NFL Players Association v. National Football League, et al

Filing

OPINION FILED - THE COURT: James B. Loken, Diana E. Murphy and Steven M. Colloton AUTHORING JUDGE:Steven M. Colloton (PUBLISHED) [4433986] [15-1438]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1438
___________________________
National Football League Players Association, on its own and on behalf of Adrian Peterson,
lllllllllllllllllllll Plaintiff - Appellee,
v.
National Football League; National Football League Management Council,
lllllllllllllllllllll Defendants - Appellants.
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: October 19, 2015
Filed: August 4, 2016
____________
Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
____________
COLLOTON, Circuit Judge.
During the 2014 football season, National Football League Commissioner
Roger Goodell suspended Minnesota Vikings running back Adrian Peterson
indefinitely for “conduct detrimental to . . . the game of professional football,” and
fined Peterson a sum equivalent to six games’ pay. Peterson’s suspension stemmed
from his plea of nolo contendere in November 2014 to a charge of misdemeanor

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reckless assault on one of his children. Peterson appealed his discipline to an
arbitrator, who affirmed the suspension and fine.
Peterson petitioned the district court to vacate the arbitration decision. The
court granted the petition, and the League appeals. After the district court ruled, the
Commissioner reinstated Peterson. He has resumed playing professional football, and
this appeal does not involve his eligibility to play. The remaining dispute concerns
whether the League may collect the fine imposed by the Commissioner and upheld
by the arbitrator. We conclude that the parties bargained to be bound by the decision
of the arbitrator, and the arbitrator acted within his authority, so we reverse the
district court’s judgment vacating the arbitration decision.
I.
The NFL Players Association is the exclusive collective bargaining
representative for present and future players in the National Football League.
Collective Bargaining Agreement pmbl. (2011) [hereinafter “CBA”]. The
Association is party to a comprehensive collective bargaining agreement with the
NFL Management Council, the bargaining representative of the League’s thirty-two
separately owned teams. Id. Relevant to this appeal, the Agreement prescribes a
comprehensive system governing discipline of players imposed by teams or the
League and provides for the arbitration of disciplinary appeals by players. Id. arts.
42-43, 46.
The Commissioner is the chief executive officer of the NFL. Article 46 of the
Agreement authorizes the Commissioner to impose discipline for “conduct
detrimental to the integrity of, or public confidence in, the game of professional
football.” Id. art. 46, § 1(a). The standard NFL player contract further acknowledges
that the Commissioner has the power “to fine Player in a reasonable amount; to
suspend Player for a period certain or indefinitely; and/or to terminate this contract.”
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Id. app. A ¶ 15 (emphasis added). The Agreement does not define “conduct
detrimental” or prescribe maximum or presumptive punishments for such conduct.
The Agreement establishes an exclusive arbitration process for resolving
disputes over player discipline. Any player sanctioned under Article 46 for conduct
detrimental to the game has the right to appeal to the Commissioner. Id. art. 46,
§§ 1(a), 2(a). The Commissioner may hear the appeal himself, or he may designate
one or more persons to serve as hearing officers. Id. § 2(a).
Pursuant to Article 46, the Commissioner has promulgated a Personal Conduct
Policy that applies to all players. The Policy specifies behavior that may be
considered “conduct detrimental,” explains the types of penalties violators may
receive, and describes the procedures for imposing and appealing Commissioner
discipline. Players are advised that “[d]iscipline may take the form of fines,
suspension, or banishment from the League,” and that violators might also be
required to undergo clinical evaluation or mental health treatment.
The Personal Conduct Policy effective June 1, 2013, listed various forms of
off-the-field conduct, including domestic violence, that could subject a player to
discipline for conduct detrimental. The Policy does not establish maximum or
presumptive punishments; rather, it provides that discipline will depend on “the
nature of the incident, the actual or threatened risk to the participant and others, any
prior or additional misconduct . . . , and other relevant factors.” An identical policy
was reissued on June 1, 2014.
