NFL teams
Lester Munson, Legal Analyst 9y

NFLPA lawsuit a perfect loser

NFL, Minnesota Vikings

The NFL Players Association's lawsuit attacking an arbitrator's decision to uphold Adrian Peterson's indefinite suspension is a masterpiece.

Its language is compelling and dramatic. Its legal arguments are powerful and well documented with legal precedents. Its indignant tone is just right. But it's up against a long-established fact of American law: Judges rarely overturn the decisions of arbitrators.

In the first sentence of a finely crafted, 75-page petition, the lawyers representing the union and Peterson acknowledge their problem when they state that their lawsuit presents "the rare arbitration award that must be set aside."

The use of the word "rare" is a stretch. "Almost never" is more like it. There is an exception every now and then, but they are few in number.

The theory of the union lawyers is that the NFL's actions and arbitrator Harold Henderson's decision are so clearly violations of rules of fundamental fairness that any judge must take an action that most judges would never consider.

The lawyers have a point. Both NFL commissioner Roger Goodell and Henderson, a former NFL executive, did some things that would be unacceptable if they were tested in an ordinary court proceeding. But an attempt to reverse an arbitrator's ruling is far from an ordinary court proceeding. It begins and ends with the idea that American judges do not want to enter the business of reviewing decisions made in arbitrations.

Here are some of the actions and decisions that the union and Peterson say are the basis for their lawsuit:

• As the union lawyers explain in impressive detail, Goodell used the league's new personal discipline police against Peterson even though Peterson's attack on his son occurred four months before the new policy was enacted. The use of the new policy and its procedure of indefinite suspension is a clear violation of the standards of due process established in the U.S. Constitution and violate the ban on applying new punishments retroactively to old misconduct.

Under the old policy, the union argues, the commissioner's disciplinary authority was limited to a two-game suspension.

• Henderson, who was the NFL's executive vice president for labor relations for 16 years and was appointed to arbitrate the Peterson appeal by Goodell, used material in his written opinion that was never presented to him during the two days of arbitration hearings. In what the union lawyers call his "desperation to summarily ratify [Goodell's] indefinite suspension," Henderson wrote that Peterson "similarly beat his other children" and "that he had beaten this child on a prior occasion." There was no testimony about any other beatings in the hearing, the union lawyers assert, and Henderson took the information from "unverified newspaper articles."

Peterson testified to Henderson, according to the lawsuit, that "he was very sorry for having injured his son, that he had learned from his mistake, and that it would never happen again."

• Henderson, according to the union lawyers, was "evidently partial." After serving as a senior executive of the league from 1991 to 2012, Henderson was "put in the position of ruling as an arbitrator on the conduct of NFL executives to whom he is closely connected." The lawyers rely on cases from higher courts that found arbitrators to be "evidently partial," including a case involving an NFL arbitration hearing in 2008.

• Relying on recordings of two telephone calls that Troy Vincent, an NFL vice president, made to Peterson on Nov. 12 and Vincent's visit to Peterson's home on Nov. 10, the union argues that Vincent told Peterson that he had "already paid the price" and would be reinstated after a two-game suspension. The lawsuit quotes extensively from the phone calls and from Vincent's testimony at the arbitration hearing. In the second phone call, Vincent assures Peterson he would be punished only under the old personal conduct policy with a two-game suspension without pay:

Peterson: "I get the two games?"

Vincent: "Yeah."

Peterson: "So basically two game checks."

Vincent: "Um, I'm not sure what the actual -- but I think they were talking about potentially having you come back and that two game, now this is the two games, one would be -- that includes this weekend."

The "they" in Vincent's statements: NFL executives, including Goodell, who met daily to discuss the Peterson situation.

In a clever and bold attempt to show the court that this arbitration award was the "rare" award that must be overturned, the union lawyers stated that they "do not seek any discovery in this proceeding." That means the lawyers are ready to appear in court quickly and to rely on what they have said in the lawsuit. Instead of the usual procedure of taking pretrial sworn testimony from, say, Goodell and Vincent, they are telling the judge that their case is so strong they don't need the usual pretrial protections and procedures.

But despite what appear to be egregious actions by Goodell, Henderson and Vincent, the union and Peterson may be doomed. The law is not on their side. The U.S. Supreme Court made it clear in 2001 in a decision on a Steve Garvey claim for collusion damages: In an 8-1 decision, the high court ruled that when an arbitrator makes an "improvident, even silly" decision, the errors in the decision do "not provide a basis for a court to refuse to enforce" the arbitrator's decision.

This type of case is discussed by law students and law professors every year in every course on labor law in every law school. Despite the eloquence and the power of the lawsuit prepared by the union's lawyers, Peterson can expect to remain indefinitely suspended.

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