No IN THE Supreme Court of the United States. NATIONAL BASKETBALL ASSOCIATION Respondent.

No. 011-831720 IN THE Supreme Court of the United States AVON BARKSDALE, OMAR LITTLE, STRINGER BELL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. Petitioner, NATIONAL BASKETBALL ASSOCIATION Respondent. On Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit BRIEF FOR THE RESPONDENT Team No. 16 Counsel for Respondent

QUESTIONS PRESENTED I. Whether Commissioner Burrell acted within the scope of his authority when he interpreted and applied the provisions of the Collective Bargaining Agreement and when he exercised his procedural discretion to exclude witness testimony from Barksdale s arbitration hearing. II. Whether the non-statutory labor exemption extends beyond the union s disclaimer of interest and beyond expiration of the Collective Bargaining Agreement to protect the NBA s lockout from antitrust scrutiny. i

TABLE OF CONTENTS QUESTIONS PRESENTED....... i TABLE OF CONTENTS.......ii TABLE OF AUTHORITIES.........iv STATEMENT OF THE CASE.......1 FACTUAL BACKGROUND......... 1 PROCEDURAL HISTORY.......4 SUMMARY OF THE ARGUMENT..... 5 STANDARD OF REVIEW........6 ARGUMENT..... 7 I. COMMISSIONER BURRELL S ARBITRATION AWARD SHOULD BE ENFORCED BECAUSE THE POLICY GOALS OF THE LMRA SUPPORT PRIVATE RESOLUTION OF LABOR DISPUTES WITHOUT JUDICIAL INTERVENTION....... 7 A. Commissioner Burrell s Award Decision Is Entitled To A High Level Of Deference Because He Was Acting Within The Scope Of His Bargained-For Authority Under The Collective Bargaining Agreement............8 B. Barksdale Had Sufficient Due Process Notice About The Extent To Which He Could Be Punished Under the Collective Bargaining Agreement...... 9 1. Barksdale s Claim He Lacked Notice That His Participation In A Scheme To Tamper With Game Balls Was Harmful To The Integrity Of The Game Is An Equivocation........10 2. Barksdale s Reliance On Any Policy Outside Of Article 46 For Punishment Of Conduct Detrimental Is Misplaced 12 3. Lack Of Precedent That Non-Cooperation Could Result In Disciplinary Action Is Not Adequate Grounds For Vacatur.. 13 C. Commissioner Burrell s Decision To Exclude NBA General Counsel Cedric Daniels Testimony During The Arbitration Hearing Was Well Within His Broad Discretion Under The Collective Bargaining Agreement And Was Fundamentally Fair..................15 ii

II. THE LOCKOUT IS PROTECTED BY THE NSLE........ 17 A. Federal Policy Intends For The NSLE To Shield Labor Disputes From Antitrust Law.....18 B. The NSLE Should Apply To The Lockout Because The NBPA And NBA Are Still Engaged In The Bargaining Process...19 1. The NSLE Should Extend Beyond The NBPA s Bare Statement Of Disclaimer Because It Is A Leveraging Tactic And Therefore, Part Of The Bargaining Process..... 20 2. The NSLE Applies To The Lockout Because The Distance In Time Or Circumstances Between The Lockout And Expiration Of The Collective Bargaining Agreement Was Not Sufficient To End The Collective Bargaining Process.........22 C. Primary Jurisdiction Requires The NLRB Decide The NBA s Unfair Labor Practice Claim Before This Court Intervenes............ 23 CONCLUSION....25 iii

TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752 (1947)....... 24 Allen Bradley Co. v. Local Union No. 3, Int l Bhd. of Elec. Workers, 325 U.S. 797 (1945)... 19 Brown v. Pro Football, Inc., 518 U.S. 231 (1996).....17, 18, 20, 21, 22, 23 Charles D. Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404 (1982)...18 Grayned v. City of Rockford, 408 U.S. 104 (1972). 9 H.A. Artists & Assoc., Inc. v. Actors Equity Assoc., 451 U.S. 704 (1981).. 19 Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002). 15 NLRB v. Truck Drivers Local Union No. 449, Int l Bhd. of Teamsters, 353 U.S. 87 (1957)... 18, 24 Marine Cooks & Stewards v. Pan. S.S. Co., 362 U.S. 365 (1960)... 19 Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950). 9 United Mine Workers of America v. Pennington, 381 U.S. 676 (1965)... 18 United Paperworkers Int l Union v. Misco, Inc., 484 U.S. 29 (1987)... 7, 8, 15, 16 United Steelworkers of America v. Enter. Wheel & Car Corp., 363 U.S. 593 (1960). 7 United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960). 7 iv

UNITED STATES COURT OF APPEALS CASES Abram Landau Real Estate v. Bevona, 123 F.3d 69 (2d Cir. 1997) 11 Bureau of Engraving, Inc. v. Graphic Commc n Int l Union, 164 F.3d 427 (8th Cir. 1999). 13 Byrnie v. Town of Cromwell, 243 F.3d 93 (2d Cir. 2001). 14 Hoffman v. Cargill, Inc., 236 F.3d 458 (8th Cir. 2001). 17 Kolel Beth Yechiel Mechil Inc. v. YLL Irrevocable Trust, 729 F.3d 99 (2d Cir. 2013). 15 Kronisch v. United States, 150 F.3d 112 (2d Cir. 1998)... 14 Nation-Wide Check Corp. v. Forest Hills Distrib., 692 F.2d 214 (1st Cir. 1982).. 14 NFL Players Assoc. v. NFL, 831 F.3d 985 (8th Cir. 2016). 13 NFL Mgmt. Council v. NFL Players Assoc., 820 F.3d 527 (2d Cir. 2016). 8, 11, 13, 14, 16 Powell v. NFL, 930 F.2d 1293 (8th Cir. 1989).....18, 20 Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002). 14 Saint Mary Home. Inc. v. Serv. Emps. Int l Union, Dist. 1199, 116 F.3d 41 (2d Cir. 1997). 11 Wackenhut Corp. v. Amalgamated Local 515 & Int l Union, 126 F.3d 29 (2d Cir. 1997). 6, 14 Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200 (2d Cir. 2002)... 12 v