On August 28, 2014, Commissioner Goodell sent a letter to all NFL owners to
“communicate our position and strengthen our policies on domestic violence and
sexual assault.” An attached memorandum to all NFL personnel explained that
violations of the Personal Conduct Policy involving domestic violence would be
subject to “enhanced discipline.” These communications followed criticism of the
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League’s handling of a highly publicized incident of domestic violence involving
Baltimore Ravens running back Ray Rice. In July 2014, the Commissioner
suspended Rice without pay for the first two games of the 2014 season and fined Rice
an additional week’s salary after Rice was charged with assaulting his then-fiancée.
The NFL and Goodell were sharply criticized in many quarters for treating Rice too
leniently.
The August 2014 communications outlined measures to “reinforce and
enhance” the League’s approach to domestic violence. Specifically, the
memorandum announced that a first domestic violence offense would be subject to
a suspension of six weeks without pay, and that more severe discipline would be
imposed if aggravating circumstances were present. Goodell’s letter to the owners
said that the enhanced discipline was “consistent with [the League’s] Personal
Conduct Policy.”
Adrian Peterson entered the NFL in 2007 and has spent his entire career with
the Minnesota Vikings. On September 11, 2014—two weeks after Goodell issued the
August 2014 communications—a Texas grand jury indicted Peterson for felony injury
to a child. The indictment alleged that in May 2014, Peterson hit his four-year-old
son with a tree branch as a form of corporal punishment. The punishment reportedly
inflicted “cuts and bruises to the child’s back, buttocks, ankles, legs, and scrotum,
along with defensive wounds to the child’s hands.” App. 704. Peterson was quoted
as telling investigators that he would “never eliminate whooping my kids . . . because
I know how being spanked has helped me in my life.” App. 705. After the charge
was announced, Peterson agreed to take a paid leave from the team pending
adjudication of his criminal case.
On November 4, 2014, Peterson pleaded nolo contendere to a reduced charge
of reckless assault, a class A misdemeanor. Two weeks later, Goodell suspended
Peterson indefinitely (for a minimum of the six games remaining in the 2014 season),
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fined him six-weeks’ salary, and required him to meet with a League-appointed
psychiatrist. Goodell relied on the “baseline discipline” of a six-game suspension that
was announced in the August 2014 memorandum. Goodell also identified several
aggravating circumstances that merited the lengthy suspension: the age and
vulnerability of the child, the emotional and psychological trauma inflicted on a
young child, and Peterson’s lack of remorse and suggestion that he would not refrain
from engaging in similar conduct in the future. Goodell told Peterson that he would
periodically review Peterson’s progress towards reinstatement, with the first review
to occur in April 2015.
The Players Association appealed on Peterson’s behalf under the procedures
of the Collective Bargaining Agreement. The Commissioner designated Harold
Henderson to hear Peterson’s appeal. 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 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.
The Players Association’s primary argument before Arbitrator Henderson was
that custom and practice under the Personal Conduct Policy in effect at the time of
Peterson’s misconduct limited the Commissioner’s disciplinary authority to a
maximum two-game suspension for a first-time domestic violence offense. The
Association argued that Goodell was required to apply the policies in force on the
date of the misconduct, and asked the arbitrator to reduce Peterson’s punishment to
a two-game suspension and a fine equivalent to two-weeks’ salary. The Association
also challenged the process by which Peterson’s discipline was determined and the
conditions placed on his reinstatement, accusing the League of “making up the
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process and punishment as it goes.” The Personal Conduct Policy issued June 1,
2013, was in effect on the date of Peterson’s offense, and an identical policy was
reissued on June 1, 2014, so references to either version address the policy in place
at the time of the misconduct.
