Employment Law Daily NFL suspension of running back not based on unfairly retroactive domestic violence policy
Monday, August 8, 2016

NFL suspension of running back not based on unfairly retroactive domestic violence policy

By Dave Strausfeld, J.D. Noting the narrow scope of judicial review of a labor arbitration award, the Eighth Circuit upheld a suspension and fine imposed on NFL running back Adrian Peterson over an alleged domestic violence incident. Reversing the district court, the appeals court found that the arbitrator was at least arguably construing the CBA and the law of the shop when he refused to overturn a suspension and a fine equivalent to six games’ pay. The Minnesota Vikings player argued that a new disciplinary policy was unfairly applied retroactively to him and that he should have been suspended and fined for at most two weeks, not six weeks (NFL Players Association v. National Football League, August 4, 2016, Colloton, S.). Claimed six-week suspension was too harsh. During the 2014 football season, the NFL Commissioner suspended the star NFL player and fined him a sum equivalent to six games’ pay after he pleaded nolo contendere to a charge of misdemeanor reckless assault on one of his children. The suspension and fine were based on the Commissioner’s recently beefed-up enforcement of its domestic violence policy in response to public outcry at the league’s perceived lenient treatment of another player, Ray Rice, who was charged with domestic violence. Before a labor arbitrator, Peterson argued that the incident with which he was charged occurred before the harsher penalties were announced, so the Commissioner should have assessed him no more than a two-game suspension, which he had already served, and a two-week salary fine. When the arbitrator upheld the six-week fine, Peterson (represented by the NFL Players Association) petitioned the district court to vacate the arbitration decision, which it did. The district judge agreed with Peterson that the Commissioner had retroactively applied the post-Ray Rice penalties to him in violation of the CBA and past practice on retroactive application of League policies. Arbitrator "arguably construed" CBA. At this point, the NFL asked the Eighth Circuit to step in, and it sided with the league. In an arbitration case like this one, the appeals court emphasized, the role of the courts is very limited. So long as the arbitrator is "even arguably" construing the contract and acting within the scope of his or her authority, the arbitral decision must stand. The essence of Peterson’s challenge to the penalty imposed on him was that the arbitrator ignored the "law of the shop" that forbade the retroactive application of a new disciplinary policy. But the principle of deferring to an arbitrator who is "even arguably" construing the CBA also holds true for an arbitrator who is "even arguably" construing the law of the shop, the appeals court stressed. Here, the arbitrator considered the CBA, the NFL’s written policies on player conduct, and the law of the shop, concluding that the Commissioner had discretion to impose a six-game suspension and fine on Peterson. As the arbitrator viewed it, the enhancement of ieague discipline in the wake of the highly publicized Ray Rice matter was a "clarification" of the personal conduct policy rather than a change to it. Because the arbitrator was at least arguably construing the relevant documents and information when he upheld the six-game suspension and corresponding fine, his decision was "not subject to second-guessing by the courts." Impartial arbitrator? On another issue, Peterson contended that the arbitrator who was selected to hear his case—a man who had previously served as chairman of the NFL Management Council Executive Committee—was not impartial. But this challenge, the Eighth Circuit found, was foreclosed by its 2009 decision in Williams v. National Football League. There, an NFL player raised a virtually identical argument, and the appeals court held that the Players Association had waived this objection by agreeing in the CBA to allow the Commissioner to designate the arbitrator. It was true, the appeals court noted, that allowing the "Commissioner’s designee to hear challenges to the Commissioner’s decisions may present an actual or apparent conflict of interest for the arbitration." But the parties bargained for this procedure, and it was explicitly contained in the CBA. Under the circumstances, the Players Association could "ask no more impartiality than inheres in the method they have chosen," in the words of another Eighth Circuit decision. Finding no basis to overturn the arbitrator’s decision on any grounds, including "evident partiality" of the arbitrator, the appeals court reversed the district court and remanded with directions to dismiss the petition.

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