COMPARING THE PLAYER DISCIPLINE PROVISIONS OF THE NFL AND NBA COLLECTIVE BARGAINING AGREEMENTS: Should there be a move toward uniform standards across Professional Sports?

In media remarks following Judge Berman’s decision rescinding Tom Brady’s 4-game suspension in the “Deflate”gate case, Brady’s attorney, Jeffrey Kessler advocated for the adoption of a new NFL personal conduct model. He compared what he viewed as the NFL’s fundamentally unfair process with the procedure adopted by Major League Baseball.

Although there are obvious differences between the major professional sports leagues, they have a commonality of interests in the need for fundamental fairness in all aspects of player-team contractual relationships. A review of the provisions governing arbitration in the player discipline context supports the argument that uniform language and procedures would have benefits for all parties. Concerns about due process and procedural guarantees exist whether the subject is the NFL, NBA, NHL or MLB.

Judge Berman’s decision was rooted in non-sports cases governing procedural due process in the arbitration context in addition to relying on the Ray Rice case as football-specific precedent. If the law applicable to ensuring due process is the same regardless of subject matter, should the language of the CBA’s arbitration provisions be uniform?

Mr. Kessler has pointed out that for over 80 years in the NFL the Commissioner has had the right to sit as an arbitrator. There was never a major controversy about this until 2012 when Commissioner Goodell began to press the bounds of his authority. There have been half a dozen disciplinary decisions overturned by courts since then; do we view these as the isolated results of one man’s overreaching that don’t signal the process itself is broken? Or the advent of a new antagonistic attitude toward player relations that warrants negotiating a change to the CBA?

Below are excerpts from the NFL and NBA Collective Bargaining Agreements. “Deflate”gate from start to finish took about 9 months. It may be surprising to some people that the rules governing the disciplinary response from the NFL Commissioner’s Office are found in only 3 pages of the 255-page CBA (excluding Appendices). The cases decided by the federal courts in the past 3 years now provide additional interpretative guidance.

NFL COLLECTIVE BARGAINING AGREEMENT

ARTICLE 46 COMMISSIONER DISCIPLINE (pp. 204-206)

Section 1. League Discipline: Notwithstanding anything stated in Article 43[1]:

(a) All disputes involving a fine or suspension imposed upon a player for conduct on the playing field (other than as described in Subsection (b) below) or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player’s approval, may appeal in writing to the Commissioner.

(b) Fines or suspensions imposed upon players for unnecessary roughness or unsportsmanlike conduct on the playing field with respect to an opposing player or players shall be determined initially by a person appointed by the Commissioner after consultation concerning the person being appointed with the Executive Director of the NFLPA, as promptly as possible after the event(s) in question. Such person will send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such notification, the player, or the NFLPA with his approval, may appeal in writing to the Commissioner.

(c) The Commissioner (under Subsection (a)), or the person appointed by the Commissioner under Subsection (b), shall consult with the Executive Director of the NFLPA prior to issuing, for on-field conduct, any suspension or fine in excess of $50,000

(d) The schedule of fines for on-field conduct will be provided to the NFLPA prior to the start of training camp in each season covered under this Agreement. The 2011 schedule of fines, which has been provided to and accepted by the NFLPA, shall serve as the basis of discipline for the infractions identified on that schedule. The designated minimum fine amounts will increase by 5% for the 2012 League Year, and each League Year thereafter during the term of this Agreement. Where circumstances warrant, including, but not limited to, infractions that were flagrant and gratuitous, larger fines, suspension or other discipline may be imposed. On appeal, a player may assert, among other defenses, that any fine should be reduced because it is excessive when compared to the player’s expected earnings for the season in question. However, a fine may be reduced on this basis only if it exceeds 25 percent of one week of a player’s salary for a first offense, and 50 percent of one week of a player’s salary for a second offense. A player may also argue on appeal that the circumstances do not warrant his receiving a fine above the amount stated in the schedule of fines.

Section 2. Hearings:


(a) Hearing Officers. For appeals under Section 1(a) above, the Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers. For appeals under Section 1(b) above, the parties shall, on an annual basis, jointly select two (2) or more designees to serve as hearing officers. The salary and reasonable expenses for the designees’ services shall be shared equally by the NFL and the NFLPA. Notwithstanding the foregoing, the Commissioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion. (emphasis added to original text)

(b) Representation. In any hearing provided for in this Article, a player may be accompanied by counsel of his choice. The NFLPA and NFL have the right to attend all hearings provided for in this Article and to present, by testimony or otherwise, any evidence relevant to the hearing.

(c) Telephone Hearings. Upon agreement of the parties, hearings under this Article may be conducted by telephone conference call or videoconference.

(d) Decision. As soon as practicable following the conclusion of the hearing, the hearing officer will render a written decision which will constitute full, final and complete disposition of the dispute and will be binding upon the player(s), Club(s) and the parties to this Agreement with respect to that dispute. Any discipline imposed pursuant to Section 1(b) may only be affirmed, reduced, or vacated by the hearing officer, and may not be increased.

(e) Costs. Unless the Commissioner determines otherwise, each party will bear the cost of its own witnesses, counsel and other expenses associated with the appeal.

(f) Additional Procedures for Appeals Under Section 1(a).

(i) Scheduling. Appeal hearings under Section 1(a) will be scheduled to commence within ten (10) days following receipt of the notice of appeal, except that hearings on suspensions issued during the playing season (defined for this Section as the first preseason game through the Super Bowl) will be scheduled for the second Tuesday following the receipt of the notice of appeal, with the intent that the appeal shall be heard no fewer than eight (8) days and no more than thirteen (13) days following the suspension, absent mutual agreement of the parties or a finding by the hearing officer of extenuating circumstances. If unavailability of counsel is the basis for a continuance, a new hearing shall be scheduled on or before the Tuesday following the original hearing date, without exception.

(ii) Discovery. In appeals under Section 1(a), the parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing. Failure to timely provide any intended exhibit shall preclude its introduction at the hearing.

(iii) Record; Post-hearing Briefs. Unless the parties agree otherwise, all hearings conducted under Section 1(a) of this Article shall be transcribed. Post-hearing briefs will not be permitted absent agreement of the NFL and NFLPA or the request of the hearing officer. If permitted, such briefs shall be limited to five pages (single-spaced) and must be filed no later than three (3) business days following the conclusion of the hearing.

Section 3. Time Limits: Each of the time limits set forth in this Article may be ex- tended by mutual agreement of the parties or by the hearing officer upon appropriate motion.

Section 4. One Penalty: The Commissioner and a Club will not both discipline a player for the same act or conduct. The Commissioner’s disciplinary action will preclude or supersede disciplinary action by any Club for the same act or conduct.

Section 5. Fine Money:
(a) Fines will be deducted at the rate of no more than $2,500 from each pay period, if sufficient pay periods remain; or, if less than sufficient pay periods remain, the fine will be deducted in equal installments over the number of remaining pay periods. For the 2016–2020 League Years, the amount will increase from a rate of $2,500 to $3,500 from each pay period.

(b) For any fine imposed upon a player under Section 1(b), no amount of the fine will be withheld from the player’s pay pending the outcome of the appeal, except that if: (i) the fine is imposed on or after the thirteenth (13th) week of the regular season; (ii) the player or the NFLPA does not timely appeal; or (iii) the hearing on a fine imposed for conduct occurring through the thirteenth (13th) week of the regular season is delayed by the player or the NFLPA for any reason beyond the time provided for in Section 2(b) of this Article, the full amount of the fine shall be promptly collected.

(c) Unless otherwise agreed by the parties, fine money collected pursuant to this Article shall be allocated as follows: 50% to the Players Assistance Trust and 50% to charitable organizations jointly determined by the NFL and the NFLPA. In the absence of said joint determination, the NFL and the NFLPA shall each determine a charitable organization or organizations to which half of the second 50% shall be allocated.

NBA COLLECTIVE BARGAINING AGREEMENT

ARTICLE XXXI

Section 9– Special Procedures with Respect to Player Discipline (pp. 314-319)

(a) A dispute involving (i) a fine of $50,000 or less or a suspension of twelve (12) games or less (or both such fine and suspension) imposed upon a player by the Commissioner (or his designee) for (x) conduct on the playing court (as defined in Section 9(c)(i) below) or (y) for in-game conduct involving another player (as defined in Section 9(c)(ii) below), or (ii) action taken by the Commissioner (or his designee) (A) concerning the preservation of the integrity of, or the maintenance of public confidence in, the game of basketball and (B) resulting in a financial impact on the player of $50,000 or less, shall not give rise to a Grievance, shall not be subject to a hearing before, or resolution by, the Grievance Arbitrator, and shall not be determined by arbitration; but instead shall be processed exclusively as follows:

(1) Within twenty (20) days following written notification of the action taken by the Commissioner (or his designee), the Players Association (with the approval of the player involved) may appeal in writing to the Commissioner.

(2) Upon the written request of the Players Association, the Commissioner shall designate a time and place for hearing as soon as is reasonably practicable following his receipt of the notice of appeal.

(3) As soon as reasonably practicable, but not later than twenty (20) days, following the conclusion of such hearing, the Commissioner shall render a written decision, which decision shall, absent further proceedings pursuant to Section 9(a)(5) below, constitute full, final and complete disposition of the dispute, and shall be binding upon the player(s) and Team(s) involved and the parties to this Agreement.

(4) In the event such appeal involves a fine and/or suspension imposed by the Commissioner’s designee, the Commissioner, as a consequence of such appeal and hearing, shall have authority only to affirm or reduce such fine and/or suspension, and shall not have authority to increase such fine and/or suspension.

(5) If a dispute under Section 9(a)(i)(y) above is not resolved in a manner satisfactory to the player as a result of the procedures set forth in Section 9(a)(1)-(4) above, then the Players Association may (with the approval of such player) seek review of the financial impact of the Commissioner’s decision by filing a written request for such review with the Player Discipline Arbitrator (as provided for below) within ten (10) days following the issuance of such decision, and the following procedures shall apply:

(a) Following receipt of the written request for review, the Player Discipline Arbitrator shall schedule a meeting with the player, the Players Association, and the NBA (and such representatives as each may designate), shall review the relevant facts and circumstances, and shall issue a decision affirming or reducing the financial penalty imposed by the Commissioner. All such meetings shall be in person, shall be held in New York (alternating between the NBA and Players Association offices), and shall be conducted during the month of September following the conclusion of the Season in which the in-game conduct involving another player occurred.

(b) In reviewing the fine and/or suspension imposed upon the player by the Commissioner, the Player Discipline Arbitrator shall have authority only to affirm or reduce the financial penalty associated with such fine and/or suspension (including lost salary). The Player Discipline Arbitrator shall have no authority to review financial penalties automatically imposed as a result of technical fouls, ejections, or the violation of other similar NBA rules that result in the imposition of an automatic penalty (such as the “leaving the bench”rule). The review by the Player Discipline Arbitrator shall be de novo.[2]

(c) The decision of the Player Discipline Arbitrator shall constitute full, final and complete disposition of the dispute, and shall be binding upon the player(s) and

Team(s) involved and the parties to this Agreement. The Player Discipline Arbitrator shall make no public comment regarding the matter.

(d) The Player Discipline Arbitrator shall be selected by agreement between the NBA and the Players Association, shall be a person with experience in professional basketball (such as a former NBA coach, general manager, or player), and shall have expertise with respect to the rules applicable to and conduct of NBA games. In the event that the NBA and the Players Association cannot agree on the identity of the Player Discipline Arbitrator, each party shall simultaneously serve upon the other a list of the names of five (5) individuals meeting the criteria set forth in this Section 9(a)(5)(d) and shall alternate in striking names from such list until only one (1) such name remains; and the individual whose name remains on the list shall be selected as the Player Discipline Arbitrator. (A coin-flip or such other procedure as agreed upon by the NBA and the Players Association shall determine which of such parties shall exercise the first strike.)

(e) The Player Discipline Arbitrator shall serve for the duration of this Agreement; provided, however, that as of January 1, 2013, and as of each successive January 1, either of the parties to this Agreement may discharge the Player Discipline Arbitrator by serving written notice upon him and upon the other party to this Agreement during the period from November 1 through December 1 immediately preceding each such January 1.

(f) If the Player Discipline Arbitrator is discharged (or resigns), the parties shall select a successor Player Discipline Arbitrator in accordance with the procedures set forth in Section 9(a)(5)(d) above.

(b) A dispute involving (i) a fine of more than $50,000 and/or a suspension of more than twelve (12) games that is imposed upon a player by the Commissioner (or his designee) for conduct on the playing court, or

(ii) an action taken by the Commissioner (or his designee) that (A) concerns the preservation of the integrity of, or the maintenance of public confidence in, the game of basketball and (B) results in a financial impact on the player of more than $50,000, shall be processed and determined in the same manner as a Grievance under Sections 2-7 above; provided, however, that the Grievance Arbitrator shall apply an “arbitrary and capricious” standard of review.[3]

(c) (i) As used in this Agreement, “conduct on the playing court” shall mean conduct in any area within an arena (including, but not limited to, locker rooms, vomitories, loading docks, and other back-of-house and underground areas, including those used by television production and other vehicles), at, during or in connection with an NBA Exhibition, All-Star, Regular Season or Playoff game. (By way of example and not limitation, conduct “at” and/or “in connection with” an NBA game shall include conduct engaged in by a player within an arena from the time the player arrives at the arena for an NBA game until the time the player has left the premises of the arena following the conclusion of such game.) Conduct engaged in by a player outside an arena such as, for example, in a parking lot adjacent to an arena, shall not constitute “conduct on the playing court.”

(ii) As used in this Agreement, “in-game conduct involving another player” shall mean conduct occurring during the course of an NBA Exhibition, All-Star, Regular Season or Playoff Game that is exclusively between or among players (and not, for example, involving in any manner a referee, fan, or coach) and that takes place on or adjacent to the playing floor (including the area of the benches), and shall include, but not be limited to, fights, altercations, flagrant fouls, and other similar conduct.

(d)        In the event a matter filed as a Grievance in accordance with the provisions of this Article XXXI gives rise to issues involving the integrity of, or public confidence in, the game of basketball, and the financial impact on the player of the action being grieved is $50,000 or less, the Commissioner may, at any stage of its processing, order that the matter be withdrawn from such processing and thereafter be processed in accordance with the appeal procedure provided in Sections 9(a)(1)-(4) above.

The NFL and NBA CBA’s have certain similarities. Each sets $50,000 as the threshold under which the disciplined player is subject to the Commissioner’s imposition of a penalty without resort to arbitration.

Each carves out a special procedure for dealing with actions taken against other players. For example, in the NFL agreement in instances of unsportsmanlike conduct on the field toward another player, the Commissioner may impose a fine and/or suspension but the appeal is heard by two hearing officers, one selected by each party.

In the NBA, for “in-game conduct involving another player” where a fine of $50,000 or less and/or a suspension of 12 games or less is imposed, the Player’s Association can appeal the Commissioner’s punishment to the Player Discipline Arbitrator. The parties are required under the Agreement to meet with the Player Discipline Arbitrator in person in New York City in September following the season in which the discipline was imposed.

However, for discipline imposed by the NBA Commissioner for conduct “on the court” or necessary for the preservation of the integrity of, or the maintenance of public confidence in the game of basketball, the procedure varies and depends upon whether (1) the fine is over or under $50,000 and/or the suspension is less or more than 12 games[4]. If the penalty assessed is under $50,000 and/or a suspension of 12 games or less, it is not grievable. That is, the player is not entitled to arbitration with a Grievance Arbitrator. The Players’ Association can take an appeal in writing to the Commissioner who conducts a hearing and issues a decision.

If the penalty exceeds the $50,000 fine or a 12-game suspension, the process is different in that it calls for an appeal to a Grievance Arbitrator.  In the more serious category of cases, there is no ability for the NBA Commissioner to appoint himself in his discretion to review the reasonableness of the penalty that he or his designee imposed. This is in stark contrast to the NFL CBA which, while using a similar $50,000 threshold, only requires that where a financial penalty in excess of that amount is to be imposed, the NFL Commissioner first has to consult with the Executive Director of the NFL Players Association.

The NFL Commissioner can, without restriction to cases involving penalties under or over $50,000, serve as the arbitrator who hears the appeal where the incident involves on-the-field conduct or is detrimental to or undermines public confidence in the game. The NBA CBA ensures a more independent process where the alleged violation is severe; in less serious cases with caps on the penalty that the Commissioner can impose, his office is permitted to act as arbitrator for purposes of an appeal.

“On the playing court” discipline was the subject of a lawsuit filed by the NBA seeking declaratory judgment, or a court determination, interpreting the player discipline provision of the CBA ten years ago.

In National Basketball Association v. National Basketball Players Association, Ron Artest, Stephen Jackson, Anthony Johnson & Jermaine O’Neal, 2005 WL 22869 (SDNY 2005) (unreported), the main issue was the Commissioner’s authority to impose a suspension on players for misconduct during a game. On November 19, 2004, the Indiana Pacers and Detroit Pistons played in Detroit. With less than a minute to go in the game, Ron Artest of the Pacers committed a flagrant foul against Ben Wallace which resulted in a shoving match and other players had to separate them. While the referees were trying to sort out the penalties, a fan threw a beverage at Artest and he retaliated by going after the fan in the stands. Stephen Jackson followed behind him and also got involved in the fight. Anthony Johnson left his team bench and confronted a fan. Jermaine O’Neal was stopped by an usher as he tried to run into the seats. A fan got down onto the playing floor and O’Neal hit him.

The day after the game, then-Commissioner David Stern suspended all the players indefinitely until the incident could be investigated. The next day he announced that Artest would be suspended for the entire season; Jackson for 30 games; O’Neal for 25 games; and Johnson for 5 games.[5]

Ronald Klempner appeared for the NBPA and Richard Buchanan was General Counsel to the NBA. Klempner was Deputy General Counsel to the NBPA until Commissioner Michele Roberts replaced him last year with Gary Kohlman and made Klempner senior counsel for collective bargaining.

Each of the players received a letter from the Senior Vice President of NBA Operations, Stu Jackson, informing them of the suspensions. According to the letter from Jackson, the suspensions were based on Section 35(d) of the NBA Constitution. [6] The players’ union took an appeal under the CBA to the Grievance Arbitrator pursuant to Article XXXI. Under that section, the NBPA argued it was entitled to an arbitration hearing because the discipline imposed by the Commissioner was not authorized by the CBA. The NBA objected to having the Grievance Arbitrator hearing the dispute, argued that he had no jurisdiction and indicated it would refuse to participate in any proceedings. The NBA took the position that the Commissioner had the exclusive authority to hear the appeal.

On December 3, 2004, the Grievance Arbitrator, Roger P. Kaplan, Esq,[7] issued a decision In the matter of Arbitration Between the National Basketball Players Association and the National Basketball Association, holding that: “Notwithstanding the provisions of Article XXXI, Section 5(b), I find that the broad arbitration clauses contained in Article XXXI, Section 1 of the CBA and paragraph 17 of the Uniform Player Contract, warrant a finding that I have jurisdiction to determine whether the arbitrability issue raised by the NBA is meritorious.”

The NBA filed a lawsuit the same day in federal court for a legal declaration of the rights of the parties under the CBA. While that was pending, the Grievance Arbitrator conducted an arbitration hearing on December 9, 2004 and issued his arbitration award on December 21, 2004. He found that he had authority to determine whether the dispute could be arbitrated. Having that authority he decided, yes, the case was subject to arbitration; the reason the Commissioner did not have sole authority is because the incident did not take place “on the playing court” as that term was used in Article XXXI, Section 8 of the CBA; and that the Commissioner had just cause to suspend Artest, Jackson and Johnson but O’Neal’s suspension should be reduced to 15 games.

O’Neal had already sat out 15 games so the NBPA moved for emergency relief to force the NBA to comply with the Grievance Arbitrator’s ruling. The federal court ordered that the additional 10 game suspension imposed by the Commissioner should not be enforced at least until the Court could review the underlying issues.

The Court first examined the issue of whether the disciplinary decision by the League could be arbitrated. The NBA argued that the CBA contained both a broadly worded arbitration clause in which all disputes would be arbitrated and a conflicting specific clause assigning certain decisions to the exclusive purview of the Commissioner. Id citing Katz v. Feinberg, 290 F.3d 95 (2d Cir. 2002) (when the language regarding the parties’ intentions to arbitrate are ambiguous, the district court, not the arbitrator, must resolve the issue). The Court’s opinion was that there was no ambiguity and that the NBA Constitution[8] and CBA both reflected the parties’ intention to arbitrate disciplinary disputes.

Next, the Court looked at the NBA’s argument that the Grievance Arbitrator lacked jurisdiction over an issue of substantive, as opposed to procedural, arbitrability. Under the federal Labor Management Relations Act, Congress assigned the Courts the duty of determining whether one side or another broke its contractual promise to arbitrate. The Court found that the issue before the Grievance Arbitrator was not whether the parties intended to arbitrate (see discussion above) but through which process the appeal must be sought (to the Commissioner or to the Grievance Arbitrator) and, therefore, was procedural not substantive.

The Court reasoned as follows:

  • Section 35(h) of the NBA constitution (“Misconduct”) requires any appeal of decisions of the Commissioner must be resolved by the Grievance Arbitrator under the CBA.
  • Article XXXI of the CBA sets forth the general grievance and arbitration procedures that must be followed
  • Article XXXI, Section 8 (“Special Procedure With Respect to Player Discipline) requires any fine or suspension imposed by the Commissioner for a player’s “conduct on the playing court” OR to preserve public confidence in the game resulting in a financial impact to the player of $25,000 or less, is processed exclusively under the authority of the Commissioner to hear any appeal.

Since the financial impact to the players in this case was more than $25,000, the only question was whether the fight should be considered “conduct on the playing court”. If it was, then the Commissioner had exclusive authority. If not, then the Grievance Arbitrator should hear the appeal.

The NBA argued “conduct on the playing court” should mean broadly any “misconduct at or during a game”. The Players’ Union argued it should be narrowly interpreted to mean only “conduct which occurs as part of the playing of the game (such as flagrant fouls, fights between players, confronting referees, etc). The Court looked at the CBA, Player Conduct Memos[9] sent to the players and the history of past grievances. It determined that the meaning of “conduct on the playing court” fell somewhere between the competing definitions offered by the parties.

The Court launched into an extensive review of the use of the competing phrases “on the court” and “off the court” as they were used in the CBA, Uniform Player Contract, Annual Player Conduct Memos and past grievance decisions[10]. The Court reviewed all of the instances of past player discipline for misconduct which was deemed not subject to appeal. It found in every case, unlike the factual circumstance involving Jermaine O’Neal, that the conduct fell under the definition of “on the court” misconduct not subject to appeal by arbitration: “Fighting with or striking a fan has never been characterized as conduct on the playing court. This is understandable since it has absolutely no place in the play of the game of professional basketball…This dispute is not about the Commissioner’s authority to take strong and decisive action to discipline players who strike fans. That authority is unquestionable. However, the NBA’s Player Conduct Memo supports [the Grievance Arbitrator’s] finding that Jermaine O’Neal’s actions in shoving an arena employee and punching a spectator, falls in the category of violence off the court as defined by the NBA’s Player Conduct Memo.

The Court was not asked by the NBA to determine the merits of the Grievance Arbitrator’s decision to reduce Jermaine O’Neal’s suspension to 15 games so it simply denied the NBA’s motion to vacate the Grievance Arbitrator’s award and granted the Players’ Union motion to confirm it. As to the suspensions of the other players the Court, in footnote 10 to its decision wrote:

“Given the unique facts of this case, this decision is limited to the application by defendant O’Neal to confirm the arbitration award as to him. Defendants Johnson, Jackson, and Artest have not moved to confirm the arbitration award as to them. The record as to them, therefore, will not be confirmed and has no force and effect. The arbitration award relating to defendants Artest, Jackson and Johnson does not change the period of their suspensions…”

In other words, because the Grievance Arbitrator upheld the Commissioner’s suspensions of those players and neither the NBA (because it was arguing the Grievance Arbitrator lacked authority over the issue) nor the NBPA (because the Grievance Arbitrator’s award did not reduce the suspensions) moved to confirm the award, the issue was not before the Court to decide.