The arbitrator affirmed Peterson’s discipline, finding that it was “fair and
consistent.” He concluded that the August 2014 communications did not constitute
a change of the Personal Conduct Policy, but rather “reinforce[d] that policy with
initiatives to explain and enhance it.” He observed that the Personal Conduct Policy,
which had not been rescinded, authorized suspensions and provided that “[t]he
specifics of the disciplinary response will be based on the nature of the incident” and
other relevant factors. The arbitrator explained that the Commissioner has “broad
discretion” under Article 46 of the Agreement and the Personal Conduct Policy, and
concluded that the August 2014 pronouncements “simply reflect his current thinking
on domestic violence and other incidents involving physical force.”
The arbitrator quoted from a prior arbitration decision in 2010 concerning the
suspension of a Miami Dolphins player:
The Commissioner has considerable discretion in assessing discipline.
If he should determine that the current level of discipline imposed for
certain types of conduct has not been effective in deterring such
conduct, it is within his authority to increase discipline in such cases.
He is not forever bound to historical precedent.
Add. 21 (quoting App. 308). In the Dolphins Player case, the player argued that a
one-game suspension for domestic violence was inconsistent with prior cases in
which the League had imposed only fines for first-time domestic violence offenses.
The arbitrator there observed, however, that “domestic violence is an area where
discipline has been increased, and a suspension for a first offense is now the norm
rather than the exception. [The Commissioner] should not be handcuffed by prior
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cases.” App. 308. In Peterson’s case, the arbitrator reasoned that just as the
Commissioner was permitted to begin suspending, rather than fining, players for firsttime offenses in 2010, he had “broad discretion” to increase the magnitude of
suspensions and fines in 2014 if he concluded that past sanctions had been an
insufficient deterrent.
The arbitrator also rejected the Players Association’s contention that the
Commissioner’s discipline of Peterson was inconsistent with an arbitrator’s decision
in the Ray Rice case. Although the Commissioner initially suspended Rice for two
games, he later changed the punishment to an indefinite suspension after a website
published video footage of Rice’s assault. An arbitrator vacated the indefinite
suspension, finding that the second suspension was an arbitrary repunishment for
misconduct that already had been punished. The Rice arbitrator opined, however, that
“[i]f this were a matter where the first discipline imposed was an indefinite
suspension, an arbitrator would be hard pressed to find that the Commissioner had
abused his discretion.” App. 60-61 (emphasis added). Arbitrator Henderson thus
concluded that the Commissioner’s indefinite suspension of Peterson was not
inconsistent with the reasoning in Rice.
The arbitrator then stated that it was unnecessary to find whether the June 2014
policy and the August 2014 communications were “a single policy or two, or which
one was applied, because the result is the same in either instance.” He explained that
the Commissioner’s discipline of Peterson fit both the Personal Conduct Policy and
the August 2014 communications. The arbitrator acknowledged that Peterson’s
discipline was more severe than in most prior domestic violence cases, but found that
the “severe beating of a four year old child” was “arguably one of the most egregious
cases of domestic violence in this Commissioner’s tenure.” He said that “[t]here is
no comparing this brutal incident to the typical violence against another adult.”

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The arbitrator rejected the Players Association’s argument that Peterson lacked
fair notice of the potential punishment. He found no evidence that Peterson knew
what level of discipline had been imposed in prior domestic violence cases or that he
relied in any way on an understanding about potential disciplinary measures. The
arbitrator distinguished a case involving a “fine for missing the last few minutes of
a Thursday practice” and other cases cited by the Association, finding no reason to
believe that “Peterson might not have inflicted those injuries on his young son if he
had known he could be suspended six weeks rather than two.” The arbitrator saw no
lack of basic fairness in the Commissioner’s approach. Accordingly, the arbitrator
denied the grievance and affirmed the Commissioner’s discipline of Peterson.
The Players Association petitioned the district court to vacate the arbitration
award. The Association argued that the case involved “the rare Arbitration Award
that must be set aside” and sought to vacate the award on four grounds, alleging: (1)
the Commissioner retroactively punished Peterson, in violation of the Collective
Bargaining Agreement; (2) the arbitrator exceeded his authority by hypothesizing
whether the Commissioner could have disciplined Peterson in the same manner prior
to the August 2014 memorandum; (3) the arbitrator was evidently partial; and (4) the
award violated the principle of fundamental fairness.
