Williams et al v. National Football League, The

Filing 60

ORDER granting in part and denying in part 42 Motion to Clarify; denying 42 Motion for Discovery; denying 42 Motion to Stay. The parties shall complete and submit an Administrative Record Review Scheduling Order no later than five days prior to the scheduling conference. By Magistrate Judge Michael J. Watanabe on 5/4/12. (cmacd )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.

12-cv-00650-CMA-MJW

GENOS “D.J.” WILLIAMS
Petitioner,
v.
NATIONAL FOOTBALL LEAGUE,
Respondent.

ORDER ON
MOTION FOR CLARIFICATION OF SCHEDULING ORDER, FOR THE RIGHT TO
TAKE DEPOSITIONS AND STAY MOTIONS FOR SUMMARY JUDGMENT PENDING
LIMITED DISCOVERY (Docket No. 42)

MICHAEL J. WATANABE
United States Magistrate Judge
This case is before this court pursuant to an Order Referring Case (Docket No. 7)
issued by Judge Christine M. Arguello on March 16, 2012.
Petitioner Genos “D.J.” Williams brought this matter to vacate arbitration awards
upholding petitioner’s suspension. Petitioner seeks an order permitting the deposition
of arbitrator Harold Henderson, who issued the arbitration award, and Jeffrey Pash,
general counsel for respondent National Football League. Petitioner argues the
depositions are necessary to further address petitioner’s claim that Mr. Henderson and
Mr. Pash engaged in ex parte communications which prejudiced petitioner.
Judicial review of an arbitration award “is among the narrowest known to the
law.” Champion Boxed Beef Co. v. Local No. 7 United Food & Commercial Workers
Int’l Union, 24 F.3d 86, 87 (10th Cir. 1994) (internal quotations omitted). “In consenting

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to arbitration, a party trades the procedures and opportunity for review of the courtroom
for the simplicity, informality, and expedition of arbitration.” Bowen v. Amoco Pipeline
Co., 254 F.3d 925, 932 (10th Cir. 2001) (citation and internal quotations omitted).
Accordingly, post-arbitration discovery is often prohibited. See, e.g., Amicorp Inc. v.
Gen. Steel Domestic Sales, LLC, No 07-cv-01105-LTB-BNB, 2007 WL 2890089, at *5
(D. Colo. Sept. 27, 2007), aff’d, 284 Fed. Appx. 527 (10th Cir. 2008); Midwest
Generation EME, LLC v. Continuum Chem. Corp., 786 F. Supp. 2d 939, 943 (N.D. Ill.
2010).
A party seeking vacatur must present “clear evidence of impropriety” to be
allowed post-award discovery into potential arbitrator bias. See Lucent Techs. Inc. v.
Tatung Co., 379 F.3d 24, 32 (2d Cir. 2004). Generally, in order to vacate an arbitration
award due to ex parte communications, a party must show that those communications
prejudiced the party. See Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261,
1271 (10th Cir. 1999). Accordingly, petitioner is entitled to the discovery sought if he
has presented clear evidence of prejudicial ex parte communications.
Respondent does not dispute that ex parte communications took place between
Mr. Henderson and Mr. Pash following the arbitration hearing. In an email written by
Mr. Henderson on January 19, 2012, Mr. Henderson stated that he “was asked [by Mr.
Pash] to delay a decision on this matter to afford an opportunity for the parties to the
governing collective bargaining agreement, the NFL and the NFLPA, to explore an
agreed resolution of this dispute.” (Def’s Exh. 4, Docket No. 41). Petitioner argues he
was prejudiced by this delay because the threat of suspension hung over his head for
months instead of days. Further, petitioner argues the delay prevented him from

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beginning his suspension during the 2011 season, and since petitioner’s salary is higher
in 2012, the delay thus cost him a larger cumulative amount of salary.
The court finds that petitioner has failed to present clear evidence that the ex
parte communication between Mr. Henderson and Mr. Pash prejudiced him. The only
evidence presented by petitioner, and the only prejudice claimed by petitioner, relate to
the delay in Mr. Henderson’s decision; petitioner has presented no evidence that Mr.
Pash somehow influenced Mr. Henderson’s ultimate decision. In other words, the ex
parte communication involved an issue which is collateral to the arbitration award.
Accordingly, petitioner has failed to demonstrate that the ex parte communication
prejudiced him with regard to the arbitration award. Petitioner cannot request discovery
on the basis of a collateral issue in order to seek evidence of actual arbitrator bias.
Allowing petitioner to do so would be inconsistent with the objectives of arbitration and
the limited nature of arbitration reviews.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that petitioner’s Motion for Clarification of Scheduling Order, for the
Right to Take Depositions and Stay Motions for Summary Judgment Pending Limited
Discovery (Docket No. 42) is GRANTED IN PART AND DENIED IN PART. The Motion
is GRANTED as to Clarification of the Scheduling Order as outlined in detail below. The
remainder of the Motion is DENIED as stated in detail below. It is further
ORDERED that petitioner’s request to depose Mr. Henderson and Mr. Pash is
DENIED. It is further
ORDERED that petitioner’s request to stay any motions for summary judgment is

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DENIED. It is further
ORDERED that the parties are to complete an “Administrative Record Review
Scheduling Order” (form available on the court’s website), adapting it where necessary
for an arbitration review, and submit it no later than five days prior to the scheduling
conference.

Date: May 4, 2012
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge