If Judge Richard Berman upholds the NFL, ain’t nobody gonna get an arbitrator’s ruling overturned in the Southern District of New York anymore.
And that has to be a hard reality for Berman to consider – how low he would be setting the precedent for arbitrator behavior.
That’s because the NFL’s case is such an outlier – the arbitrator hearing the appeal being the same person who handed down the discipline; the arbitrator failing to show impartiality by withholding a witness during the appeal and mischaracterizing testimony in his ruling – that it’s hard to foresee a future case being more evidently impartial than this one.
If Berman can’t force a settlement, he would be linked to a precedent which would force every subsequent judge to rubber-stamp every arbitration appeal that comes through that courthouse because of the circumstances of the NFL’s case and the role and behavior of the man who heard the appeal.
Yes, the NFLPA agreed to allow the commissioner, Roger Goodell, to hear appeals in their most recent collective bargaining agreement. But labor law demands the arbitrator be fair and impartial. Goodell, in not allowing the NFLPA to question Wells Report editor and co-lead investigator Jeff Pash -- who also happens to be a high-ranking league attorney -- flouted fairness.
For Berman, vacating Goodell’s appeal ruling might actually be the easier course of action in terms of precedent. This is a rare case, as the NFL itself pointed out in its opening statements in court on Aug. 12, because of Goodell’s role in hearing an appeal of his own punishment. Future appeals looking to use this case as precedent to have their own cases vacated would have to replicate this dynamic. And very few would be able to.
There are legal experts who make it seem as if Berman’s hands are tied. That an arbitrator’s decision can’t be overturned if the two sides collectively bargained to have said arbitrator hear the case.
ESPN legal analyst Lester Munson has a pretty strident story out on Friday making that case.
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In it, he notes, “The rule that judges should not tamper with an arbitrator's decision is so well recognized and obvious that a U.S. Supreme Court opinion involving Steve Garvey was issued in 2001 as a per curiam decision. That means the ruling was not only unanimous, it should have been clear to all concerned that there was no reason for the case to be considered at the high court level.
The nation's highest court ruled that even when an arbitrator's decision was "improvident or even silly," it does "not provide a basis for a court to refuse to enforce the award." Even when the federal judge considering the arbitration award is "convinced that the arbitrator committed serious error, it does not suffice to overturn [the arbitrator's] decision," the court ruled.
To make sure everyone understood its ruling, the Supreme Court went so far as to say in the Garvey decision that even when the arbitrator's "procedural aberrations rise to the level of affirmative misconduct," a federal judge may not "interfere with an arbitrator's decision that the parties [players and owners] bargained for."
Let’s be clear, Munson’s taken more law classes than I have.
But I was sitting in the courtroom two days ago when Berman told NFL Management Council attorney Daniel Nash, “I believe some arbitration awards have been vacated” when the arbitrator doesn’t allow a witness to be questioned during an appeal as Goodell did with Pash.
As NFLPA attorney Jeffrey Kessler pointed out, 18 arbitration decisions have been vacated in the Southern District of New York over the years including one -- by Berman -- as recently as May.
Nor does Munson even allude to what makes this entire case unique -- the sitting arbitrator handed down the initial decision. That wasn’t present in Garvey. Had it been, how closely that arbitrator hewed to following procedure would have likely been examined closely.
Which is what Berman is doing in this case. The judge is being asked to swallow that Goodell A) ignored or mischaracterized testimony from Brady in handing down his appeal ruling, B) conflated a “destroyed” cell phone into the cornerstone of his appeal ruling and C) withheld witnesses from the NFLPA.
If Berman says all that’s okay by validating the NFL? That precedent will stay with him long after he’s retired.