The district court accepted the Association’s first two arguments and granted
the petition. First, the court ruled that the Commissioner retroactively applied a new
disciplinary standard to Peterson, in violation of the Collective Bargaining Agreement
as interpreted by past arbitration awards. The district court concluded that the August
2014 communications effected a “New Policy” that “cannot be applied retroactively,
notwithstanding the Commissioner’s broad discretion in meting out punishment under
the CBA.” The district court found “no valid basis” for the arbitrator’s distinction of
the award in Rice and faulted the arbitrator for failing to “explain why the wellrecognized bar against retroactivity did not apply to Peterson.” The district court also
ruled that the arbitrator “exceeded his authority by adjudicating the hypothetical
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question of whether Peterson’s discipline could be sustained under the previous
Policy.” The court concluded that the arbitrator’s authority was limited to deciding
the question presented by the Players Association—namely, “‘the pure legal issue’
of whether the New Policy could be applied retroactively.”
The League appeals the district court’s order. After the district court ruled, the
Commissioner reinstated Peterson to play football, and this appeal concerns only the
monetary sanction imposed by the Commissioner and upheld by the arbitrator. We
review the district court’s decision de novo. Alcan Packaging Co. v. Graphic
Commc’n Conference, 729 F.3d 839, 841 (8th Cir. 2013).
II.
In an arbitration case like this one, the role of the courts is very limited. Major
League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001) (per curiam).
This case arises under the Labor Management Relations Act of 1947, in which
Congress evinced a preference “for private settlement of labor disputes without the
intervention of government.” United Paperworkers Int’l Union v. Misco, Inc., 484
U.S. 29, 37 (1987). We thus do not apply our own view of what would be appropriate
player discipline, and we do not review whether the arbitrator “correctly” construed
the Collective Bargaining Agreement when he reviewed the Commissioner’s
decision. “It is the arbitrator’s construction which was bargained for; and so far as
the arbitrator’s decision concerns construction of the contract, the courts have no
business overruling him because their interpretation of the contract is different from
his.” United Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593, 599 (1960).
So long as the arbitrator “is even arguably construing or applying the contract and
acting within the scope of his authority,” the arbitral decision must stand. Misco, 484
U.S. at 38. Vacatur of an arbitration award is appropriate only when the decision
does not “draw[] its essence from the collective bargaining agreement,” and the

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arbitrator instead has “dispense[d] his own brand of industrial justice.” Enter. Wheel,
363 U.S. at 597.
The gravamen of the Players Association’s petition is that the arbitrator ignored
“law of the shop” that forbids the retroactive application of a new disciplinary policy
to Peterson. The Association maintains that industrial common law developed under
the Personal Conduct Policy before Peterson’s misconduct constrained the League to
impose no more than a two-game suspension for a first-time domestic violence
infraction. The Association argues that the Commissioner relied on a “new policy”
set forth in the August 2014 communications to impose a more severe penalty on
Peterson, and that the arbitrator ignored the law of the shop when he upheld the
discipline. The district court, relying primarily on the Rice arbitration, ruled that the
arbitrator “simply disregarded the law of the shop.”
To be sure, “the industrial common law—the practices of the industry and the
shop—is equally a part of the collective bargaining agreement although not expressed
in it.” United Steel Workers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 581-82
(1960). We have said, therefore, that “[t]he essence of the CBA is derived not only
from its express provisions, but also from the industrial common law.” Bureau of
Engraving, Inc. v. Graphic Commc’ns Int’l Union, 164 F.3d 427, 429 (8th Cir. 1999).
