agreement expired, the NBPA chose to decertify itself and allow players to avail themselves of antitrust law for protection. Id. Petitioners arguments appear to rely on the idea that decertification acts akin to a light switch that can make the non-statutory exemption instantly disappear. But Brown makes equally clear that multiemployer bargaining would not last if that were the case. Brown's operative language and the rationale underlying the entire decision establish that the labor exemption cannot vanish upon a unilateral disclaimer. To 19

substitute in decertification instead of disclaimer and say all is fixed is to create a distinction without a meaningful difference. There are two fundamental problems with Petitioners' argument that the nonstatutory labor exemption lasts only until the collapse of the collective-bargaining relationship. First, there is a serious question as to whether the collective bargaining relationship has, in fact, collapsed, let alone that any collapse is permanent. No authority suggests that a decertification issued during the course of collective bargaining, while the parties are literally still at the bargaining table, effects an immediate, permanent collapse of the collective bargaining process. Moreover, no one really believes that the NBPA is truly gone forever or that collective bargaining is over in this industry. There is not even a potential substitute for what professional basketball in America could look like without the NBA and collective bargaining. Second, and perhaps more importantly, Brown does not state that the exemption ends immediately upon collapse of the bargaining relationship, or anything of the sort. In fact, the full stated view of the Court was: Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers, for an agreement among employers could be sufficiently distant in time and in circumstances from the collective-bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process. See, e.g., 50 F.3d at 1057 (suggesting that exemption lasts until collapse of the collective-bargaining relationship, as evidenced by decertification of the union); El Cerrito Mill & Lumber Co., 316 NLRB [1005,] 1006-07 [(1995)] (suggesting that extremely long impasse, accompanied by instability or defunctness of mul-tiemployer unit, might justify union withdrawal from group bargaining). We need not decide in this case whether, or where, within these extreme outer boundaries to draw that line. Nor would it be appropriate for us to do so without the detailed views of the Board, to whose specialized judgment Congress intended to leave many of the inevitable questions concerning multiemployer bargaining bound to arise in the future. Brown, 518 U.S. at 20

250 (quoting NLRB v. Truck Drivers, 353 U.S. 87, 96 (1957) and citing Meat Cutters v. Jewel Tea, 381 U.S. 676, 710 n.18 (1965) (Goldberg, J.)) (emphases added). Thus, the Supreme Court clearly identified decertification as a potential outer boundary, but it expressly declined to adopt the D.C. Circuit's suggest[ion] that decertification would extinguish the exemption. B. How Decertification Can Be Used to Invoke Antitrust Scrutiny All of this is not to say that the NBA cannot come under antitrust scrutiny. To do so however, the NBPA must adhere to a series of steps which include the collapse of the collective bargaining process and retaining a sufficient distance between the collapse and the use of antitrust law. First, the NBPA must reach an impasse in good faith. This means it must do its best to negotiate on the terms it wants in good faith and pursue those negotiations through multiple attempts until it becomes abundantly clear to any party reviewing the facts of the case that the NBPA could get no progress in its negotiations. Second, the NBPA should only consider this step when it has reached a true impasse with the NBA that it cannot bargain around and that would cause significant economic injury to the players. Using this tactic lightly (or even lightly declaring an impasse) will only reinforce the NBA s arguments against it and prevent the NBPA from credibly using this tactic at a time when the players might truly need it. Moreover, the players will suffer economically during the course of litigation so the gains made by a successful suit would still need to be significant. Third, it must at this point formally decertify after the expiration of the collective bargaining agreement. Going through the entire formal process and involving the NLRB can minimize arguments from the NBA that such a move is a sham or an attempt to 21

game the system temporarily in order to get a bargaining edge before returning to the status quo. Finally, in order to insulate decertification from the bargaining process, the NBPA should take a significant amount of time (several days at least) between ending talks with the NBA at an impasse as the collective bargaining agreement expires and actually pursuing decertification. While the D.C. Circuit s opinion in Brown appears to suggest that the bargaining relationship collapses once a union formally decertifies, the Supreme Court explicitly chose not to adopt that standard. Taking extra time between cutting off negotiations and pursuing decertification increases not only the distance between the bargaining process and the players eventual antitrust suit but also the perception of that distance as it relates to any sort of bargaining relationship between the NBA and the NBPA. CONCLUSION For the foregoing reasons, the judgment of the Eighth Circuit should be upheld. Dated: January 13th, 2017 Respectfully Submitted, Team 2 22