Supreme Court of the United States

No. C16-1729-1 IN THE Supreme Court of the United States NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, on its own behalf and on behalf of Tom Brady, and TOM BRADY, Petitioners, v. NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL and NATIONAL FOOTBALL LEAGUE, Respondents. On Writ of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF FOR RESPONDENTS Team No. 31 Counsel for Respondents November 21, 2016

QUESTIONS PRESENTED 1. Did the Second Circuit properly approve of an arbitral decision when the collective bargaining agreement granted expansive appellate authority over disciplinary decisions to the arbitrator and the Commissioner based his award in the agreement? 2. Did the Second Circuit properly refuse to uphold the vacatur of an arbitral decision when case law calls for extraordinary deference to an arbitrator s interpretation and the Commissioner construed critical provisions of the collective bargaining agreement? ii

TABLE OF CONTENTS QUESTIONS PRESENTED... ii TABLE OF AUTHORITIES... iv OPINIONS AND ORDERS ENTERED BELOW... 1 STATEMENT OF JURISDICTION... 1 STATUTORY PROVISIONS... 1 STANDARD OF REVIEW... 2 STATEMENT OF THE CASE... 3 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 6 I. The Arbitral Decision Was Within the CBA s Grant of Appellate Authority.... 6 A. The Commissioner Had the Authority to Construct a Complete Factual Record.... 8 B. The Commissioner Had the Authority to Settle Procedural Questions... 10 1. The CBA Does Not Require Extensive Discovery... 11 2. The Commissioner Did Not Exceed His Authority When Excluding Pash s Testimony... 12 3. The Commissioner Had the Power to Admit Inculpatory Evidence... 13 C. The Commissioner Had the Authority to Determine That Brady s Misconduct Amounted to Conduct Detrimental to the NFL.... 14 D. The Commissioner Had the Authority to Affirm a Suspension for Conduct Detrimental to the League... 15 II. Vacatur Is Rarely Appropriate for Arbitral Decisions And This Case Is Not an Exception... 16 A. Legal Precedence Does Not Recommend Vacatur... 17 B. The Arbitral Decision Draws Its Essence from the CBA... 18 1. The CBA Manifests the Scope of the Parties' Agreement.... 20 2. The Commissioner Resolved Ambiguities Within the CBA.... 22 3. Inconsistencies Among Prior NFL Arbitral Decisions Are Not Fatal... 25 C. The Commissioner s Alleged Omissions Do Not Warrant Vacatur... 27 CONCLUSION... 31 iii

TABLE OF AUTHORITIES United States Code 28 U.S.C. 1254(1) (2012)... 1 29 U.S.C 185(a) (2012)... 1 9 U.S.C. 1 (2012)... 12 9 U.S.C. 10(a)(3) (2012)... 12 United States Supreme Court Cases E. Associated Coal Corp. v. Mine Workers Am., Dist. 17, 531 U.S. 57 (2000)... 8 John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964)... 10, 11 Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (2013)... 8, 17, 31 Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662 (2010)... 5, 7, 8 United Paperworkers Intern. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29 (1987)... passim United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593 (1960)... passim United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574 (1960)... 2, 7, 10, 19 United States Circuit Court Cases Boise Cascade Corp. v. Paper Allied-Indus., Chem. & Energy Workers (PACE), Local 7-0159, 309 F.3d 1075 (8th Cir. 2002)... passim Bureau of Engraving, Inc. v. Graphic Commc ns Int l Union, 164 F.3d 427 (8th Cir. 1999)... 19 iv

Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc., 935 F.2d 1501 (7th Cir. 1991)... 17 Clinchfield Coal Co. v. Dist. 28, United Mine Workers, 720 F.2d 1365 (4th Cir. 1983)... passim Coppinger v. Metro-N. Commuter R.R., 861 F.2d 33 (2d Cir. 1988)... 12 Gas Aggregation Servs., Inc. v. Howard Avista Energy, LLC, 319 F.3d 1060 (8th Cir. 2003)... 23 Johnson Controls, Inc., Sys. & Servs. Div. v. United Ass n of Journeymen, 39 F.3d 821 (7th Cir. 1994)... 18, 19 LJL 33rd St. Assocs., LLC v. Pitcairn Props. Inc., 725 F.3d 184 (2d Cir. 2013)... 14 Local 1199, Drug, Hosp. & Health Care Emp. Union, RWDSU, AFL-CIO v. Brooks Drug Co., 956 F.2d 22 (2d Cir. 1992)... 2, 7, 17 Local Union No. 135 of United Rubber, Cork, Linoleum & Plastic Workers of Am. v. Dunlop Tire & Rubber Corp. of Buffalo, N.Y., 391 F.2d 897 (2d Cir. 1968)... 25 Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673 (7th Cir. 1983)... 15 Nat l Football League Players Ass n v. Nat l Football League (Peterson), 831 F.3d 985 (8th Cir. 2016)... passim Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n (Brady), 820 F.3d 527 (2d Cir. 2016)... passim SBC Advanced Sols., Inc. v. Commc ns Workers of Am., Dist. 6, 794 F.3d 1020 (8th Cir. 2015)... 25 Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16 (2d Cir. 1997)... 12 v

Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29 (2d Cir. 1997)... 25 Williams v. Nat l Football League, 582 F.3d 863 (8th Cir. 2009)... 15 United States District Court Cases Nat l Football League Council v. Nat'l Football League Players Ass'n, 125 F. Supp. 3d 449 (S.D.N.Y. 2015)... 1 Sinai Hosp. of Baltimore, Inc. v. 1199 SEIU United Healthcare Workers E., 65 F. Supp. 3d 440 (D. Md. 2014)... 24 State Supreme Court Cases Spiska Eng g, Inc. v. SPM Thermo-Shield, Inc., 730 N.W.2d 638 (S.D. 2007)... 24 Secondary Sources Bill Barnwell, NFL midseason awards: Can Tom Brady really be the MVP already? (Nov.7, 2016, 7:30 AM), http://www.espn.com/nfl/story/_/page/barnwellx161107... 16 NFL Owners Approve Rules Changes For 2016 (March 22, 2016), http://operations.nfl.com/updates/football-ops/ nfl-owners-approve-rules-changes-for-2016/... 6 Roger Goodell, Final Decision on Article 46 Appeal of Tom Brady, 14-16 (July 28, 2015), https://nfllabor.files.wordpress.com/ 2015/07/07282015-final-decision-tom-brady-appeal.pdf... passim Ryan T. Dryer, Beyond the Box Score: A Look at Collective Bargaining Agreements in Professional Sports and Their Effect on Competition, 2008 J. Disp. Resol. 267 (2008)... 16 Tim Sharp, A Tougher NFL Job To Get Than A Player (Sept. 18, 2014, 6:51 AM), http://www.cbsnews.com/news/ a-tougher-nfl-job-to-get-than-becoming-a-player/.... 6 vi

OPINIONS AND ORDERS ENTERED BELOW The opinion of the Second Circuit Court of Appeals is reported and appears at Nat l Football League Mgmt. Council v. Nat l Football League Players Ass n, 820 F.3d 527 (2d Cir. 2016). The opinion of the United States District Court for the Southern District of New York is reported and appears at Nat l Football League Council v. Nat l Football League Players Ass n, 125 F. Supp. 3d 449 (S.D.N.Y. 2015). It is also set out in the record at R. at 1-41. STATEMENT OF JURISDICTION This case is on appeal from a judgment ordered by the United States Court of Appeals for the Second Circuit. The Supreme Court of the United States granted the petition for a writ of certiorari in the 2017 term of this Court. This Court has jurisdiction pursuant to 28 U.S.C. 1254(1). STATUTORY PROVISIONS This case arises under Section 301 of the Labor Management Relations Act, 29 U.S.C. 185(a), which provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C 185(a) (2012). 1

STANDARD OF REVIEW Judicial review of arbitration cases like this one is very limited. Major League Baseball Players Ass n v. Garvey, 532 U.S. 504, 509 (2001) (per curiam). It is effectively a two-step process with both inquiries stemming from the fundamental idea that arbitration is a matter of contract. United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960). First, the reviewing court must determine whether the arbitrator acted within the scope of his authority under the relevant collective bargaining agreement. See Local 1199, Drug, Hosp. & Health Care Emp. Union, RWDSU, AFL- CIO v. Brooks Drug Co., 956 F.2d 22, 25 (2d Cir. 1992). Second, the reviewing court must determine whether the award draws its essence from the agreement or whether the arbitrator dispense[d] his own brand of industrial justice. See id.; United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960). 2

STATEMENT OF THE CASE In the 2015 offseason, the National Football League ( NFL or League ) notified Tom Brady that he was suspended for four games. R. at 382. The League and its players are bound by a collective bargaining agreement ( CBA ) negotiated between the NFL and the NFL Players Association ( Association ). R. at 76. The letter clarified that Brady s role in the use of under-inflated footballs by the Patriots in the 2015 AFC Championship Game earned him the suspension. R. at 382. Further, the letter explained that Brady s actions clearly constitute[d] conduct detrimental to the integrity of and public confidence in the game of professional football. R. at 382. As support for the Commissioner s decision to suspend Brady, the Commissioner used an independent investigation the Wells Report. See R. at 382. The report outlined that Brady failed to cooperate full and candidly with the investigation, which called the integrity of the league into question. R. at 382. Article 46 of the CBA expressly acknowledges that the Commissioner has the authority to discipline players for conduct that he determines to be detrimental to the integrity of, or public confidence in, the game of professional football. R. at 398. Paragraph 15 of the NFL Player Contract reiterates this authority. R. at 406 07. The Association appealed Brady s four-game suspension. R. at 77. Article 46 provides a right for an appeal at a hearing at which the Commissioner may preside at his discretion. R. at 399. The Commissioner held the hearing and issued a comprehensive twenty-page decision. R. at 78. 3

The Commissioner s decision, which constitutes the full, final and complete disposition under the CBA, was to confirm Brady s suspension of four games. R. at 78. In his decision, the Commissioner reiterated how Brady s conduct was uniquely detrimental to the League and he detailed the differences between Brady s conduct and the conduct of multiple other NFL players. Roger Goodell, Final Decision on Article 46 Appeal of Tom Brady, 14-16 (July 28, 2015), https://nfllabor.files. wordpress.com/2015/07/07282015-final-decision-tom-brady-appeal.pdf. The Commissioner also concluded that Brady had more than adequate notice that he could be suspended for his conduct. Id. at 16. The League sought to confirm the arbitration award pursuant to 301 of the Labor Management Relations Act ( LMRA ). R. at 76. The Association sought to vacate the award. R. at 80-81. The district court granted the Association s motion to vacate the award and denied the League s motion to confirm. R. at 1-41. The League appealed the decision, and the Second Circuit reversed, holding that the Commissioner s decision must be confirmed. Nat l Football League Mgmt. Council v. Nat l Football League Players Ass n (Brady), 820 F.3d 527 (2d Cir. 2016). Now, the Association has appealed to the Supreme Court of the United States, and the Court granted certiorari on two issues. 4

SUMMARY OF THE ARGUMENT I. The Commissioner Did Not Exceed His Grant of Appellate Authority. The Commissioner did not his exceed his grant of appellate authority when he approved Tom Brady s suspension for conduct detrimental to the game of professional football. In Stolt-Nielsen, this Court held that as long as an arbitrator s decision has any basis not necessarily a sufficient basis in the arbitration agreement, then the arbitrator did not exceed his authority. In the instant case, the Commissioner acting as the arbitrator in Brady s appeal did not exceed his collectively bargained for authority when he constructed a final and complete factual record, settled procedural questions, defined conduct detrimental, and decided that Brady engaged in conduct detrimental. Each decision made by the Commissioner is at the very least arguably based in the collective bargaining agreement, which is all this Court has ever required. The NFL and the Association bargained for the Commissioner s construction of the CBA. This construction should hold no matter how good, bad, or ugly. II. The Arbitral Decision Drew its Essence from the Collective Bargaining Agreement. Brady s four-game suspension drew its essence from the collective bargaining agreement. Thus, vacatur is not required. Current legal precedence provides a very high hurdle for overturning an arbitral decision when an arbitrator acts within his grant of authority. As long as an arbitrator does not exceed his grant of authority and the award draws its essence from the agreement, the decision deserves an extraordinary level of deference. This backdrop is critical. 5

An arbitral decision draws its essence from the arbitration agreement when the arbitrator does not ignore critical provisions of the agreement and his decision manifests the parties intent. In Boise Cascade, the Eighth Circuit Court of Appeals vacated an arbitral decision when abundant evidence existed that the arbitrator did not consider the parties intent, contravened that intent, and ignored critical terms. Here, the Commissioner properly effectuated the parties intent and addressed the critical provisions within the collective bargaining agreement. Any alleged omissions are not so critical that they would necessarily change the outcome of the arbitrator s decision. The Commissioner construed the contract, applied the contract, and overall his decision drew its essence from the contract. ARGUMENT I. The Arbitral Decision Was Within the CBA s Grant of Appellate Authority. In the NFL, the referees must control the mosh pit of mayhem on the field while taking into account the rules of the game. 1 Some rules are seemingly trivial and some are extraordinarily complex. The remedy for an incorrect interpretation of a rule by a referee is not to put the season on hold no matter how good, bad, or ugly the interpretation is but rather to renegotiate the rules in the offseason. 2 Like a referee's decision, an arbitrator s decision must be respected, unless and until the terms of the CBA are renegotiated. Because the alternative to respect is 1 Tim Sharp, A Tougher NFL Job To Get Than A Player (Sept. 18, 2014, 6:51 AM), http://www.cbsnews.com/news/a-tougher-nfl-job-to-get-than-becoming-a-player/. 2 See generally NFL Owners Approve Rules Changes For 2016 (March 22, 2016), http://operations.nfl.com/updates/football-ops/nfl-owners-approve-rules-changes-for-2016/. 6

not just one less season of football, but the potential for strife in labor industries. See Warrior & Gulf Nav. Co., 363 U.S. at 578. In order to prevent industrial strife, this Court consistently acknowledges a decided preference for private settlement of labor disputes without the intervention of government. United Paperworkers Intern. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 36 (1987) (applying the Labor Management Relations Act). Stolt-Nielsen and other modern cases have further defined and reinforced the significant historical limitation on the power of the judicial system to referee arbitration proceedings. See Stolt-Nielsen S.A. v. AnimalFeeds Int l Corp., 559 U.S. 662 (2010). 3 The first step of any court s evaluation of an arbitral decision is whether the arbitrator acted within the scope of his authority. See Brooks Drug Co., 956 F.2d at 25. In Stolt-Nielsen, this Court found that an arbitration panel exceeded its powers when it ordered a party to submit to class arbitration. 559 U.S. at 677. This Court overturned the panel s decision because it lacked any contractual basis for ordering class procedures, not because it lacked a sufficient basis. Id. at 676-77. The parties stipulated that an agreement on class arbitration had not been reached. Id. at 687. Thus, the panel s decision was not based on a determination regarding the parties intent. Id. at 673 n.4. Simply stated, the panel imposed its own conception of sound policy when it ordered class arbitration proceedings. Id. at 675. In 3 Stolt-Nielsen applied the Federal Arbitration Act (FAA). 559 U.S. at 666. While the FAA is not binding law when reviewing labor arbitral decisions, it has been used for guidance. See Misco, 484 U.S. at 40 n.9. 7

imposing its own policy choice, the panel exceeded its grant of authority within the commercial arbitration agreement. Id. at 677. In accord with Stolt-Nielsen, the Commissioner must respect the parties intent and construe the collective bargaining agreement. Id. at 675-77. If the Commissioner even arguably constru[ed] or appli[ed] the contract his award must stand, regardless of a court s view of its merits. Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064, 2068 (2013) (citing E. Associated Coal Corp. v. Mine Workers Am., Dist. 17, 531 U.S. 57, 62 (2000)). In the instant case, the Commissioner did not impose his own policy choices. He acted well within his grant of appellate authority when he: (1) constructed a complete factual record; (2) settled procedural questions; (3) made the ultimate fact determination that Brady engaged in conduct detrimental; and (4) affirmed Brady s four game suspension. A. The Commissioner Had the Authority to Construct a Complete Factual Record. The Association and the NFL collectively bargained for the arbitration process that is established in Article 46 of the CBA. See generally R. at 398-400. Section 1(a) of Article 46 of the CBA exclusively governs all disputes involving a fine or suspension imposed upon a player for conduct detrimental to the integrity of, or public confidence in, the game of professional football. R. at 398. The player, upon receiving written notice of the disciplinary action, can appeal in writing to the Commissioner. R. at 398. The Commissioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion. R. at 399. Article 46 grants the arbitrator here, the Commissioner broad authority to make a final 8