At the same time, however, “an arbitrator’s error in failing to give precedential or
preclusive effect to a previous arbitration award is not alone sufficient to vacate an
arbitration award.” SBC Advanced Sols., Inc. v. Commc’ns Workers, Dist. 6, 794 F.3d
1020, 1030 (8th Cir. 2015); see Am. Nat’l Can Co. v. United Steelworkers, 120 F.3d
886, 892-93 (8th Cir. 1997). An arbitrator acts within his authority as long as he is
arguably construing or applying the contract, even if a court disagrees with the
arbitrator’s construction or application. Misco, 484 U.S. at 38. The same holds true
for the law of the shop: as long as the arbitrator is arguably construing or applying
arbitral precedents, a court’s disagreement with the arbitrator’s application of

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precedent is not sufficient grounds to vacate an arbitration decision. See Am. Nat’l
Can, 120 F.3d at 892-93.
The district court concluded that the arbitrator ignored the law of the shop set
forth in the Rice decision—namely, that the “new policy” arising from the August
2014 communications cannot be applied retroactively. But the arbitrator addressed
Rice head-on. He explained that Rice involved second discipline imposed on a player
for conduct that was already subject to a suspension and fine, whereas Peterson’s
sanction was the first discipline imposed. The arbitrator also quoted language from
the Rice decision that plainly supports upholding the Commissioner’s decision on
Peterson: “If this were a matter where the first discipline imposed was an indefinite
suspension, an arbitrator would be hard pressed to find that the Commissioner had
abused his discretion.” App. 60-61.
The district court disagreed with the arbitrator’s decision and found “no valid
basis to distinguish this case from the Rice matter.” In resolving a motion to vacate
an arbitration award, however, the question for the courts is not whether the
arbitrator’s distinction is persuasive enough to withstand ordinary judicial review.
An erroneous interpretation of a contract, including the law of the shop, is not a
sufficient basis for disregarding the conclusion of the decisionmaker chosen by the
parties. Misco, 484 U.S. at 38; Alcan Packaging, 729 F.3d at 843. The dispositive
question is whether the arbitrator was at least arguably construing or applying the
contract, including the law of the shop. The arbitrator here undoubtedly construed
the Rice decision in reaching his decision. Disagreement with his conclusion is not
a valid ground on which to vacate the decision.
Aside from the Rice decision, the Players Association contends that the
arbitrator ignored other arbitral precedents that establish a prohibition on retroactive
punishment. The arbitrator, however, disagreed with the Association’s premise that
the Commissioner applied a “new” policy that called for discipline that was
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unavailable under the “old” policy. He concluded instead that the August 2014
communications “do not constitute a change” of the preexisting Personal Conduct
Policy, because the communications did not effect a change in the Commissioner’s
disciplinary power.
The arbitrator relied on the Collective Bargaining Agreement and the law of
the shop to reach this conclusion. The Agreement gives the Commissioner discretion
to impose fines and suspensions for conduct detrimental to the game. The Personal
Conduct Policy allows for fines and suspensions based on the nature of the incident
and other relevant factors; it does not establish maximum punishments. Citing the
2010 Dolphins Player decision, the arbitrator reasoned that the Commissioner “is not
forever bound to historical precedent,” and that “[i]f he should determine that the
current level of discipline imposed for certain types of conduct has not been effective
in deterring such conduct, it is within his authority to increase discipline in such
cases.” As applied to Peterson’s case, therefore, the arbitrator thought the terms of
the Agreement, the law of the shop, and the Personal Conduct Policy gave the
Commissioner discretion to impose a six-game suspension and fine if he concluded
that shorter suspensions in prior cases had been inadequate. The arbitrator’s decision
on this point was grounded in a construction and application of the terms of the
Agreement and a specific arbitral precedent. It is therefore not subject to secondguessing by the courts.
The Players Association asserts that the arbitrator’s conclusion is at odds with
the Commissioner’s own words. In a letter informing Peterson of his discipline,
Goodell referred to “[t]he modifications to the Personal Conduct Policy that were
announced on August 28.” The Association also points to a press conference where
Goodell said the League “made changes to our discipline” in August 2014. The
Association argues that these statements “foreclose any claim that the Policies are
really the same.”

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Other evidence, however, supports the arbitrator’s conclusion that the August
communications “reinforce[d]” the Personal Conduct Policy without changing it, by
providing “initiatives to explain and enhance it.” Article 46 and the Personal
Conduct Policy by their terms place no limit on the Commissioner’s authority to
suspend players. In his August 2014 letter to NFL owners, Goodell described the
attached memorandum and the six-game suspension for first-time domestic violence
offenses as “consistent with our Personal Conduct Policy.” App. 29 (emphasis
added). And, as we have explained, the law of the shop included arbitral precedent
stating that the Commissioner is not forever bound to historical precedent if prior
discipline under the Personal Conduct Policy provided insufficient deterrence. In
other words, the League might change its discipline without changing its policy.
The parties have delegated to the arbitrator the job of reconciling conflicting
evidence. The arbitrator, having been presented with the Commissioner’s statements,
concluded that the August 2014 communications did not constitute a change of the
Personal Conduct Policy. He necessarily found, therefore, that Goodell’s statements
were not admissions to the contrary. Courts are not permitted to review the merits of
an arbitration decision even when a party claims that the decision rests on factual
errors. See Garvey, 532 U.S. at 509; Misco, 484 U.S. at 39.
The Players Association further argues that the arbitrator ignored four arbitral
decisions requiring advance notice to a player of the consequences of a violation.
The arbitrator mentioned these decisions and found them distinguishable. A close
reading of the prior decisions shows why. Three of the decisions involved team
discipline; they did not involve discipline imposed by the Commissioner pursuant to
Article 46. One of those decisions turned on the ambiguity of a team rule on the
timing of weigh-ins. App. 299. A second decision, where a player missed a weighin, rested on a team’s failure to comply with an article of the collective bargaining
agreement that required timely publication of a list of designated offenses. App. 24142. The third case was based largely on the arbitrator’s view that the player’s
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misconduct (sitting out part of a practice) did not rise to the level of “conduct
detrimental” to the team. App. 141-43. In the one decision that concerned Article 46
discipline, In re Bounty, the arbitrator relied on reasons other than inadequate notice
or impermissible retroactivity in setting aside discipline of four players: insufficient
evidence to distinguish a disciplined player from numerous others who were not
disciplined and “tremendous pressure” on the player from coaches to commit
misconduct, R. Doc. 1-6, at 14; inconsistent treatment between players and teams, id.
at 18-19; selective enforcement against one player to the exclusion of others similarly
situated, id. at 19-20; and insufficient evidence that a player’s alleged actions were
a factor causing misconduct on the playing field, id. at 22-23.
In any event, the question for a reviewing court is not whether the arbitrator’s
distinctions were correct, but whether the arbitrator was arguably construing and
applying the contract and the law of the shop. The arbitrator applied the law of the
shop: he relied on the Dolphins Player case concerning the Commissioner’s authority
to adjust disciplinary sanctions for domestic violence and concluded that precedents
favored by the Players Association were distinguishable. Dicta from Trailways Lines,
Inc. v. Trailways, Inc. Joint Council, 807 F.2d 1416, 1425 (8th Cir. 1986), concerning
an arbitrator who ignored arbitral precedent without explanation or simply because
he disagreed with it, are therefore inapposite. We see no basis for setting aside the
decision under a federal court’s limited scope of review.
The Players Association also argues that the arbitrator ignored an “admission”
by Commissioner Goodell, when testifying in the Rice case, that he could not apply
retroactively the “new” policy of imposing a six-game suspension for first-time
domestic violence offenses. It cites Goodell’s testimony that he called Rice shortly
after the August 2014 communications and told Rice that the communications did not
impact him, because “[h]e was given his discipline and we moved forward.”