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The NBA arbitration rules for player discipline are more detailed and multi-dimensional than the NFL counterpart. An argument can be made that a “serious” penalty in the NBA, one which can be appealed to a Grievance Arbitrator, constitutes 15.8% (at least 13/82 games) of the season. If a suspension of 13 games or more is imposed by the Commissioner, he does not have authority to hear the appeal.

The equivalent percentage of game suspensions in football is between 2 and 3 games (2/16th of the season or 12.5% or 3/16 games or 18.75%). Had the same procedure used in the NBA CBA been used in the case of the NFL “Deflate”gate case, Tom Brady would have been entitled to have a Grievance Arbitrator review the penalties imposed by the Commissioner’s Office. The parties still may have wound up in Court but at least there would have been procedural safeguards in place to ensure less conflict-ridden decision-making.

ENDNOTES:

[1] Article 43 governs non-injury grievance procedures

[2] Under this standard, appellate courts consider legal issues anew, and decide how to interpret and apply the law. Although a trial court’s reasoning on a legal issue may provide a point of comparison for an appellate court, the trial court is not given any deference. The appellate court can, and frequently does, decide the legal issue differently from the trial court.

[3] Arbitrary and capricious is a legal standard by which an appellate court determines whether a previous ruling is invalid because it was made on unreasonable grounds or without any proper consideration of circumstances.

[4] The NBA season is 82 games long. The threshold for determining the applicable arbitration procedure is a suspension lasting under or over approximately 15% of the season.

[5] Five other players were also suspended for their involvement in the incident

[6] NBA Constitution Section 35(d): “If in the opinion of the Commissioner any other act or conduct of a Player at or during an Exhibition, Regular Season, or Playoff game has been prejudicial to or against the best interests of the Association or the game of basketball, the Commissioner shall impose upon such Player a fine not exceeding $35,000 or may order for a time the suspension of any such Player from any connection or duties with Exhibition, Regular Season, or Playoff games, or he may order both such fine and suspension.”

[7] Kaplan graduated from George Washington University Law School in 1968. Kaplan, whose office is in Alexandria Virginia, has been a sports arbitrator since 1989. He has been the grievance arbitrator for the NBA and NBA Players Association and has decided many cases involving Major League Baseball and the NFL Players Association.

[8] NBA Constitution Section 35(h) (attached as an addendum to the Uniform Player Contract): “[e]xcept for a penalty imposed under Paragraph (g) of this Article 35 [relating to players gambling on the outcome of any game]…[a]ny such challenge by a player [to the decisions and acts of the Commissioner pursuant to Article 35] shall be resolved by the Grievance Arbitrator in accordance with the grievance and arbitration procedures of the collective bargaining agreement.”

[9] Every year since 1997 the NBA had sent the players an annual player conduct memo summarizing their duties “on and off the playing court”

[10] The NBA cited the following examples: Patrick Ewing left the bench in connection with an altercation during a game; Clarence Weatherspoon fought with Kevin Willis during a game; Tim Hardaway engaged in improper conduct with a referee and refused to immediately leave the court when ejected; Reggie Miller fought with Kobe Bryant after a game; Ron Mercer fought with another player in the locker room; Gary Trent went into the visiting lockerroom and fought with a player; PJ Brown fought Charlie Ward; Vernon Maxwell entered the spectator area during a game; JoJo English fought with Derek Harper during a game; Shaquille O’Neal used an obscenity during a live tv interview.

“DEFLATE”GATE: Similarities and Differences in the arbitration clauses of the NFL vs. NBA Collective Bargaining Agreements

On Thursday September 3, 2015, Hon. Richard M. Berman, United States District Court Judge for the Southern District of New York, issued a decision in National Football League Management Council v. National Football League Players Association (15-cv-5916 & 15-cv-5982). “Deflategate”, as it is commonly referred to, pitted NFL Commissioner Roger Goodell against New England Patriots quarterback Tom Brady. Judge Berman’s decision provides a detailed analysis of the NFL CBA’s arbitration clause pertaining to the procedure for imposing discipline for on-field player conduct.[1] The NFL had imposed a 4-game suspension on Brady for his alleged complicity in using footballs that were underinflated during the AFC Championship game against the Indianapolis Colts on January 8, 2015. The Decision resolved the parties cross-motions to confirm or vacate the July 28, 2015 arbitration award imposed pursuant to Section 301 of the Labor Management Relations Act (29 USC 185) and the Federal Arbitration Act (9 USC 10).

This article compares player discipline under the CBA’s of the NFL and the NBA. The article will be divided into two parts: (1) background of “Deflate”gate and Judge Berman’s decision and (2) comparison of the NFL and NBA CBA’s provisions for arbitrating player disciplinary matters.

TIMELINE AT ISSUE IN THE “DEFLATE”GATE CASE

  • 1/8/15 — AFC Championship Game
  • 1/23/15 — NFL announces that NFL Executive Vice President and General Counsel Jeff Pash and Theodore V. Wells of Paul, Weiss, Rifkin, Wharton & Garrison will conduct an investigation into allegations that footballs used in the game were intentionally underinflated to give Tom Brady an advantage because he preferred to use “softer” footballs (“Pash/Wells investigation”)
  • 3/6/15— the day that that he was interviewed by Mr. Wells and his investigative team- Mr. Brady instructed his assistant to destroy the cellphone that he had been using since early November 2014, a period that included the AFC Championship Game and the initial weeks of the subsequent investigation
  • 5/6/15— 139-page “Pash/Wells” investigative report made public
  • 5/11/15— NFL Executive Vice President Troy Vincent sends separate disciplinary letters to Tom Brady and Robert Kraft, owner of the Patriots, notifying them that based on the findings of the report the NFL will impose a 4-game suspension on Brady and fine Kraft one million dollars; in addition, the Patriots will forfeit their first round pick in the 2016 draft and their fourth round pick in the 2017 draft.[2]
  • 5/14/15— Brady through the Players Association, appealed the four-game suspension. Commissioner Goodell designated himself as arbitrator to hear Brady’s appeal pursuant to CBA Art. 46 § 2(a), which provides that “the Commissioner may serve as hearing officer in any appeal under Section l(a) of this Article at his discretion.” [3]
  • 5/19/15– The Players Association filed a motion seeking Goodell’s recusal[4] from arbitrating Brady’s appeal, arguing that he could not lawfully arbitrate the dispute because Goodell was a central witness and that he had publicly prejudged the outcome apparently referring to remarks Goodell had made in the press.
  • 6/22/15-– Commissioner Goodell denied Brady’s document request citing to CBA Article 46: “[i]n appeals under Section I(a), the parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing.” Goodell stated that “the collective bargaining agreement provides for tightly circumscribed discovery and does not contemplate the production of any other documents in an Article 46 proceeding other than under these terms.” Commissioner Goodell granted the motion to compel the testimony of Wells, but denied the motion to compel the testimony of designated co-lead investigator Pash. With regard to Pash, Commissioner Goodell contended “[b]ecause Article 46 of our Collective Bargaining Agreement does not address the permitted scope of witness testimony at appeals hearings, it is within the reasonable discretion of the hearing officer [Goodell] to determine the scope of the presentations and, where appropriate, to compel the testimony of any witnesses whose testimony is necessary for a hearing to be fair.” Goodell stated that “Jeff Pash, the NFL’s general counsel, does not have any first-hand knowledge of the events at issue here”.[5]
  • 6/23/15— Brady and the Patriots appealed from disciplinary decision letter and an arbitration hearing was conducted before NFL Commissioner Roger Goodell pursuant to Article 46 of the NFL CBA—transcripts of hearing made public this date
  • 7/28/15— Commissioner Goodell issues final decision in the Article 46 appeal. He vacates team penalties but affirms Brady’s 4-game suspension. The NFL League Management Council files a Civil Complaint in federal court in New York City requesting that it adopt the findings of the arbitrator giving the decision force of law[6]
  • 8/4/15— The NFL Players’ Association files an Answer to the League’s Complaint and a Counterclaim in US District Court for the SDNY. The Counterclaim requests that the Court vacate the arbitration decision.
  • 8/7/15— NFLPA files a memorandum of law with the Court
  • 8/7/15— the NFL Management Council files a memorandum of law
  • 8/12/15 & 8/19/15 — The Court hears oral argument from the attorneys on the competing motions to affirm or vacate the arbitration decision

The Federal Court’s Analysis

Judge Richard M. Berman is a federal district court judge in the Southern District of New York, which hears cases in Manhattan where league offices are located. Judge Berman has served on the Court since October 21, 1998 after having been nominated by President Bill Clinton. He has been on senior status since September 11, 2011. Others who have served as judges of the Court include Justice Sonia Sotomayor. The Southern District has heard many cases with historical significance including, for example, claims arising from the sinking of the Titanic and the New York Times’ Pentagon Papers.

The NFL was represented by a team led by Daniel L. Nash of Akin Gump. Mr. Nash is a well-known labor and employment lawyer in Washington DC. He has defended professional sports leagues and member teams in a number of cases ranging from the obligation of a team to pay player medical coverage during a lockout to claims of bad faith bargaining in a contract dispute.

The NFLPA and Brady were represented by Jeffrey Kessler of Winston Strawn. Mr. Kessler’s major clients include the National Football League Players Association and the National Basketball Players Association. His reputation is as an anti-trust and intellectual property lawyer for clients with international interests. He has represented professional sports unions, CAA (a U.S. based international sports and entertainment agency) and is perhaps best known for negotiating the current free agency/salary cap systems in the NFL and NBA. He represented Michael Vick in his roster bonus arbitration, Plaxico Burress in his Signing Bonus arbitration, and now Tom Brady.

After extensive settlement negotiations failed to resolve the case, Judge Berman issued a Decision reversing the NFL’s decision to suspend Brady for four games. The Court relied on the same factual findings in the Pash/Wells investigative report and the documents and testimony comprising the record of the arbitration proceedings:

“An arbitrator’s factual findings are generally not open to judicial challenge, and we accept the facts as the arbitrator found them”. (citing Westerbeke Com. v. Daihatsu Motor Co.. Ltd., 304 F.3d 200, 213 (2d Cir. 2002); see also Int’l Bhd. of Elec. Workers. Local 97 v. Niagara Mohawk Power Com., 143 F.3d 704, 726 (2d Cir. 1998).

The Court concluded that the facts required the arbitrator’s decision to be reversed. More frequently, arbitration decisions are upheld because of the deference given to those decisions except where there are serious doubts about the legality of the process:

“The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated. The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four- game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes. “

The Court’s decision was anchored in three primary findings: (1)that the arbitrator failed to follow the applicable law governing the CBA; (2)the player was denied due process or law by not having notice of the reasonable consequences that would be imposed for his conduct; and (3) the player was denied reasonable access to documentation and witnesses undermined the fairness of the arbitration.

The first two of these grounds were summed up by Judge Berman as follows:

“When it is clear that the arbitrator ‘must have based his award on some body of thought, or feeling, or policy, or law that is outside the contract[] and not incorporated in it by reference … the arbitrator has failed to draw the award from the essence of the collective bargaining agreement.” In re Marine Pollution Serv.. Inc., 857 F.2d 91, 94 (2d Cir. 1988) (quoting Ethyl Corn. v. United Steelworkers, 768 F.2d 180, 184-85 (7th Cir. 1985), cert. denied I 06 S. Ct. 1184); see also Bounty-Gate, slip op. at 6 (“In other words, rightly or wrongly, a sharp change in sanctions or discipline can often be seen as arbitrary and as an impediment rather than an instrument of change.”). It is the “law of the shop” to provide professional football players with (advance) notice of prohibited conduct and of potential discipline. See. e.g., Langhorne, slip op. at 25 (“Any disciplinary program requires that individuals subject to that program understand, with reasonable certainty, what results will occur if they breach established rules.”). Because there was no notice of a four-game suspension in the circumstances presented here, Commissioner Goodell may be said to have “dispense[d] his own brand of industrial justice.” 187 Concourse Assocs., 399 F.3d at 527 (citation omitted). “When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement ofthe award.” United Steelworkers of Am. v. Enter. Wheel & Car Com., 80S. Ct. 1358, 1361 (1960).”

