On August 4, 2016, the US Court of Appeals for the Eighth Circuit reached a conclusion about an “evident partiality” challenge to a National Football League (NFL) arbitration. The challenge was over a football player’s suspension that is substantively identical to the conclusion reached by the Second Circuit in the Deflategate/Tom Brady dispute—that a union and the employer’s representative may agree in a collective bargaining agreement upon a process for selecting an arbitrator that results in an individual with close ties to the employer’s representative being selected as the arbitrator.
The facts in National Football League Players Association, on its own and on behalf of Adrian Peterson, v. National Football League and National Football League Management Council, No. 15-1438 (8th Cir. August 4, 2016) involved an arbitration in which Adrian Peterson, a star running back for the Minnesota Vikings, was suspended as a disciplinary matter for hitting his son “with a tree branch as a form of corporal punishment.” To hear Peterson’s and the Players Association’s challenge to the suspension, Mr. Harold Henderson was appointed by the League as the sole arbitrator pursuant to the collective bargaining agreement between the League and the Players Association. Henderson was formerly a senior official of the NFL responsible for matters related to discipline and currently is president of a charity affiliated with the League.
“Henderson is the president of the Player Care Foundation, a League-affiliated charity. He previously served for sixteen years as the League’s vice president for labor relations and chairman of the NFL Management Council Executive Committee.”
The Players Association asked Henderson to “recuse himself from the hearing due to his close ties to League officials and his role in shaping the League’s disciplinary policies. Henderson denied the request, noting that the Association had not objected to his designation as arbitrator in dozens of past disciplinary appeals.”
In the arbitration, Henderson upheld Peterson’s suspension. Peterson and the Players Association then challenged that ruling in court, and the dispute eventually reached the Eight Circuit Court of Appeals. Most of the issues on appeal dealt with the proper standard for judicial review of an arbitration award, with the appellate panel applying a deferential standard and upholding the arbitration award. Towards the end of the appellate opinion, though, the Eight Circuit addressed a challenge to the award based on the assertion that Henderson was “evidently partial” and thus the award should be vacated. The court rejected that challenge, relying like the Second Circuit in the Deflategate opinion, on party autonomy and waiver reasoning:
The Association first asserts that Arbitrator Henderson was “evidently partial,” because he demonstrated “such a degree of partiality that a reasonable person could assume that the arbitrator had improper motives.” Dow Corning Corp. v. Safety Nat’l Cas. Corp, 335 F.3d 742, 750 (8th Cir. 2003) (quotation omitted). In Williams v. National Football League, 582 F.3d 863 (8th Cir. 2009), an NFL player raised a virtually identical challenge to the League’s general counsel serving as an arbitrator in a dispute arising under the previous collective bargaining agreement. We held that the Association had “waived its objection to [the general counsel] serving as arbitrator by agreeing in the CBA that the Commissioner’s designee . . . could serve as arbitrator.” Id. at 885–86. Allowing the Commissioner or the Commissioner’s designee to hear challenges to the Commissioner’s decisions may present an actual or apparent conflict of interest for the arbitrator. But the parties bargained for this procedure, and the Association consented to it. See CBA art. 46 § 2(a). It was foreseeable that arbitration under the Agreement sometimes would involve challenges to the credibility of testimony from Goodell or other League employees. When parties to a contract elect to resolve disputes through arbitration, a grievant “can ask no more impartiality than inheres in the method they have chosen.” Winfrey v. Simmons Food, Inc., 495 F.3d 549, 551 (8th Cir. 2007) (quotation omitted). The Association’s challenge to Henderson’s service as arbitrator is thus foreclosed by Williams, and a remand is unnecessary. Accord Nat’l Football League Mgmt. Council v. Nat’l Football Players Ass’n, 820 F.3d 527, 548 (2d Cir. 2016).
This decision, like the Deflategate decision, relies on Federal Arbitration Act precedents, not just Labor Management Reporting and Disclosure Act arbitration precedents. It remains unclear whether this doctrine of party autonomy overriding “evident partiality” applies to disputes beyond labor-management issues under a collective bargaining agreement.
Keywords: alternative dispute resolution, adr, litigation, party autonomy, evident partiality, waiver, collective bargaining agreement