According to the Association, this testimony shows that Goodell knew he could not
apply the “new” policy to any player whose misconduct predated the August 2014
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communications. The League responds that Goodell’s testimony is not “law of the
shop” and, in any event, the Commissioner meant only that he could not rediscipline
the already-disciplined Rice.
The arbitrator obviously did not agree with the Association that Goodell’s
testimony in Rice was an admission that he could not apply a six-game suspension to
Peterson. The meaning of Goodell’s statement is a question of fact. Given the
context of the Rice testimony, the arbitrator reasonably concluded that Goodell did
not testify to one belief on November 5, 2014, and then act to the contrary two weeks
later when he disciplined Peterson. In any case, a federal court may not set aside an
arbitrator’s decision based on “improvident, even silly, factfinding,” so the
Association’s reliance on Goodell’s testimony does not carry the day. Garvey, 532
U.S. at 509 (quoting Misco, 484 U.S. at 39).
III.
The Players Association argues alternatively that the arbitrator exceeded his
authority in two ways. First, it complains that the arbitrator adjudicated a
hypothetical discipline that the Commissioner never actually imposed. In its view,
the Commissioner acted pursuant to a “new” policy instituted by the August 2014
communications, but the arbitrator considered the propriety of the discipline as
though it had been imposed under the “old” June 2014 Personal Conduct Policy. The
Association contends, therefore, that the arbitrator effectively imposed his own
discipline under the “old” policy and thereby exceeded his authority.
We are not convinced that the arbitrator exceeded his authority in the manner
alleged. The arbitrator concluded that the August 2014 communications did not
change the June 2014 Personal Conduct Policy. He thus found it unnecessary to
decide whether the Commissioner applied an “old” policy, a “new” policy, or simply
a “single” policy that encompassed the writings from both June and August. In his
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view, the characterization did not matter, because there was no change in policy, and
“the result is the same” under any of the scenarios. It is apparent, therefore, that the
arbitrator reviewed the Commissioner’s decision, including his reliance on the August
2014 communications, and determined that the discipline imposed was permissible
under the Collective Bargaining Agreement.
Second, the Players Association contends that the arbitrator exceeded his
authority by altering the issues presented for decision. It argues that the arbitrator
was limited to adjudicating “‘the pure legal issue’ of whether the New Policy could
be applied retroactively.” The district court agreed, concluding that the arbitrator
“strayed beyond the issues submitted by the NLFPA.”
It is true that “[w]hen two parties submit an issue to arbitration, it confers
authority upon the arbitrator to decide that issue.” Local 238 Int’l Bhd. of Teamsters
v. Cargill, Inc., 66 F.3d 988, 990-91 (8th Cir. 1995) (per curiam) (first emphasis
added). But the parties here did not stipulate to the issues for arbitration. The scope
of the arbitrator’s authority, therefore, was itself a question delegated to the arbitrator.
W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber, Cork, Linoleum
& Plastic Workers, 461 U.S. 757, 765 (1983). “It is appropriate for the arbitrator to
decide just what the issue was that was submitted to it and argued by the parties.”
Int’l Chem. Workers Union v. Day & Zimmermann, Inc., 791 F.2d 366, 369 (5th Cir.
1986) (quotation omitted). And “an arbitrator’s interpretation of the scope of the
issue submitted to him is entitled to the same deference accorded his interpretation
of the collective bargaining agreement.” John Morrell & Co. v. Local Union 304A
of United Food & Commercial Workers, 913 F.2d 544, 560 (8th Cir. 1990) (quoting
Pack Concrete, Inc. v. Cunningham, 866 F.2d 283, 285 (9th Cir. 1989)).
The Players Association seeks to limit the issue for arbitration to a question
advanced in its opening statement before the arbitrator: “[W]hat we have is the pure
legal issue as to whether . . . it is fair and consistent for the League to retroactively
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apply the new policy to the May conduct.” App. 72. But it is not the exclusive
prerogative of the party seeking arbitration to define the issue for arbitration. See
John Morrell & Co., 913 F.2d at 560-61. The League framed the issue more broadly:
“[I]s the discipline appropriate?” App. 81. The League maintained that the
Commissioner has the authority to “impose levels of discipline that are higher than
what has been imposed in past cases depending on the circumstances before him,”
and that Peterson’s discipline was authorized by the Personal Conduct Policy. App.
89.
The arbitrator at least arguably acted within the scope of the issues submitted
to him, so his decision must be upheld. See W.R. Grace & Co., 461 U.S. at 764-65;
Int’l Bhd. of Elec. Workers, Local Union 824 v. Verizon Fla., LLC, 803 F.3d 1241,
1246-47 (11th Cir. 2015); cf. John Morrell & Co., 913 F.2d at 561 (vacating award
where arbitrator was not “even arguably” acting within the scope of the issue
submitted). The Players Association’s framing of the issue assumed a premise that
was contested by the League—namely, that the August 2014 communications
constituted a new policy authorizing discipline that was not allowed under the
preexisting policy. The arbitrator was not required to accept the Association’s
disputed premise; he properly asserted authority to resolve whether the premise was
correct. The Association itself, moreover, raised arguments that required
consideration of what discipline was permitted under the June 2014 Personal Conduct
Policy. The Association urged the arbitrator to reduce Peterson’s punishment to the
maximum allowable at the time of Peterson’s offense, and argued that “any
punishment must be assessed and imposed consistent with the Policy and practices
prior to August 28.” App. 41. These contentions required the arbitrator to examine
what level of discipline was authorized before the August 2014 communications. The
arbitrator thus did not exceed his authority by considering whether the August 2014
communications constituted a change to the Personal Conduct Policy and whether
Peterson’s discipline was consistent with the preexisting policy.

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IV.
The Players Association contends that two additional grounds, not addressed
by the district court, also support vacating the arbitration award. These arguments
involve purely legal issues in which additional evidence would not affect the
outcome, so we proceed to address them. See Universal Title Ins. Co. v. United
States, 942 F.2d 1311, 1314-15 (8th Cir. 1991). Neither alternative argument justifies
vacating the decision.
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).
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The Association’s remaining contention is that the arbitration was
“fundamentally unfair.” Fundamental fairness is a not a basis for vacatur identified
in the Labor Management Relations Act or the Federal Arbitration Act. The latter
statute informs our analysis in labor arbitration cases. See Granite Rock Co. v. Int’l
Bhd. of Teamsters, 561 U.S. 287, 298 n.6 (2010); Am. Postal Workers Union v. U.S.
Postal Serv., 754 F.3d 109, 112 n.4 (2d Cir. 2014). Even assuming for the sake of
analysis that there could be grounds for vacatur that are not specified in the statutes,
cf. Hall St. Assocs., LLC v. Mattel, Inc., 552 U.S. 576, 589 (2008), “our narrow
construction of extra-statutory review militates against” adopting a “fundamental
fairness” standard. Hoffman v. Cargill, Inc., 236 F.3d 458, 462 (8th Cir. 2001).
Hoffman did not “categorically reject the possibility of such a standard,” but said that
it could apply only “to arbitration schemes so deeply flawed as to preclude the
possibility of a fair outcome.” Id. at 462-63.
The Players Association does not identify any structural unfairness in the
Article 46 arbitration process for which it bargained. The Association’s fundamental
fairness argument is little more than a recapitulation of its retroactivity argument
against the merits of the arbitrator’s decision. We have never suggested that when
an award draws its essence from the collective bargaining agreement, a dissatisfied
party nonetheless may achieve vacatur of the arbitrator’s decision by showing that the
result is “fundamentally unfair.” The Association’s fairness argument does not fit
within the narrow window left open for consideration in Hoffman, and we therefore
conclude that the contention is without merit.
*

*

*

For the foregoing reasons, the judgment of the district court is reversed, and the
case is remanded with directions to dismiss the petition.
______________________________

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