Brady had been disciplined pursuant to the Competitive Integrity Policy which is provided to Chief Executives, Club Presidents, General Managers, and Head Coaches. As a player, Brady was not provided with the Competitive Integrity Policy. Brady was given a document called League Policies for Players [Player Policies]. In relation to these two policies, Judge Berman specifically noted:

“This is what the players are given. And it’s interesting. It said ‘for players.’ What is not here is the competitive integrity rule [Competitive Integrity Policy] that Mr. Wells used in his report or anything about it…and it’s clear Mr. Wells didn’t use this [Player Policies]; he used the other one [Competitive Integrity Policy] … And by the way, the fine is $5,512 for the first offense. That’s it. That’s the only notice that a player has ever had about anything regarding equipment is in the [P]layer’s [P]olic[ies]”

The Players Association argued that “[t]he basis for Brady’s punishment was the very narrow finding in the Wells Report [and reiterated in the Vincent Disciplinary Decision Letter] that [Brady] was … ‘generally aware’ of ball deflation by two members ofthe Patriots equipment staff.” The League argued that Brady’s intentional deletion of his cell phone content upon being notified of the investigation violated his obligation to cooperate with the investigation and constituted an act that went beyond “general awareness” and was a separate basis for discipline.

The Court agreed with the Players Association finding no NFL policy or precedent provided notice that a player could be disciplined, including suspended, within the meaning of the Wells Report/Vincent Disciplinary Decision Letter finding of “generally aware”.

Question [Court]:

I am not sure I understand what in the world that means, that phrase. So, it says: at least generally aware of the inappropriate activities of Mr. McNally and Jastremski involving the release of air from Patriot game balls. So, I don’t know what that is. You know, did he [Brady] know that McNally took the balls unaccompanied into the bathroom? Did he know that in the bathroom, if in fact it happened, McNally deflated the balls? Did he know that McNally then went on to the field with the balls? See Decision at p. 25

Further, the player’s duty to cooperate with a league investigation was spelled out in an updated memorandum sent on February 11, 2014 to Team Coaches and Executives by Commissioner Goodell but not to players. So with regard to the deletion of cell phone content, Judge Berman did not find a substantive violation of a rule of which the player had been put on notice.[7]

The third ground that the Court anchored its determination on was the fact that Commissioner Goodell denied Brady’s request that certain investigative documents be turned over and that he be allowed to call NFL General Counsel Jeff Pash as a witness.

The Court cited the Ray Rice case, in which the judge held that the “key elements of a ‘fundamentally fair hearing”‘ include a grievant’s ability to “present evidence and cross-examine witnesses,” and that an arbitrator should “compel(] the witnesses necessary for the hearing to be fair.” Def.’s Countercl. Ex. 166E, Ray Rice Order on Discovery and Hearing Witnesses at 1-2 (quoting Kaplan, 1996 WL 640901, at *5). Commissioner Goodell was ordered to testify in the Ray Rice arbitration with the Court concluding that “[t]o limit the available witnesses knowledgeable about the content of that meeting to the individuals the NFL is willing to produce would prevent Mr. Rice from presenting his case and runs the risk of providing an incomplete picture of the content of a meeting that both parties have identified as critical.” Id.

There was precedent for the League’s argument that arbitrators are “endowed with discretion to admit or reject evidence and determine what materials may be cumulative or irrelevant.” Abu Dhabi Inv. Auth. v. Citigroup. Inc., No. 12 Civ. 283 (GBD), 2013 WL 789642, at *8 (S.D.N.Y. Mar. 4, 2013) aft’d. 557 F. App’x 66 (2d Cir. 2014) cert. denied, 135 S. Ct. 137, 190 L. Ed. 2d 45 (2014). Nevertheless, Judge Berman found that Commissioner Goodell improvidently limited Brady’s right to due process by limiting his access to specific documents and witnesses.

ENDNOTES:

[1] Both the NFL & NBA CBA’s are notable for the multiple provisions defining various types of arbitrators. This article is limited to discipline imposed by the Commissioner or his designee for game related player conduct.

[2] “On May II, 2015, Vincent sent a (separate) “disciplinary decision” letter to Brady, stating: “The Commissioner has authorized me to inform you of the discipline that, pursuant to his authority under Article 46 of the CBA [Collective Bargaining Agreement], has been imposed on you for your role in the use of under-inflated footballs by the Patriots in this year’s AFC Championship Game. This activity represents a violation of longstanding playing rules developed to promote fairness in the game.” Vincent Letter to Brady cited at page 9 of Judge Berman’s Decision.

[3] Paragraph 15 of the standard NFL Player Contract states as follows: Player recognizes the detriment to the League and professional football that would result from impairment of public confidence in the honest and orderly conduct of NFL games or the integrity and good character of NFL players. Player therefore acknowledges his awareness that if he accepts a bribe or agrees to throw or fix an NFL game; fails to promptly report a bribe offer or an attempt to throw or fix an NFL game; bets on an NFL game; knowingly associates with gamblers or gambling activity; uses or provides other players with stimulants or other drugs for the purpose of attempting to enhance on-field performance; or is guilty of any other form of conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football, the Commissioner will have the right, but only after giving Player the opportunity for a hearing at which he may be represented by counsel of his choice, to fine Player in a reasonable amount; to suspend Player for a period certain or indefinitely; and/or to terminate this contract.

[4] During the New Orleans Saints Pay-for-Performance investigation (“Bounty-Gate”), Commissioner Goodell recused himself, and appointed, as independent arbitrators, former U.S. District Judge Barbara S. Jones and former NFL Commissioner Paul J. Tagliabue

[5] Judge Berman noted in his Decision that Goodell failed to address the fact that Pash had reviewed a draft of Well’s report of investigation before it was finalized and made public.

[6] On July 29, 2015, the National Football League Players Association (“Players Association” or “Defendant”) filed a Petition to Vacate the Arbitration Award in the United States District Court for the District of Minnesota. The Minnesota matter was immediately transferred to the Southern District of New York under docket number 15 Civ 5982 by U.S. District Judge Richard H. Kyle pursuant to the”first-to-file”rule. See National Football League Players Association v. National Football League Management Council, Civ. No. 15-3168 (RHK/IHB), slip op. at 2 (D. Minn. July 30, 2015). The Minnesota district court had been favorable to the NFLPA during litigation dating to the 1980s.