UNITED STATES DISTRICT COURT CASES NBA v. Williams, 857 F. Supp. 1069 (S.D.N.Y. 1994).. 20 Powell v. NFL, 678 F. Supp. 777 (D. Minn. 1988)... 20, 24 ADMINISTRATIVE COURT CASES Charles D. Bonanno Linen Serv., Inc., 243 N.L.R.B. 1093 (1979)... 20, 21 El Cerrito Mill & Lumber Co., 316 N.L.R.B. 1005 (1995)... 20, 21 Retail Assoc., Inc., 120 N.L.R.B. 388 (1958)... 20 STATUTES 9 U.S.C. 10 (2012).. 16 15 U.S.C. 1 (2012).. 18 15 U.S.C. 17 (2012) 19 29 U.S.C. 52 (2012) 19 29 U.S.C. 101 (2012).. 19 29 U.S.C. 141-144 (2012) 6, 19 29 U.S.C. 151-169 (2012). 19 OTHER SOURCES Kieran M. Corcoran, When Does the Buzzer Sound?: The Nonstatutory Labor Exemption in Professional Sports, 94 COLUM. L. REV. 1045 (1994).... 19 Ross Siler, The Lessons of the 2011 NFL and NBA Lockouts: Why Courts Should Not Immediately Recognize Players Union Disclaimers of Representation, 88 WASH. L. REV. 281 (2013).. 22 vi

STATEMENT OF THE CASE I. FACTUAL BACKGROUND Under-inflated basketballs. During game seven of the The National Basketball Association ( NBA ) Western Conference Finals between Tune Squad and the Monstars, May 30, 2016, a referee noticed some basketballs were seemingly under-inflated during the game s first-half. R. at 1. Monstars alleged Tune Squad was culpable. R. at 1. The NBA affirmatively took steps to extensively investigate the circumstances surrounding the allegation. The next day, the NBA retained Maurice Levy and his firm to conduct an independent investigation along with NBA General Counsel Cedric Daniels. R. at 1. The NBA s Policy on Integrity of the Game & Enforcement of Competitive Rules, distributed to its Chief Executives, Club Presidents, General Managers, and Head Coaches, gave Commissioner Burrell the authority to investigate violations. R. at 2, 8. The provision stated: Actual or suspected violations will be thoroughly and promptly investigated. R. at 2. The decision. The Levy Report concluded: It is more probable than not that Barksdale was at least generally aware of the inappropriate activities involving the release of air from the Tune Squad game balls. R. at 3. The report further concluded: It is unlikely that an equipment assistant and a locker room attendant would deflate game balls without Barksdale s knowledge and approval. R. at 3. On July 15, 2016, the findings of the Daniels/Levy independent investigation was made public. R. at 2. Upon completion of the investigation, NBA Executive Vice President William Rawls sent a disciplinary decision letter to Barksdale ( Rawls Letter ) on July 18, 2016. R. at 3. The letter notified Barksdale of his violation, stating: your role in the use of under-inflated basketballs by Tune Squad in game seven of the Western Conference 1

Finals represents a violation of longstanding playing rules developed to promote fairness to the game. R. at 3. It also informed Barksdale of his punishment pursuant to Article 46 R. at 3. Article 46. Article 46 of the Collective Bargaining Agreement ( CBA ) grants Commissioner Burrell the authority to determine violations and to take disciplinary action against a player whom he "reasonably judge[s]" to have engaged in "conduct detrimental to the integrity of, or public confidence in, the [NBA]." R. at 21. However, it does not articulate any procedural rules for the arbitration process, except parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing. R. at 21. The arbitration appeal. Through the NBA Players Association ( NBPA ), Barksdale appealed his suspension. R. at 3. He moved to compel NBA General Counsel Cedric Daniels testimony at the arbitration hearing because Daniels was designated co-lead investigator alongside Levy. R. at 3. However, Commissioner Burrell denied the motion. R. at 3. Under Article 46, Commissioner Burrell has reasonable discretion to determine to compel the testimony of any witness whose testimony is necessary for the hearing to be fair. R. at 3. He determined Daniels had no first-hand knowledge of the events relevant to Barksdale s discipline and did not play a substantive role in the investigation. R. at 3. Daniels merely facilitated Mr. Levy s access to witnesses and documents. R. at 3. Nevertheless, Commissioner Burrell noted he would revisit the NBPA's motion to compel Daniels testimony if the parties presented evidence showing it was necessary for a full and fair hearing. R. at 27. However, Barksdale never renewed his objection or further pursued the issue. R. at 27. At closing of the arbitration appeal hearing, Commissioner Burrell published his, Award and Final Decision on Article 46 Appeal of Avon Barksdale on July 25, 2016. R. at 3. Since game ball tampering in the NBA was a case of first impression, Commissioner Burrell analogized to steroid use to determine the appropriate punishment: 2

