National Football League Players Association v. National Football League et al

Filing 39

ORDER granting 2 Motion to Vacate Arbitration Award (Written Opinion). Signed by Senior Judge David S. Doty on 2/26/2015. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 14-4990(DSD/JSM)
National Football League
Players Association, on its
own behalf and on behalf of
Adrian Peterson,
Petitioner,
ORDER

v.
National Football League and
National Football League
Management Council,
Respondents.

Jeffrey L. Kessler, Esq., David L. Greenspan, Esq. and
Winston and Strawn LLP, 200 Park Avenue, Suite 45118, New
York, NY 10166 and Barbara P. Berens, Esq. and Berens &
Miller, PA, 80 South Eighth Street, Suite 3720,
Minneapolis, MN 55402, counsel for petitioner.
Daniel L. Nash, Esq., Marla S. Axelrod, Esq. and Aikin
Gump, 1333 New Hampshire Avenue N.W., Washington, D.C.
20036 and Joseph G. Schmitt, Esq. and Peter D. Gray, Esq.
and Nilan, Johnson, Lewis PA, 120 South Sixth Street,
Suite
400,
Minneapolis,
MN
55402,
counsel
for
respondents.

This matter is before the court upon the petition to vacate
arbitration award by petitioner National Football League Players
Association (NFLPA), on its own behalf and on behalf of Adrian
Peterson.

Respondents are the National Football League and the

National Football League Management Council (collectively, NFL).
Based on a review of the file, record, and proceedings herein, and
for the following reasons, the court grants the petition.

BACKGROUND
This arbitration dispute arises out of the discipline imposed
by NFL Commissioner Roger Goodell on Minnesota Vikings running back
Adrian Peterson following Peterson’s corporal punishment of his son
in May 2014.
I.

The Parties’ Relationship
The

parties’

relationship

is

governed

by

the

Bargaining Agreement signed on August 4, 2011 (CBA).

Collective

NFLPA Ex. 1.

Relevant here, Article 46 of the CBA authorizes the Commissioner to
impose discipline on NFL players for “conduct detrimental to the
integrity of, or public confidence in, the game.”
Article

46

allows

disciplinary

decision

Commissioner.

a

player
to

a

to

appeal

hearing

See id. § 2(a).

the

officer

See id. § 1(a).
Commissioner’s

appointed

by

the

The Standard NFL Player Contract,

which is part of the CBA, further provides that on a finding of
conduct detrimental to the league, the Commissioner “will have the
right, but only after giving Player the opportunity for a hearing
... to fine Player in a reasonable amount; to suspend Player for a
period certain or indefinitely; and/or to terminate this contract.”
Id. Ex. 1A ¶ 15.
is

revised

The NFL’s Personal Conduct Policy (Policy), which

periodically,

sets

forth

constitutes

conduct

detrimental to the league and what discipline may follow.

See id.

Ex. 2.

2

what

The Policy in place during the underlying incident provided
that the NFL may impose discipline when the player has committed a
criminal

offense,

including

domestic

violence.

Id.

at

1.

Consistent with the Player Contract, the Policy also stated that
discipline may include fines, suspension, or banishment from the
league.

Id. at 2.

The Policy did not set forth the presumed

length of suspension for particular types of conduct, but noted
that the disciplinary response “will be based on the nature of the
incident, the actual or threatened risk to the participant and
others, any prior or additional misconduct (whether or not criminal
charges were filed), and other relevant factors.”

Id.

On August 28, 2014, in response to a well-publicized domestic
violence incident involving Baltimore Ravens running back Ray Rice,
the Commissioner issued an enhanced Personal Conduct Policy (New
Policy), increasing the sanctions for domestic violence and sexual
assault incidents.1

Id. Ex. 3.

Specifically, the New Policy

announced a “suspension without pay of six games for a first
offense, with consideration given to mitigating factors, as well as
a longer suspension when circumstances warrant.”

1

Id. at 3; see

Rice initially received a two-game suspension. The public
and media excoriated the Commissioner for failing to impose harsher
penalties on domestic violence offenders. See id. Exs. 37-48. The
New Policy, although more severe, did little to quell the public
outcry. See id. Exs. 49-62. Peterson’s indictment, discussed in
more detail below, came during the firestorm over Rice’s discipline
and the NFL’s perceived lenity with respect to domestic violence
offenders.
3

also id. Ex. 4.