[7]“Actual or suspected violations will be thoroughly and promptly investigated. Any club identifying a violation is required promptly to report the violation and give its full support and cooperation in any investigation. Failure to cooperate in an investigation shall be considered conduct detrimental to the League and will subject the offending club and responsible individual(s) to appropriate discipline” (Sec. A2 of the Game Operations Manual for Member Clubs. (2014 ed. Game Operations Manual)

NBA Collective Bargaining Agreement Status- Introductory Post

 

The Collective Bargaining Agreement of the National Basketball Association is the contract between the 30 team owners (represented by the Commissioner) and the Players union (National Basketball Players Association/NBPA).  The CBA defines business relationships in the League by providing rules about player contracts, eligibility for the draft, trades, revenue sharing, and salaries, among other things.  The CBA is a document negotiated by the parties and given effect for a certain defined period.

History

In June 2005, the NBA’s 1999 CBA expired, meaning the League and the players union had to negotiate a new agreement; in light of the fiasco that was the 2004-05 NHL lockout, the two sides quickly come to an agreement and ratified a new CBA in July 2005.  This agreement expired following the 2010-11 season, leading to the 2011 NBA lockout.  A new CBA was ratified in December 2011 ending the lockout.  http://en.wikipedia.org/wiki/NBA_Collective_Bargaining_Agreement

In the 1999 and 2005 CBA’s the salary cap remained substantially unchanged.  In 2005, the NBPA agreed to what is now considered a controversial player age minimum for draft eligibility.  In return, the players received slightly increasing shares of League revenues.  However, under the 2011 CBA the percentage of revenue dropped from 57% to 50%.

The 2011 CBA contains an opt-out provision effective June 2017 whereby either party would have to give notice of their intent to terminate the agreement in December 2016. The Executive Director of the NBPA, Michele Roberts, and NBA Commissioner Adam Silver have both made public statements that their respective clients may exercise the option.   Michele Roberts has gone on record saying that she wanted to get the parties to the bargaining table well in advance of the CBA deadline. (http://www.si.com/nba/2015/06/10/nba-nbpa-collective-bargaining-agreement-negotiations-august).  Contract talks started last month.

The issues that are likely to top the agenda include:

  • Increases due to the salary cap
  • Division of Basketball-Related Income (BRI) between owners and players, including revenues from lucrative television deals
  • Minimum age restriction for entry into the Draft—either raising it from 19 to 20 years old (Commissioner David Silver’s position) or lowering it to 18 (NBPA position)
  • Rookie and Minimum pay scales

Roberts is the first woman in NBA history to be elected Executive Director of the players’ union. In turn, the NBPA is the only major professional sports union (NFL, NHL, MLB) to be led by a woman.

Roberts, does not come from a background in labor negotiations. She graduated from the University of California at Berkeley and spent the first eight years of her legal career as a public defender in Washington D.C. Her reputation as a top criminal defense lawyer was solidified with an acquittal in a high profile homicide case. After that Roberts took positions at white collar defense firms in D.C. including Skadden, Arps, Slate, Meager and Flom where she worked until she was elected to the position of NBPA Executive Director in 2014.

The players had been without a permanent Executive Director since they unanimously voted out Billy Hunter at the All-Star break in 2013.  Hunter had served as union chief since 1996 but was removed after an independent report cited questionable business practices, among other things, extending a contract without union approval. http://www.washingtonpost.com/sports/union-head-michele-roberts. Former Deputy General Counsel Ron Klempner served as “acting” Executive Director until Roberts beat out over 300 other candidates at a vote in Las Vegas last year.http://www.forbes.com/sites/darrenheitner/2014/10/20/national-basketball-players-association-picks-new-general-counsel.

Despite her criminal defense background, Roberts pitched herself as someone that had plenty of experience in high-pressure negotiations if not strictly in the labor-employment realm. Her track record of being able to convince juries to vote her way spoke to what the players wanted in an Executive Director – someone willing to go to battle for them who was a proven winner.

Prior to August 2014, Roberts took steps took steps to appoint experienced lawyers to her negotiating team. She kept Ron Klempner and named him Senior Counsel for Collective Bargaining.  Gary Kohlman, a reknowned Washington D.C. labor and employment lawyer was appointed General Counsel.  The remainder of the senior management team of is made up of former NBA players and the former president of the NFLPA.http://nbpa.com/nbpa-executive-director-michele-roberts-announces-initial-appointments-nbpas-senior-ma/.

Commissioner Silver, who was appointed to his position six months before Roberts was elected, will lead the negotiations on behalf of the owners.

CBA line by line

 The 2011 Collective Bargaining Agreement and Exhibits runs over five hundred pages. The NBPA has published a 38 page summary available on the union’s website. A more in-depth 93 page summary in question and answer format is available at Larry Coon’s NBA Salary Cap FAQ.http://www.cbafaq.com Larry Coon is a computer scientist who designed a way to pull information relevant to a particular subject area or question from discrete parts of the document. Professor Coon’s copyrighted summary is a valuable resource. In July 2015, Daniel Leroux began installments of the CBA Encyclopedia for RealGM.com (www.basketball.realgm.com/news/analysis/tags/CBA-Encyclopedia)

I have read the entire Collective Bargaining Agreement. The above-referenced summaries are useful to give sophisticated fans a context for the legal terminology used in the document. In the coming year we will be dealing with CBA issues, the resolution of which will determine whether NBA basketball is played in 2017-2018 and what it might look like. From a lawyer’s point of view, this negotiation is equivalent to a season of legal all-star games.

To appreciate the maneuvers, passes, scores and pace of what we’ll see happen at the bargaining table, we have to examine how the relevant provisions of the CBA impact both owners and players. Aside from the potential that one side or the other will opt out of the CBA next year placing the 2017-2018 season in jeopardy, fans will also be affected by a variety of other financial decisions made by each side.

In this blog, I will identify the specific provisions, pages or sections that are going to be in “play”, quoting the exact language of the agreement. I will also provide additional background and pedigree information on the lawyers representing both sides. Complex negotiations are difficult to report on because of the subject matter and time constraints inherent in most media formats.  I think fans would genuinely be interested in understanding the negotiation process if more complete information was available.  A blog may be an effective platform for that purpose.