[T]he closest parallel is the collectively bargained discipline imposed for a first violation of the policy governing performance enhancing drug[s].the fourgame suspension imposed on Mr. Barskdale is fully consistent with the discipline ordinarily imposed for the most comparable effort by a player to secure an improper competitive advantage. R. at 6. The award upheld the four-game suspension and found Barksdale willfully obstructed the investigation when he destroyed his cellphone during an ongoing investigation into his conduct. R. at 3. This, along with participating in a scheme to tamper with game balls indisputably constitute[d] conduct detrimental to the integrity of, and public confidence in, the game of professional basketball. R. at 3. The disclaimer. The NBA exercised its option to opt out of the final two years of the most recent CBA upon its expiration at 11:59 pm, October 11, 2016. R. at 4. Up until the day of the deadline, the owners and NBPA, including the plaintiffs, attempted to negotiate a new CBA. R. at 4. The players were fighting for a new personal conduct policy, which would prevent a disciplinary situation similar to that of Barksdale s from the game ball tampering. R. at 4. Prior to expiration, the NBPA polled its players to see if they wished to disband the union if negotiations for a new CBA failed. R. at 4. A substantial majority of the players voted to end the collective bargaining status if it served their best interests. R. at 4. At 4:00 pm on October 11, 2016, only eight hours before the CBA expired, the NBPA informed the NBA of its decision to disclaim interest in representing the players. R. at 4. At this time, the NBPA also amended its bylaws to prohibit members from engaging in collective bargaining with NBA. R. at 4. The NBPA terminated its status as a labor organization with the National Labor Relations Board ( NLRB ) and applied for IRS reclassification for tax purposes. R. at 4. The lockout. Upon expiration of CBA, the NBA instituted a lockout effective October 12, 2016, and prevented all NBA players from working. R. at 4. In addition, the NBA filed an unfair labor 3

practice claim with the NLRB alleging that the NBPA disclaimer of interest and this subsequent filing was merely intended as leverage at the bargaining table and was actually part of the collective bargaining process. R. at 4. Plaintiffs allege the following: (1) the lockout is a violation of federal antitrust law under section 1 of the Sherman Act, (2) the NBA and 30 independently owned teams jointly agreed and conspired to an unlawful group boycott and pricefixing arrangement that will economically harm the Plaintiffs, and (3) the lockout is aimed at shutting down the entire free agent marketplace. R. at 4. Yet, pursuant to federal policy the NBA claims the lockout is exempt from antitrust scrutiny by the non-statutory labor exemption ( NSLE ). R. at 4. II. PROCEDURAL HISTORY This is an appeal of the Eighth Circuit s determination that the lower court enforce the arbitration award and protect the lockout from antitrust scrutiny. R. at 31. In the United States District Court of Tulania, Petitioners sued the NBA to vacate Commissioner Burrell s arbitration award and enjoin the NBA s action of imposing a lockout, or a group boycott, because it was subject to antitrust scrutiny. R. at 1. The District Court ruled in Petitioner s favor and the NBA appealed. R. at 19. On appeal to the Eighth Circuit, the Respondents renewed its lower court argument to enforce the arbitration award because the Commissioner Burrell s decision was entitled to extreme deference by the courts. R. at 5. Respondents also argued federal policy supports extending the NSLE to shield the lockout from antitrust scrutiny. R. at 13, 28. The Petitioners argued to uphold the lower court s ruling due to inadequate notice for Barksdale s punishment and because Commissioner Burrell exceeded the scope of his procedural authority. R. at 21. Additionally, Petitioners argued the NBPA s disclaimer of interest extinguished the CBA and 4

thus, the NSLE did not apply. R. at 4, 31. The Eighth Circuit reversed on both holdings and remanded with instructions for the lower court to confirm the arbitration award and find the lockout is protected by the NSLE. R. at 31. The Petitioner now brings suit to vacate the arbitration award and seeks injunctive relief from the lockout. R. at 3. SUMMARY OF THE ARGUMENT Petitioner is seeking judicial review based on the merits of his case to vacate Commissioner Burrell s arbitration award decision. However, under the Labor Management Relations Act ( LMRA ), the Commissioner s decision is entitled to a high level of deference so long as he was acting within the scope of his bargained-for authority. Petitioner does not dispute his participation in a scheme to tamper with game balls constituted conduct detrimental to the integrity of the game. Instead, he claims he did not receive adequate notice for his resulting punishment. Article 46 grants the Commissioner broad authority to define conduct detrimental and determine appropriate discipline for acts which degrade the integrity of the game, including public confidence in the game. The NBPA and the NBA agreed to empower Commissioner Burrell with broad discretion to investigate and adjudicate claims of game violations and player misconduct, including conduct detrimental. Under Article 46, Barksdale was put on notice the Commissioner retained broad authority to punish any conduct he reasonably judged would harm the integrity of the game. Finally, federal policy favors arbitration because the arbitrator has customary knowledge of the particular employment field, which is especially valuable for settling disputes during an ongoing collective bargaining process. Commissioner Burrell utilized his expertise when he excluded the testimony of NBA General Counsel Cedric Daniels. His decision was well within 5

the broad procedural authority granted to arbitrators through legal precedent. In addition, the hearing was not so deeply flawed to preclude the possibility of a fair outcome. Federal labor policy also supports extending the NSLE to the lockout to protect the NBA from antitrust scrutiny. Congress did not intend for antitrust laws to resolve labor disputes. Instead, it sought to strengthen collective bargaining agreements to protect employee rights, stabilize wages, and correct other working conditions. However, the players claim the NSLE does not apply because: (1) the union disclaimed interest in representing them; and (2) the lockout was imposed after the CBA expired. While this Court has declined to delimit the outer boundaries of the NSLE, federal policy supports extending the exemption if the parties are still in the bargaining process. Moreover, because the NBA filed an unfair labor practice claim with the NLRB in response to the union s disclaimer, primary jurisdiction requires it decide the NBA s claim before this Court makes its determination. STANDARD OF REVIEW When upholding or vacating an arbitration award, courts review decisions de novo on questions of law and for clearly erroneous findings of fact. Wackenhut Corp. v. Amalgamated Local 515 & Int l Union, 126 F.3d 29, 31 (2d Cir. 1997). Disputes involving the assertion of rights under a collective bargaining agreement are governed by section 301 of the Labor Management Relations Act. 29 U.S.C. 141. 6

ARGUMENT I. COMMISSIONER BURRELL S ARBITRATION AWARD SHOULD BE ENFORCED BECAUSE THE POLICY GOALS OF THE LMRA SUPPORT PRIVATE RESOLUTION OF LABOR DISPUTES WITHOUT JUDICIAL INTERVENTION. The Eighth Circuit properly held the District Court exceeded its limited jurisdiction to review Commissioner Burrell s award 1 in accordance with the LMRA. The policy goals of arbitration would be completely disturbed if courts could bring their own sense of justice to the review of an arbitration award. Thus, the court is highly deferential to the arbitrator when the parties bargain for his or her authority in the CBA. Congress enacted the LMRA to promote industrial stabilization through the collective bargaining agreement, and emphasized the importance of private arbitration of grievances. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578 (1960). The rationale was that merit-based decisions by the courts would undermine federal policy of settling labor disputes through private arbitration. United Steelworkers of America v. Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960). Appropriately, this Court held it was proper to refuse to review the merits of an arbitration award under collective bargaining agreements. Id. Moreover, this Court held it was not its job to resolve the dispute but only make sure the arbitrator was acting within the scope of authority under the CBA and did not ignore the plain language of the contract. United Paperworkers Int l Union v. Misco, Inc., 484 U.S. 29, 38 (1987). This Court should enforce the arbitration award for the following reasons. First, Commissioner Burrell s award decision is entitled to a high level of deference because he was acting within the scope of his bargained-for authority as arbitrator. Second, Barksdale had 1 Commissioner may appoint himself as arbitrator, and presently is acting as such. R. 3, 21. 7

adequate notice about the extent to which he could be punished under the CBA. Finally, Commissioner Burrell s decision to exclude NBA General Counsel Cedric Daniels testimony during the arbitration hearings was well within his broad discretion under the CBA and was fundamentally fair. A. Commissioner Burrell s Award Decision Is Entitled To A High Level Of Deference Because He Was Acting Within The Scope Of His Bargained-For Authority Under The Collective Bargaining Agreement. Article 46 of the CBA grants the Commissioner broad authority to define conduct detrimental and determine appropriate discipline for acts which degrade the integrity of the game, including public confidence in the game. This authority was bargained for by the NBA and the players through the NBPA. Commissioner Burrell acted within the scope of his authority and reasonably construed the contract terms. Thus, deference is required. The court s primary objective is limited to ensuring the arbitration proceedings meet the LMRA s minimal legal standards. NFL Mgmt. Council v. NFL Players Assoc. (Brady), 820 F.3d 527, 532 (2d Cir. 2016). These standards require an arbitrator to act within his or her scope of authority under the collective bargaining agreement. Misco, 484 U.S. at 37. Where the parties have contracted for the arbitrator's construction, the arbitrator s factual findings are entitled to complete deference. 2 Id. at 38. However, an arbitrator cannot espouse its own brand of justice or ignore the plain language of the contract. Id. Similarly, the parties cannot ask for more impartiality than what is vested in the contract. Brady, 820 F.3d at 548. Even if the commissioner makes a mistake of fact or law, the court must still uphold the award so long as he acted within the bounds of his bargained-for authority. Id. at 532. 2 An erroneous interpretation of a contract is not a sufficient basis for disregarding the conclusion of the decision maker chosen by the parties. Misco, 484 U.S. at 38. 8

Commissioner Burrell s decision was well-grounded in Article 46 of the Collective Bargaining Agreement. This provision empowers the Commissioner to take disciplinary action against a player whom he "reasonably judge[s]" to have engaged in "conduct detrimental to the integrity of, or public confidence in, the [NBA]." R. at 21. Not only was this explicit in the Player Contract, but it was bargained for prior to employment with the NBA. By agreeing to the CBA, Barksdale empowered Commissioner Burrell to act as arbitrator in all disputes brought pursuant to Article 46. The scope of this power included interpreting the construction of the contract in relation to violations and meting out discipline. Had Barksdale sought to restrict Commissioner Burrell s authority he should have bargained for that at the outset. However, he did not. Instead, he asks this Court to resolve the dispute based on its merits, which is beyond the court s jurisdiction under the LMRA. B. Barksdale Had Sufficient Due Process Notice About the Extent To Which He Could Be Punished Under the Collective Bargaining Agreement. The court should not intervene in the private resolution of this labor dispute and vacate Barksdale s punishment merely because he claims he lacked notice. To vacate his punishment now simply because he disagrees with it would undermine the arbitration process and set an undesirable precedent that runs contrary to Congress goals embodied in the LMRA. Not only is it customary in sports that players have advance notice of prohibited conduct and potential discipline, but it is also a matter of law that a person have a reasonable opportunity to know what is prohibited in order to act accordingly. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). See Brady, 820 F. 3d. at 538 (finding law of the shop requires the League to provide players with advance notice of prohibited conduct and potential discipline); Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (a fundamental requirement of due process is to give notice that is reasonably calculated, under all circumstances). 9

Barksdale contends he did not have sufficient notice a four game suspension would result from his deleterious conduct. His assertion rests on a lack of notice under the Competitive Integrity Policy, the Players Policy Manual, and by non-cooperation. However, Barksdale s claims are misplaced. In addition, any reliance by Barksdale on policies outside of Article 46 is an equivocation. 1. Barksdale s Claim He Lacked Notice That His Participation In A Scheme To Tamper With Game Balls Was Harmful To The Integrity Of The Game Is An Equivocation. By agreeing to the CBA, Barksdale was put on notice the Commissioner retained broad authority to punish any conduct he reasonably judged would harm the integrity of the game. For Barksdale to claim otherwise is a blatant attempt to evade the simple fact he cheated, which he was fully aware warranted punishment under Article 46. First, Barksdale contends he did not have notice his conduct would result in a four-game suspension under the Competitive Integrity Policy. This policy is contained in the NBA s Game Operations Policy Manual, circulated to only Chief Executives, Club Presidents, General Managers, and Head Coaches. R. at 2, 8. However, this contention is misplaced. The Competitive Integrity Policy was not the source of the discipline, rather it supplied Commissioner Burrell with the authority to conduct an investigation. R. at 2. The policy notified executive staffers that any actual or suspected violation will be thoroughly and promptly investigated. (emphasis added). R. at 2. The mere fact that Burrell relied on the policy to investigate Barksdale s conduct detrimental does not transform his reliance into an application of the policy. Second, Barksdale contends Commissioner Burrell s comparison to a player s steroid use resulting in a four-game suspension was inadequate notice that he could be similarly punished 10

for ball tampering. Nevertheless, even a barely colorable justification for the conclusion would not be disturbed by a litigant who argues for a different result. See Abram Landau Real Estate v. Bevona, 123 F.3d 69, 75 (2d Cir. 1997); Saint Mary Home. Inc. v. Serv. Emps. Int l Union, Dist. 1199, 116 F.3d 41, 44 (2d Cir. 1997). An almost identical situation occurred in the NFL, where quarterback Tom Brady was suspended for participating in a scheme to deflate footballs during an NFL conference game. The arbitrator utilized a drug use policy comparison to reach his punishment decision. Brady, 820 F.3d at 540. The court found the analogy to be a useful tool for an arbitrator regarding a case of first impression. Id. Lacking any direct precedent, the Commissioner crafted an appropriate remedy by using the CBA and arbitral precedent to reason by analogy and bring his informed judgment to bear in order to reach a fair solution of a problem. Furthermore, the court found due process does not require a defendant to have notice of the possible analogies a judge might make to determine a punishment but only requires notice of the statutory range of possible punishments. Brady, 820 F.3d at 540. In the instant case, Commissioner Burrell used a similar reasoning to determine Barksdale s punishment: R. at 6. [T]he closest parallel is the collectively bargained discipline imposed for a first violation of the policy governing performance enhancing drug[s].the fourgame suspension imposed on Mr. Barskdale is fully consistent with the discipline ordinarily imposed for the most comparable effort by a player to secure an improper competitive advantage. Commissioner Burrell s comparison is sufficient as a barely colorable justification to the closest parallel. The basis for punishment is not related to the Policy on Anabolic Steroids and Related Substances but rather, the Commissioner is drawing a relationship between ways in which 11

someone can cheat to obtain a competitive advantage. Similar to the reasoning in Brady, this analogy was useful because the Commissioner had no NBA precedent for how to deal with ball tampering. He was simply making a reasonable judgment call based on similar conduct designed to gain a competitive advantage. Furthermore, Barksdale was not entitled to have notice about potential comparisons by Commissioner Burrell. If he wanted that level of notice, he should have bargained for it in the contract. Instead, he agreed to the CBA and thus had sufficient notice that discipline could range from fines to suspensions for conduct detrimental violations. Finally, Barksdale claims, [n]o NBA policy or precedent provided notice that a player could be subject to discipline for general awareness of another person s alleged misconduct. R. at 7. However, Barksdale was not punished for general awareness of ball tampering; he was punished for conduct detrimental. While the Levy Report confined its conclusion to Barksdale being generally aware of the inappropriate conduct of others, Commissioner Burrell was not limited to those findings. R. at 3. Instead, he determined Barksdale participated in a scheme to tamper with game balls after they were approved by game officials. 3 R. at 3. His punishment stemmed from being an accomplice in this scheme; any insistence to the contrary is an equivocation. 2. Barksdale s Reliance On Any Policy Outside Of Article 46 For Punishment Of Conduct Detrimental Is Misplaced. Barksdale contends under the Player Policy Manual ( PPM ) he only received notice his conduct would result in a fine, rather than a four-game suspension. However, his claim is misplaced. 3 An arbitrator s factual findings are not open to judicial challenge, and we accept the facts as the arbitrator found them. Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 213 (2d Cir. 2002). 12

Barksdale s reliance on the PPM patently ignores the explicit language of Article 46, which makes punishable any conduct that degrades public confidence in, and integrity of, the game. R. at 21. Because Barksdale does not dispute Commissioner Burrell s factual findings, one would reasonably conclude that Barksdale knew his conduct was detrimental to the game. Not only would ball tampering tarnish the integrity of the game, it would damage public confidence in the sport. However, he instead asks this Court to look to the PPM as the source of notice for his misconduct. But the PPM only lists minimal equipment infractions, such as the length of a player's stockings or the color of his wristbands. R. at 22. These minimal equipment infractions do not destroy public confidence and integrity in the game to the level that scheming for a competitive advantage does. Moreover, even if the PPM was the basis for Commissioner Burrell s award, the Commissioner is not limited to a fine as the maximum punishment. See NFL Players Assoc. (Peterson) v. NFL, 831 F.3d 985, 994 (8th Cir. 2016) (finding if the Commissioner determines a current level of discipline for certain conduct is ineffective deterrence, it is within his authority to increase the punishment at his discretion). Thus, Barksdale s reliance on the PPM for notice that the punishment for cheating was limited to a fine is misplaced. 3. Lack Of Precedent That Non-Cooperation Could Result In Disciplinary Action Is Not Adequate Grounds For Vacatur. Federal policy favors arbitration because of the arbitrator s customary knowledge of the particular employment field, which is especially valuable for settling disputes during an ongoing collective bargaining process. Brady, 820 F.3d at 596. In addition to reviewing the express provisions of a CBA, the arbitrator may consider industry custom, or the law of the shop. Bureau of Engraving, Inc. v. Graphic Commc n Int l Union, 164 F.3d 427, 429 (8th Cir. 1999). 13

Under law of the shop, precedent is considered but not dispositive. See Wackenhut, 126 F.3d at 32 (what matters is whether arbitrator s decision is grounded in the collective bargaining agreement not whether it is grounded in arbitral precedent ). Barksdale claims he cannot be punished for non-cooperation because "[n]o player suspension in NBA history has been sustained for an alleged failure to cooperate with or even allegedly obstructing an NBA investigation." R. at 24. Despite there being no precedent in the NBA for discipline resulting from non-cooperation, it is well established that the law permits a trier of fact to infer that a party who deliberately destroys relevant evidence the party had an obligation to produce did so in order to conceal damaging information from the adjudicator. Brady, 820 F.3d at 544. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106-07 (2d Cir. 2002); Byrnie v. Town of Cromwell, 243 F.3d 93, 107-12 (2d Cir. 2001); Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998); Nation-Wide Check Corp. v. Forest Hills Distrib., 692 F.2d 214, 217-18 (1st Cir. 1982). Commissioner Burrell made the logical inference Barksdale was attempting to thwart the investigation with his conduct when he destroyed his cell phone and this, too, constituted conduct detrimental. See Brady, 820 F.3d at 544 (finding non-cooperation constituted conduct detrimental because any reasonable litigant would know the destruction of evidence would be negatively construed as concealing incriminating information from the adjudicator). Commissioner Burrell relied on the CBA and the law of the shop to conclude Barksdale s conduct warranted a four-game suspension to deter future violations. Furthermore, Barksdale erroneously claims he lacked notice that non-cooperation could result in disciplinary action. However, consistent with the law of the shop, Commissioner Burrell s award established non-cooperation was further evidence of conduct detrimental. 14

Barksdale was already suspended for his participation in game ball tampering and his noncooperation simply provided additional reasons for upholding Barksdale s initial suspension in the Rawls letter. The record shows non-cooperation was not grounds for any increased or new punishment. It merely strengthened the reasons for his existing punishment. C. Commissioner Burrell s Decision To Exclude NBA General Counsel Cedric Daniels Testimony During The Arbitration Hearing Was Well Within His Broad Discretion Under The Collective Bargaining Agreement And Was Fundamentally Fair. The NBPA and NBA agreed in the CBA to empower Commissioner Burrell with broad discretion to investigate and adjudicate claims of game violations and player misconduct. Commissioner Burrell s decision to exclude the testimony of NBA General Counsel Cedric Daniels was well within his broad authority and the hearing was fundamentally fair. This Court should give due deference to Commissioner Burrell s procedural rulings and not disturb the arbitration process. Courts have consistently found an arbitrator has broad discretion to compel or exclude witnesses. See, e.g., Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85 (2002) (finding procedural questions are presumptively not for the judge, but for an arbitrator to decide); Misco, 484 U.S. at 40 (finding courts should not second-guess the sound discretion of the arbitrator about which witnesses to hear and which evidence to receive or exclude); Kolel Beth Yechiel Mechil Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 107 (2d Cir. 2013) (arbitrators have 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) (finding arbitrators do not need to comply with strict evidentiary rules). Procedural questions that arise during arbitration are best left to the sound discretion of the arbitrator so long as the arbitration agreement does not provide such rules. Misco, 484 U.S. at 40. 15

Commissioner Burrell was well within his procedural power to exclude Daniels testimony. Article 46 of the CBA does not articulate any rules of procedure for the NBA arbitration process, except parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing. R. at 21. Although there were no procedural rules beyond this, Barksdale sought to compel Daniels testimony. Commissioner Burrell denied Barksdale s request because Daniels did not have any first-hand knowledge of the events at issue, and did not play a substantive role in the investigation leading to Barksdale s suspension. R. at 3. Daniels merely facilitated Mr. Levy s access to witnesses and documents. R. at 3. Nevertheless, Commissioner Burrell noted he would revisit the NBPA's motion to compel Daniels testimony if the parties presented evidence showing it was necessary for a full and fair hearing. R. at 27. However, Barksdale never renewed his objection or further pursued the issue. R. at 27. Thus, when given the opportunity, Barksdale did not, or perhaps could not, present evidence that Daniels testimony was relevant to his hearing. Barksdale, unhappy with the outcome, now erroneously claims Burrell s exclusion of testimony exceeded his procedural power. Disputes arising under collective bargaining agreements are governed by the LMRA, however, federal courts have often looked to the Federal Arbitration Act ( FAA ) for guidance in labor arbitration cases. Brady, 820 F.3d at 545 (citing Misco, 484 U.S. at 40). Although there are no grounds to overturn an arbitration decision for procedural rulings under the LMRA, a narrow exception exists under the FAA. 9 10. Under the FAA, an award can be vacated if the arbitrators were guilty of misconduct in refusing to hear evidence pertinent and material to the controversy. 9 U.S.C. 10(a)(3). Leaning on the guidance of the FAA, some courts have implied a fundamental fairness standard. Conversely, if a fundamental unfairness standard 16

exists, it must apply to arbitration schemes so deeply flawed as to preclude the possibility of a fair outcome. Hoffman v. Cargill, Inc., 236 F.3d 458, 463 (8th Cir. 2001). There is no evidence in the record that Barksdale s hearing was so deeply flawed as to preclude a fair outcome. Nothing about the way Commissioner Burrell conducted the arbitration hearing was fundamentally unfair or exceeded the scope of his authority. He excluded Daniels testimony because it was not material or pertinent to the controversy. Moreover, Commissioner Burrell gave Barksdale the opportunity to renew his motion to compel. By doing so Commissioner Burrell exercised his authority with fairness and his actions do not support a claim of misconduct. II. THE LOCKOUT IS PROTECTED BY THE NSLE. Extending the scope of the non-statutory labor exemption ( NSLE ) beyond the union s disclaimer of interest and beyond the lockout is necessary to promote over 50 years of federal labor policy intent on keeping unions and employers at the bargaining table. Congress core principle was to allow economic forces, instead of antitrust laws, to bring about legitimate compromise. Congress achieved this goal by creating the NLRB to regulate labor disputes. Thus, extending the scope of the NSLE to the lockout and shielding the NBA from antitrust scrutiny encourages the parties to resume negotiations and continue the bargaining process, as Congress intended. The NSLE shields restraints on competition that occur during the bargaining process from antitrust scrutiny. Brown v. Pro Football, Inc., 518 U.S. 231, 236-37 (1996). This shield is intended to encourage meaningful bargaining between the parties until resolution, with advantages to both labor and management. Id. A fundamental concept of the NSLE is that both parties agree to a level playing field as the basis for an often adversarial labor employment 17

relationship. Powell v. NFL (Powell II), 930 F.2d 1293, 1303 (8th Cir. 1989). In continuing to fight it out, the exertion of economic force may be used to bring about legitimate compromise. Id. Thus, a lockout is a critical, lawful, and protected tool that an employer can use in the bargaining process. E.g., Charles D. Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404, 409 (1982); NLRB v. Truck Drivers Local Union No. 449, Int l Bhd. of Teamsters, 353 U.S. 87, 95 (1957). To ensure Congress labor policies are given effect, this Court should extend the NSLE post-dissolution and protect the NBA s lawful lockout for three reasons. First, federal policy intends for the NSLE to shield labor disputes from antitrust law. Second, the NSLE should apply to the lockout because the NBPA and NBA are still engaged in the bargaining process. Third, primary jurisdiction requires the NLRB decide the NBA s unfair labor practice claim before this Court intervenes. A. Federal Policy Intends For The NSLE To Shield Labor Disputes From Antitrust Law. The purpose of the NSLE will be frustrated if the parties are allowed to resolve their fight in court, rather than stay at the negotiating table. More importantly, Congress policy goals will be subverted if courts are allowed to disrupt the bargaining process. Congress did not intend for antitrust laws 4 to resolve labor disputes. Brown, 518 U.S. at 236. Instead, Congress believed unions and collective bargaining agreements would give workers more leverage when contracting with corporate employers, thereby protecting employee rights, stabilizing wages, and correcting other working conditions. United Mine Workers of America v. Pennington, 381 U.S. 676, 711 (1965). Unions and employees also opposed the use 4 The Sherman Act prohibits restraint of trade or commerce among the several States. 15 U.S.C. 1. 18

of antitrust laws to enjoin boycotts, strikes, and other adversarial bargaining tools. Allen Bradley Co. v. Local Union No. 3, Int l Bhd. of Elec. Workers, 325 U.S. 797, 802 (1945). In response, Congress created statutory labor exemptions 5 to take federal courts out of the labor injunction business and to protect union activities from antitrust scrutiny. Marine Cooks & Stewards v. Pan. S.S. Co., 362 U.S. 365, 369 (1960). Congress then passed the National Labor Relations Act and the Labor Management Relations Act to promote collective bargaining agreements and to protect against unfair labor practices. 29 U.S.C. 141-144, 151-169 (2012). Congress went a step further and created the NLRB to establish the rules and regulations for investigating and enforcing violation claims. 6 The cumulative effect of these acts led to the NSLE, a judicially-created exemption designed to reconcile federal labor and antitrust policies. H.A. Artists & Assoc., Inc. v. Actors Equity Assoc., 451 U.S. 704 (1981). The lockout falls squarely under the NSLE. This dispute ensued from a disagreement over the terms of the CBA between the NBPA and the NBA, a multi-employer bargaining unit. The court should apply the exemption and allow the parties to continue to bargain without judicial intervention, as Congress intended. B. The NSLE Should Apply To The Lockout Because The NBPA And NBA Are Still Engaged In The Bargaining Process. The NBA and the NBPA are still engaged in the collective bargaining process. At the time of disclaimer, and at the time of the lockout, the relationship was in an adversarial state of negotiations. By extending the NSLE, a new collective bargaining agreement may still be viable. 5 Clayton Act, 15 U.S.C. 17 (2012); Norris-LaGuardia Act, 29 U.S.C. 52, 101 (2012). 6 Kieran M. Corcoran, When Does the Buzzer Sound?: The Nonstatutory Labor Exemption in Professional Sports, 94 Colum. L. Rev. 1045, 1050 (1994). 19

Pre-Brown decisions attempted to interpret the boundaries of when the NSLE ceased to apply. See NBA v. Williams, 857 F. Supp. 1069, 1078 (S.D.N.Y. 1994) (finding decertification ends the bargaining relationship, thereby barring application of the NSLE); Powell v. NFL (Powell I), 678 F. Supp. 777, 789 (D. Minn. 1988) (finding NSLE survives only until impasse). However, the Eighth Circuit overruled Powell I and held the NSLE applies beyond impasse so long as the collective bargaining relationship was ongoing. Powell II, 930 F.2d at 1303. Yet, this Court in Brown expanded the application of the NSLE to the bargaining process, distinct from the bargaining relationship emphasized in Powell II. 518 U.S. at 250. In doing so, Brown suggested the bargaining process may end in two extreme scenarios. Id. First, is upon decertification of a union. Id. Second, is after an extremely long impasse, 7 accompanied by instability or defunctness of a multiemployer unit. Id. (quoting El Cerrito Mill & Lumber Co., 316 N.L.R.B. 1005, 1006-07 (1995)). While Brown did not decide the issues of disclaimer or impasse, this Court implicitly held the exemption applied past expiration of a CBA, or even past dissolution of the bargaining relationship, if the bargaining process was still in effect. 518 U.S. at 250. 1. The NSLE Should Extend Beyond The NBPA s Bare Statement Of Disclaimer Because It Is A Leveraging Tactic And Therefore, Part Of The Bargaining Process. For a disclaimer of interest to be effective and thereby end the bargaining process, it must be unequivocal and made in good faith, such that the union's conduct is not inconsistent with its alleged disclaimer. Retail Assoc., Inc., 120 N.L.R.B. 388, 392 (1958). By contrast, if the surrounding circumstances justify an inference to the contrary, a union's bare statement of 7 A mere impasse in bargaining does not justify withdrawing from an established multiemployer; it is only a temporary deadlock in negotiations and may serve as a device to further the bargaining process rather than destroy it. Bonanno, 243 N.L.R.B. at 1093. 20