determination that a player engaged in conduct detrimental to the League based on a complete factual record. R. at 399. The dissent below argued that the Commissioner changed the factual basis of the dispute when he went beyond the findings of the Wells Report, which states that Brady was at least generally aware of the actions of the Patriots employees involved in the deflation of footballs and that is was unlikely that their actions were done without [his] knowledge. R. at 382. Indeed, the Commissioner, in his final award, determined that Brady knew about, approved of, consented to, and provided inducements and reward in support of a scheme by which, with Mr. Jasatremski s support, Mr. McNally tampered with the game balls. Final Decision on Article 46 Appeal of Tom Brady at 10. However, in making this final determination, the Commissioner did not exceed his authority. Article 46 calls for a hearing. R. at 398. As the Second Circuit stated, the point of a hearing in any proceeding is to establish a complete factual record. Brady, 820 F.3d at 541. Going even further, the court acknowledged that it would be paradoxical for Brady to be allowed to provide exculpatory evidence at a hearing and at the same time insist that no new findings or conclusions could be based on a record expanded as a consequence of a hearing. Id. Because Article 46 calls for a hearing and because it would be nonsensical for an arbitrator to be limited in any way factually at the hearing, the Commissioner s authority is at least arguably based in the collective bargaining agreement. Thus, the Commissioner is not 9

imposing his own brand of industrial justice and did not exceed his authority. Enter. Wheel & Car Corp., 363 U.S. at 597. Article 46 states that, upon completion of the hearing, the Commissioner has the power to render a full, final and complete disposition of the dispute. R. at 399. Conceptually, a full and final disposition put Brady and the Association on notice that this hearing was their last opportunity to dispute the merits of their case. This neutralizes any argument that Brady was not aware that he would not have the opportunity to rebut a debatably new set of facts and circumstances. Simply stated, Brady was aware that the Commissioner would consider a new set of facts in finally settling this dispute. B. The Commissioner Had the Authority to Settle Procedural Questions. Article 46 does not expressly prescribe answers to every possible question of procedure and it does not explicitly state how the arbitrator must construct the factual record. However, a collective bargaining agreement is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. Warrior & Gulf Nav. Co., 363 U.S. at 578. Typically, for questions of procedure that grow out of the dispute, courts give substantial discretion to the arbitrator s decision. See John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 58 (1964) (deciding to leave to the arbitrator the questions of whether grievance procedures apply to a particular dispute and whether such procedures have been followed or excused ). For instance, the Commissioner has the power: (1) to determine the extent of 10

discovery; (2) to exclude certain testimony; and (3) to consider the cruciality of certain inculpatory evidence. 1. The CBA Does Not Require Extensive Discovery. The Commissioner s decision to disallow more extensive discovery than Article 46 outlines is a protected procedural decision. Brady, 820 F.3d at 535. Brady and the Association requested investigative records and the investigative team s memoranda before the hearing. R. at 13. In accordance with Article 46, the Commissioner denied this request. R. at 14-15. Article 46 states as the only parameter for discovery that the parties shall exchange copies of any exhibits upon which they intend to rely. R. at 399. Compare Article 46 s rule of discovery with Article 15, which allows reasonable and expedited discovery upon the application of any party. Brady, 820 F.3d at 546. The parties knowingly bargained for two unique discovery processes. If the Association wanted an extensive discovery process for an Article 46 appeal, the Association should have bargained for it. The extent of discovery beyond Article 46 s one parameter is simply a procedural question for the Commissioner. This Court has held that procedural questions are left to the arbitrator. Livingston, 376 U.S. at 557-58. Here, the Commissioner acted within his authority and arguably construed Article 46 of the CBA when denying the Association's request for extensive discovery. 11

2. The Commissioner Did Not Exceed His Authority When Excluding Pash s Testimony. Excluding Jeff Pash's testimony is yet another example of a decision within the authority of the Commissioner. It is well settled that arbitral fact-finding is not the equivalent of judicial fact-finding. Coppinger v. Metro-N. Commuter R.R., 861 F.2d 33, 39 (2d Cir. 1988) (deciding that arbitrators are not bound by the Federal Rules of Evidence and of Civil Procedure and other rights such as testimony under oath, cross-examination, discovery, and compulsory process are restricted ). Thus, this hearing was not subject to judicial rules. Rather, this hearing was subject to explicit rules in Article 46 of the CBA and the Commissioner s construction of Article 46. Here, by excluding Pash s testimony, the Commissioner arguably construed the CBA. Therefore, the Commissioner did not exceed his authority. The Association attempts to find support that the exclusion of Pash s testimony exceeded the Commissioner's authority through a narrow exception provided by the Federal Arbitration Act (FAA). Not only does the FAA not apply to this CBA, but also the Association s assertion fails to meet this exception. 9 U.S.C. 1 (2012). The FAA provides that an award may exceed the arbitrator s power and be vacated when the arbitrators were guilty of misconduct in refusing to hear evidence pertinent and material to the controversy. 9 U.S.C. 10(a)(3) (2012). This exception is only appropriate when the decision violates fundamental fairness. See Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997) (deciding that the arbitrator s refusal to hear testimony by a company official violated fundamental fairness because a reasonable basis for the refusal did not exist). 12

Fundamental Fairness has not been violated here, however. The Commissioner s exclusion of Pash s testimony was not an arbitrary exercise of his own brand of justice. The Association argued Pash s testimony would be vital in understanding the preparation of the Wells Report. R. at 13. But the Wells Report states that it was prepared entirely by the Paul, Weiss investigative team. R. at 149. Pash was not a part of this investigative team. Thus, Pash s testimony was not vital to understanding the Wells Report. It was appropriate for the Commissioner to rely on the extensive testimony he received regarding the investigation from Troy Vincent and Theodore Wells. Brady, 820 F.3d at 546. This reliance was wholly within the Commissioner s authority and the exclusion was a reasoned, fundamentally fair arbitral decision. 3. The Commissioner Had the Power to Admit Inculpatory Evidence. The Association argues that the Commissioner exceeded his authority when he considered Brady s act of destroying his cellphone as inculpatory evidence. Before the hearing, it was revealed that on March 6 the same day that he was to be interviewed by the Wells investigative team Brady instructed his assistant to destroy the cellphone that he had been using since early November 2014. Brady, 820 F.3d at 535. This revelation was not an example of new conduct by Brady. Rather, this revelation provided the Commissioner with the full extent of Brady s detrimental conduct because the Wells Report had already considered Brady s lack of cooperation with the investigative team. R. at 382. 13

Thus, the decision to consider this inculpatory evidence falls squarely in line with the settled principle that arbitrators have substantial discretion to admit or exclude evidence. LJL 33rd St. Assocs., LLC v. Pitcairn Props. Inc., 725 F.3d 184, 195 (2d Cir. 2013) (holding that the arbitrator s exclusion of hearsay valuation evidence was not an abuse of discretion). Simply stated, the Commissioner exercised his substantial discretion, granted to arbitrators generally and under Article 46, when he considered the admissibility of the cellphone s destruction. Therefore, the Commissioner did not exceed the expansive grant of authority within the CBA by admitting and considering this evidence. C. The Commissioner Had the Authority to Determine That Brady s Misconduct Amounted to Conduct Detrimental to the NFL. The Association and the NFL collectively bargained for the Commissioner to penalize a player for conduct detrimental to the integrity of, or public confidence in, the game of professional football. R. at 398. Article 46 does not define conduct detrimental and does not prescribe a maximum penalty for such a violation. See R. at 398-399. However, the CBA s standard NFL player contract states that a player can be found guilty of conduct reasonably judged by the League Commissioner to be detrimental to the game of professional football. R. at 406. Further acknowledging the Commissioner's authority, the standard NFL player contract states that, for conduct detrimental to the League, the Commissioner has the authority to fine [a] Player a reasonable amount; to suspend [a] Player for a period certain or indefinitely; and/or to terminate this contract. R. at 406-07. The Association 14

bargained for this expansive grant of authority, thus allowing the Commissioner to make the final determination that Brady engaged in conduct detrimental to the league. The Association s possible concern that the Commissioner was evidently partial when making this determination is irrelevant. 4 The parties to an arbitration choose their method of dispute resolution, and can ask no more impartiality than inheres in the method they have chosen. Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 679 (7th Cir. 1983). Under the CBA, the Association and the NFL collectively bargained for their method of dispute resolution and agreed that the NFL Commissioner could, at his discretion, sit as the arbitrator. R. at 398-99; see Williams v. Nat l Football League, 582 F.3d 863, 885 (8th Cir. 2009) (holding that the Association bargained for the Commissioner to sit as the arbitrator, at his discretion, and that intent must be respected). D. The Commissioner Had the Authority to Affirm a Suspension for Conduct Detrimental to the League. The Association and the NFL collectively bargained for the Commissioner as the arbitrator to have the authority to affirm, vacate, or change the penalty originally imposed based on his interpretation of Article 46. R. at 399. When parties agree to arbitrate their disputes concerning violations of a CBA, they bargain for the arbitrator to determine remedies for the violations. See Misco, 484 U.S. at 38. Moreover, this Court has held that courts have no authority to disagree with [the 4 Although the question of whether the arbitrator was evidently partial was not briefed before the Second Circuit, that court discussed the issue and the Association may attempt to raise it before this Court. See Brady, 820 F.3d at 548. 15

arbitrator s] honest judgment with respect to the appropriate remedies. Id. Article 46 s available remedies include disciplinary penalties i.e. fines and suspensions. See R. at 398-99. Moreover, Article 46 does not prescribe a maximum penalty for conduct detrimental. See R. at 398-99. Thus, the Commissioner s affirmance of the four-game suspension was wholly within his authority to decide the appropriate penalty. II. Vacatur Is Rarely Appropriate for Arbitral Decisions And This Case Is Not an Exception. Tom Brady is an exceptional quarterback. Even after missing four games of the 2016 season, he is on the short list of league MVP candidates. 5 Unfortunately for Brady and the Association, however, the arbitral decision at issue here is not exceptional. Rather, the arbitral decision is an exceptionally ordinary one. The decision is merely another in a long line of professional sports arbitrations governed by collective bargaining agreements. 6 Brady and the Association argue that the arbitrator failed to address critical provisions of the CBA and that, as a result of this failure, vacatur is warranted. This argument fails for three primary reasons: (1) legal precedence requires courts to accord an extraordinary level of deference to an arbitrator s award; (2) the Commissioner addressed the critical provisions of the CBA in this case; and (3) even 5 Bill Barnwell, NFL midseason awards: Can Tom Brady really be the MVP already? (Nov.7, 2016, 7:30 AM), http://www.espn.com/nfl/story/_/page/barnwellx161107. 6 See Ryan T. Dryer, Beyond the Box Score: A Look at Collective Bargaining Agreements in Professional Sports and Their Effect on Competition, 2008 J. Disp. Resol. 267 (2008) (discussing how Major League Baseball, the National Basketball Association, and the National Football League each have collective bargaining agreements that provide for dispute resolution via arbitration). 16

if this Court finds that the arbitrator did not address an arguably critical provision, vacatur is not warranted. A. Legal Precedence Does Not Recommend Vacatur. Because the Commissioner acted within the scope of his authority, this Court must determine whether the award draws its essence from the agreement or whether the arbitrator dispense[d] his own brand of industrial justice. See Brooks Drug Co., 956 F.2d at 25; Enter. Wheel & Car Corp., 363 U.S. at 597. At this second step, the arbitrator s decision is entitled to substantial deference. See Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc., 935 F.2d 1501, 1505 (7th Cir. 1991) (finding that the role of the court is severely limited in reviewing an arbitral decision). After all, [i]t is the arbitrator s construction which was bargained for; and so for as the arbitrator s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different than his. Enter. Wheel & Car Corp., 363 U.S. at 599; accord Oxford Health Plans LLC, 133 S. Ct. at 2071 ( The arbitrator s construction holds, however good, bad, or ugly. ). This backdrop is critical. The Court is not at liberty to review the arbitrator s decision simply because it disagrees with the arbitrator s factual findings, contract interpretations, or choice of remedies. See Misco, 484 U.S. at 36. The Court is not to apply its own view of what would be appropriate player discipline. Nat l Football League Players Ass n v. Nat l Football League (Peterson), 831 F.3d 985, 993 (8th Cir. 17

2016). The Court is not to review whether the arbitrator s correctly construed the CBA when he reviewed the [initial] decision. Id. Rather, the Court should evaluate whether the arbitrator was even arguably construing or applying the contract and acting within the scope of his authority. Misco, 484 U.S. at 37-38. Thus, unless Brady and the Association can provide evidence to overcome the overwhelming deference to an arbitrator s decision, the decision must stand. B. The Arbitral Decision Draws Its Essence from the CBA. While, in narrow circumstances, an arbitrator will dispense his own brand of industrial justice and his decision will fail to draw its essence from the CBA, this case does not support such a finding. See Boise Cascade Corp. v. Paper Allied- Indus., Chem. & Energy Workers (PACE), Local 7-0159, 309 F.3d 1075 (8th Cir. 2002). This is not a case where the arbitrator fail[ed] to discuss a probative contract term, and at the same time offer[ed] no clear basis for how he construed the contract to reach such a decision without such consideration. Id. at 1084; see Clinchfield Coal Co. v. Dist. 28, United Mine Workers, 720 F.2d 1365, 1369 (4th Cir. 1983) (vacating an award where the arbitrator fails to discuss critical contract terminology, which terminology might reasonably require an opposite result ). Instead, this is a case where the arbitrator s decision is derived from the agreement, viewed in light of its language, its context, and any other indicia of the parties intention, and thus the decision draws its essence from the parties 18

agreement. See Boise Cascade, 309 F.3d at 1080 (quoting Johnson Controls, Inc., Sys. & Servs. Div. v. United Ass n of Journeymen, 39 F.3d 821, 825 (7th Cir. 1994)). The Association primarily takes issue with the Commissioner s application of the law of the shop arguing that Brady did not have the appropriate advance notice of the prohibited conduct and the disciplinary penalties. 7 This argument is grounded in the Association s belief that the Commissioner should have applied their interpretation of different terms and policies to Brady s case. While Boise Cascade and other decisions do open the door for questioning arbitrator interpretations that are wholly devoid or deficient of a key term or policy, such a blatant deficiency is not present here. See generally Boise Cascade, 309 F.3d 1075; see also Clinchfield Coal, 720 F.2d 1365. It is not necessary for the Commissioner to apply every term and tangential policy to Brady s case in order to issue a decision that draws its essence from the parties CBA. Because the Commissioner applied and resolved ambiguities within the appropriate terms and policies here, this Court should affirm the Second Circuit s decision. 7 The law of the shop is not a term that is present in the CBA. Consequently, on a surface level, this Court could dispense with the argument that the award should be vacated because the Commissioner failed to properly address the law of the shop as void ab initio because law of the shop is not a contract term (much less a probative or critical one). That said, however, courts have acknowledged that [t]he essence of the CBA is derived not only from its express provisions, but also from the industrial common law. Bureau of Engraving, Inc. v. Graphic Commc ns Int l Union, 164 F.3d 427, 429 (8th Cir. 1999); see Warrior & Gulf Nav. Co., 363 U.S. at 581 82. ( [T]he industrial common law the practices of the industry and the shop is equally a part of the collective bargaining agreement although not expressed in it. ). 19

1. The CBA Manifests the Scope of the Parties' Agreement. When determining whether an arbitrator failed to address critical provisions of the parties agreement, the Court must first determine which terms and policies govern the parties agreement. The Association argues that this case is like Boise Cascade, where the arbitrator improperly limited the scope of the parties agreement. See generally Boise Cascade, 309 F.3d at 1086. The Commissioner did not impose an improper limitation here. In Boise Cascade, the arbitrator of a labor dispute determined that a Last Chance Agreement ( LCA ), rather than the parties CBA, governed the dispute. 8 309 F.3d at 1079. While the Eighth Circuit agreed that the LCA superseded the CBA in some respects, the court did not agree that the arbitrator s inquiry could both start and stop within the four corners of the LCA. See id. at 1082, 1086. The arbitrator needed to consider the parties intent in drafting the LCA, as informed by their past practices. See id. at 1086. Simply stated, the court found that the arbitrator artificially restricted the full extent of the parties agreement thus limiting the essence he drew from. This arbitrator-imposed restriction is a critical difference between Boise Cascade and the instant case. In limiting the dispute to the one-and-half-page LCA, 8 Boise Cascade follows a pretty typical labor arbitration. See 309 F.3d at 1077-79. An employee, who was a member of a union, had a history of difficulties with her employer. Id. Many difficulties centered on excessive tardiness and absences, which led to another LCA that is not the source of the current controversy. Id. The conduct leading to the instant LCA, however, was the employee s arriving to work with a blood alcohol content of 0.28 nearly three times the legal limit. Id. After the employee committed multiple additional infractions, the employer terminated the employee pursuant to the employer's unwritten attendance rules. Id. The union appealed the decision to binding arbitration as provided by the CBA. Id. 20

the arbitrator in Boise Cascade limited the scope of his power and the reasonableness of his interpretation. Id. Here, the CBA unquestionably applies and it gives the broadest grant of power to the Commissioner. See Brady, 820 F.3d at 537 ( Nor does the Association dispute that the Commissioner was entitled, under Article 46, to determine that Brady s [conduct] was conduct detrimental worthy of a four-game suspension. ); see also R. at 398. While the Association wants to question the award because the Commissioner failed to make findings as to the applicability or interpretation of the Player Policies, such a question is not appropriate. Id. at 538. In part, the question is not appropriate because the Player Policies are not the governing documents in this case. 9 Beyond that, however, the NFL s Player Policies do not contain a specific provision that would apply to Brady s conduct, so this cannot be a case where the specific controls the general. See R. at 425 et seq; R. at 33. The Player Policies provisions regarding equipment violations do not mention tampering or ball or deflation. See R. at 425 et seq. The Player Policies also do not mention anything regarding destruction of evidence or lack of compliance in an investigation. See R. at 425 et seq. As a result, it would be a reasonable interpretation to disregard the Players Policies completely and it 9 As aforementioned, the CBA governs, the Player Policies do not. Indeed, the Association agreed that the Player Policies are not relevant to this controversy during the arbitration. As the Second Circuit commented, [t]his change of position is itself grounds for rejecting the Association s argument [that the Player Policies apply]. Brady, 820 F.3d at 538 39 ( During arbitration, the Association disclaimed the applicability of the Player Policies, saying we don t believe this policy applies either, because there is nothing here about the balls. ). 21

would certainly be possible to have an interpretation that draws its essence from the CBA without explicit reference to the Player Policies. 10 2. The Commissioner Resolved Ambiguities Within the CBA. Another important difference between the instant case and cases where an arbitrator improperly limited the parties agreement turns on recognition of ambiguity. For example, in Boise Cascade, the arbitrator opted for an extremely narrow construction of a provision that did not evince the parties intent or acknowledge a potentially outcome determinative ambiguity. See 309 F.3d at 1081-84. Here, however, the Commissioner recognized and worked to resolve the ambiguity of conduct detrimental and the notice issues surrounding Brady s discipline. See Final Decision on Article 46 Appeal of Tom Brady at 14-16. Boise Cascade suggested that the arbitrator should have exercised a broader interpretation of the words in the agreement in order to fully effectuate the parties intent. See 309 F.3d at 1086-87. Yet in this case, the Association argues that the arbitrator should have exercised a narrower interpretation that would appear in its view more consistent with policies that are not even at issue (the Player Policies). See R. at 88. This argument does not attempt to fully effectuate the parties intent under the CBA, which is the heart of Boise Cascade. Moreover, in working through the ambiguities, it cannot be suggested that the Commissioner simply stated an issue without examining it. See Clinchfield Coal, 720 F.2d at 1369 10 See discussion infra Section II. C. 22

(vacating an award where an arbitrator simply stated an issue without discussing it, thus failing to discuss critical contract terminology altogether). This case is analogous to Gas Aggregation, where the Eighth Circuit held that it was inappropriate to vacate an award when no controlling contractual language existed and the arbitration panel weighed the evidence in order to discern the appropriate damages. Gas Aggregation Servs., Inc. v. Howard Avista Energy, LLC, 319 F.3d 1060, 1067 (8th Cir. 2003) (applying Boise Cascade and finding that, unlike Boise Cascade, the arbitration panel resolved the necessary contractual gaps). As in Gas Aggregation, no unambiguous term exists in the CBA that outlines the precise penalty the Commissioner should impose given Brady s unique misconduct. See id. Thus, the Commissioner had to make his own determination of the appropriate penalty for Brady s conduct detrimental. Indeed, the intent of the CBA is for the Commissioner to decide what constitutes conduct detrimental, to determine whether a player has engaged in conduct detrimental, and to determine and impose appropriate discipline if he finds that a player has engaged in conduct detrimental. Final Decision on Article 46 Appeal of Tom Brady at 5. The intent of the CBA is not that the Commissioner outline all the possible types of detrimental conduct in the Player Policies and then go to the Player Policies to determine what a unique action was most akin to and ensure the determination is in line with what the Association would want. Yet, this is the intent the Association would have the Court read into the CBA. That intent is too narrow and is incorrect. 23

As required by the actual language of the CBA, the Commissioner decided each aspect of conduct detrimental here. Notably, in his determination, the Commissioner reiterated how Brady s conduct was uniquely detrimental to the League and he detailed the differences between Brady s conduct and the conduct of multiple other NFL players. Final Decision on Article 46 Appeal of Tom Brady at 14-16. The Commissioner also concluded that Brady had more than adequate notice that he could be suspended for his conduct here. Id. at 16. In analyzing conduct detrimental, the Commissioner constructed the term, just as the parties bargained. In fully explaining his reasoning behind Brady s penalty and the adequacy of notice given to Brady, he gave the parties more than bargained. Thus, the argument that the Commissioner did not fully effectuate the parties intent is without merit. It is the arbitrator s construction which was bargained for; and so far as the arbitrator s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his. Enter. Wheel & Car Corp., 363 U.S. at 599. 11 11 Case law from various jurisdictions supports the idea that when an arbitrator is interpreting ambiguous terminology or when the agreement is susceptible to the arbitrator s interpretation, then the decision should not be vacated. Sinai Hosp. of Baltimore, Inc. v. 1199 SEIU United Healthcare Workers E., 65 F. Supp. 3d 440, 448 (D. Md. 2014), appeal dismissed (Mar. 25, 2015) (refusing to vacate an award where a provision is inherently vague and ambiguous, because it can hardly be argued that the arbitrator's conclusion contradicted the clear language and because the arbitrator employed the discretion created by the penalty clause to determine the appropriate penalty for the situation at hand ); Spiska Eng g, Inc. v. SPM Thermo-Shield, Inc., 730 N.W.2d 638 (S.D. 2007) (holding that vacatur was not warranted when an employer failed to establish that the agreement was plain, unambiguous, and not susceptible to the arbitrator s interpretation or that the arbitrator s interpretation was irrational). 24

3. Inconsistencies Among Prior NFL Arbitral Decisions Are Not Fatal. As discussed, the Commissioner addressed notice and conduct detrimental in his award and in doing so was at least arguably construing or applying the CBA. Misco, 484 U.S. at 37-38. This alone means any argument of inconsistency is irrelevant, however, the argument of inconsistency is also incorrect. The Association suggests that the Commissioner did not follow the precedent set forth in prior NFL arbitrations regarding notice and the applicability of the other policies. But this argument ignores the fact that the arbitrator has no duty to follow arbitral precedent and the fact that prior NFL decisions are distinguishable. The law requires deference to the arbitrator s consideration of the law of the shop. Local Union No. 135 of United Rubber, Cork, Linoleum & Plastic Workers of Am. v. Dunlop Tire & Rubber Corp. of Buffalo, N.Y., 391 F.2d 897, 900 (2d Cir. 1968) ( The labor arbitrator is chosen because the parties presumably believe he has special knowledge of the common law of the shop and an ability to weigh [relevant] considerations. ). The impact of this deference being: the arbitrator has no duty to follow arbitral precedent and if the arbitrator fails to follow precedent, that is not a reason to vacate an award. Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29, 32-33 (2d Cir. 1997) (noting that even inconsistent awards will be upheld as long as both are grounded in the CBA); SBC Advanced Sols., Inc. v. Commc ns Workers of Am., Dist. 6, 794 F.3d 1020, 1028 (8th Cir. 2015) ( While the two interpretations are not perfectly congruous we cannot say that [the arbitrator s] interpretation fail[ed] to draw its essence from the CBA. ). 25

Further, previous NFL arbitral decisions like the Bounty, Rice, and Peterson decisions are each distinguishable and fail to provide a basis for vacatur. As the Commissioner explained at length, Bounty is fundamentally different from this case because the misconduct of the players was largely the result of pressure from coaches and other management representatives. Final Decision on Article 46 Appeal of Tom Brady at 14-15 & n.14. The Rice decision, which stated that Article 46 discipline should be fair and consistent and that players are generally entitled to notice, is not inconsistent with the award. R. at 96. In Rice, the primary issues were that the Commissioner punished Rice twice for the same conduct and that he was retroactively applying a new presumptive penalty for domestic violence. R. at 97-98. Here, the issue is not a double punishment for the same conduct and it does not involve retroactively applying a new presumptive penalty. Rather, the Commissioner determined a penalty for Brady s unique conduct and determined that Brady had sufficient notice. Final Decision on Article 46 Appeal of Tom Brady at 16-18. Finally, the Peterson decision, which involved indefinite suspension and a fine after Peterson s criminal no contest plea to reckless assault of his son, is unpersuasive because the Eighth Circuit overturned the case. Peterson, 831 F.3d 985. At the time the Second Circuit wrote its opinion in the instant case, the Peterson appeal was pending. Compare Brady, 820 F.3d 527 (decided on April 25, 2016) with Peterson, 831 F.3d 985 (decided on August 4, 2016). 26

The Peterson district court had vacated the arbitration award because it found that the award violated the essence of the CBA by retroactively applying the same new penalty at issue in Rice. See Peterson, 831 F.3d at 992-93. But the Eighth Circuit reinstated the award because [t]he arbitrator relied on the [CBA] and the law of the shop to reach this conclusion. Id. at 994. The Eighth Circuit noted that the arbitrator addressed and distinguished Rice, explaining that Rice dealt with notice of a second punishment, where Peterson s punishment was the first. Id. Similarly, here, the four-game suspension at issue is the first penalty imposed on Brady for his unique misconduct. Thus, any inconsistencies between the Brady decision and the Rice decision are ill-founded and, if anything, Peterson works in the League s favor because it does not stand for a harsh interpretation of the law of the shop s notice requirement. Rather, Peterson reiterates the fact that the Commissioner has extraordinary discretion in determining the appropriate penalty. See id. at 993-95. So much discretion that the Commissioner can discipline in line with a penalty that he developed after the conduct detrimental occurred. Id. The key is whether the penalty is grounded within the CBA. C. The Commissioner s Alleged Omissions Do Not Warrant Vacatur. Of course, Brady and the Association do not agree that it is possible to have an award that draws its essence from the parties agreement without reference to the Player Policies and certain bargained-for penalties i.e. stickum. Even if the Court agrees that the arbitrator should have referenced the Player Policies or other 27