disclaimer does not sufficiently establish it abandoned its interest. Id. In addition, the NLRB considers the timing of a union s withdrawal when assessing whether the disclaimer of interest is effective. El Cerrito Mill, 316 N.L.R.B. at 1005. Once negotiations for a new contract begin, a party may only withdraw if there is mutual consent or unusual circumstances, which inspired Brown s two extreme scenarios. Id. at 1006. See Brown, 518 U.S. at 250; Charles D. Bonanno, 243 N.L.R.B. 1093 (1979). The NBPA disclaimer was merely a bare statement of disclaimer because the parties are still in the bargaining process. Prior to expiration, the players and owners were negotiating with the hope of reaching a new CBA. The NBPA conducted a poll of the players to see if they wished to disband the union if negotiations for a new CBA failed. Although a substantial majority of the players voted to do so, the union s disclaimer was premature. With only eight hours left until the CBA s expiration, it was still possible the parties would reach an agreement. According to the standards set forth in Retail, this timing alone would invalidate the disclaimer because it was prior to expiration of the CBA. Moreover, the disclaimer lacks evidence of good faith. While the NBPA points to their paper trail as proof of good faith, these are mere formalities. Unlike the extreme scenario of disclaimer in Brown, the union s actions were reactionary and premature. If it was in fact a good faith effort, the union should have waited until there was no possibility of negotiating. Instead, it conveniently disclaimed interest while bargaining and subjected the NBA to antitrust scrutiny, giving the players an unfair advantage over the league. These circumstances suggest the union was engaged in leveraging tactics and, therefore, acting in bad faith. In actuality, the bargaining process is still in effect and a new CBA is still viable. 21

Finally, federal policy supports extending the NSLE beyond a bare statement of disclaimer. If the parties are allowed to spontaneously disclaim interest there would be no stability in the labor bargaining relationship. This would circumvent the bargaining process, running contrary to Congress intent allowing economic forces to shape the final agreement. The purpose of the NSLE is to keep the parties at the bargaining table, maintaining stability in the collective bargaining process both before and after negotiations break down. For this reason, the exemption should extend for a reasonable period following disclaimer, 8 also espousing judicial efficiency in distinguishing between deserving antitrust claims and mere bargaining tactics. 2. The NSLE Applies To The Lockout Because The Distance In Time Or Circumstances Between The Lockout And Expiration Of The Collective Bargaining Agreement Was Not Sufficient To End The Collective Bargaining Process. The NSLE continues to apply until enough distance in time and circumstance has passed that a rule permitting antitrust intervention would not significantly interfere with the process. Brown, 518 U.S. at 250. In Brown, the NFL sought to establish a squad of rookie players with a uniform salary. Id. at 234. The union disagreed, insisting the players receive benefits and protections similar to those of the non-rookie players, as well as salary negotiations on an individual level. Id. at 234-35. After two months, the negotiations culminated in impasse. Id. at 235. Nevertheless, the NFL decided to implement their proposed rookie squad plan. Id. The union filed its suit eleven months later. Id. The Court held the NSLE applied because the NFL s plan took place during and immediately after a collective-bargaining negotiation. Id. at 250. 8 Ross Siler, The Lessons of the 2011 NFL and NBA Lockouts: Why Courts Should Not Immediately Recognize Players Union Disclaimers of Representation, 88 Wash. L. Rev. 281 (2013). 22

Thus, the NFL s conduct grew out of, and was directly related to the collective bargaining process in which the parties were still engaged. Id. The NBA and the NBPA were engaged in the collective bargaining process when the NBA instituted the lockout only eight hours before expiration of the CBA. R. at 4. This is not enough distance in time or circumstance to effectively terminate the bargaining process and overcome application of the NSLE. Unlike the timeframe in Brown, the NBA lockout was imposed less than 24-hours after the CBA s expiration. It was a lawful action used by the NBA to bring about compromise, especially over terms affecting the NBA s ability to discipline players for conduct detrimental. Additionally, the lockout was a response to the NBPA s disclaimer of interest, which occurred less than 24-hours prior. Essentially, one party s dramatic response caused the other s retaliation, consistent with the adversarial nature of labor employment. Because these events are so related in circumstances and connected in time, a mere one day breakdown in the collective bargaining process is not sufficient to reject application of the NSLE. C. Primary Jurisdiction Requires The NLRB Decide The NBA s Unfair Labor Practice Claim Before This Court Intervenes. Congress intended for the NLRB to adjudicate labor disputes with the goal of strengthening the collective bargaining relationship. Because the NLRB is in a better position to understand the specialized circumstances of NBA conflicts, this Court should await its judgment about whether the NBPA s disclaimer was made in good faith. Collective bargaining agreements must be free of any unfair labor practice, such as failing to participate in good faith bargaining. Brown, 518 U.S. at 238-39. This Court has declined to make a judgment before the NLRB has made its determination due to the NLRB s specialized knowledge of good faith practices customary to an industry. Id. at 242. Disputes 23