It is undisputed that under the previous Policy,

first-time domestic violence offenders faced a likely maximum
suspension of two games.

See id. Ex. 35, at 181:5-24, 368:5-13;

Ex. 119, at 5 & n.4.
II.

Peterson’s Disciplinary Process
On September 11, 2014, a Montgomery County, Texas grand jury

indicted Peterson on a charge of felony reckless or negligent
injury of a child, as a result of the May 2014 incident involving
his son. After learning of the indictment, the Vikings deactivated
Peterson for the next game on September 14.

On September 18, the

NFLPA, on behalf of Peterson, and the NFL agreed in writing to
place Peterson on the Commissioner’s Exempt List with full pay
“until the criminal charges ... are adjudicated.”
Ex. B, at 1 (Letter Agreement).

Schmitt Decl.

The Letter Agreement further

stated that “[n]o discipline will be processed or imposed against
[Peterson], by the Club or the League, until after the pending
criminal charges are adjudicated.”

Id.

On November 4, Peterson pleaded nolo contendere to a reduced
misdemeanor charge of reckless assault.

NFLPA Ex. 30, at 2.

The

court issued a deferred adjudication order and placed Peterson on
community supervision for two years, at the conclusion of which the
charge may be removed from his record.

See id. Two days later, the

NFL acknowledged Peterson’s plea and advised him that the “matter
warrants review for potential disciplinary action under the Personal

4

Conduct Policy.”

Id. Ex. 5, at 1.

The NFL requested that Peterson

provide certain information regarding the criminal case and notified
him that he would have the opportunity to participate in a hearing
before the Commissioner imposed any discipline.

Id.

The NFL also

informed Peterson that he would remain on the Exempt List in the
interim.

Id. at 2.

On November 11, the NFL notified Peterson that he was expected
to attend a hearing on November 14 at the NFL’s offices in New York.
Id. Ex. 6.

The NFLPA responded on Peterson’s behalf with several

questions regarding the agenda and process for the proposed hearing.
See id. Ex. 7.

The NFL answered that Peterson would be permitted

to present “any information or evidence in support of his position”
and that the NFL would determine the appropriate discipline, if any,
under “the policies.”

Id. Ex. 10.

The NFL further explained that

it had invited “some outside people” to the hearing to “broaden [the
NFL’s] perspective” but did not indicate what role those individuals
would play.

Id.

Among those invited were Lisa Friel, a former

prosecutor, and Dr. April Kuchuk, a consultant on child welfare and
family violence.

Id.

The NFLPA then asked to reschedule the hearing to early the
following week to accommodate Peterson’s and his representatives’
schedules.

Id. Ex. 12, at 1, 3.

The NFLPA also complained that

holding a formal hearing violated the parties’ “long-standing custom
and practice regarding such meetings as a part of the process for

5

possible discipline pursuant to Article 46 [of the CBA].”

Id. at

2. Concerned with the proposal to include outside people, the NFLPA
requested further clarification about the role of each attendee.
Id.

The NFLPA nevertheless agreed to have Peterson, his contract

advisor, and NFLPA attorneys attend a meeting with the Commissioner
and NFL lawyers.

Id.

On November 17, not having received a response from the NFL,
the NFLPA inquired as to the status of the proceedings and offered
November 19 as a possible meeting date.

Id. Ex. 15.

The NFL

responded that Peterson “elected not to attend or participate as
requested, leaving the league to move forward with the consideration
of discipline based on the information available.” Id. Ex. 16. The
next day, the NFLPA notified the NFL that Peterson would submit his
position to the Commissioner in writing.

Id. Ex. 17.

The NFL did

not give him the chance to do so.
In a letter dated November 18, the Commissioner informed
Peterson that his May 2014 conduct was detrimental to the league and
noted, without specificity, that Peterson had engaged in similar
conduct in the past and appeared inclined to repeat the behavior in
the future.

Id. Ex. 18, at 2.

The Commissioner then applied the

New Policy to Peterson:
The modifications of the Personal Conduct Policy that
were announced on August 28 establish a baseline
discipline of a suspension without pay for six games for
certain offenses, including a first offense of assault,
battery, or domestic violence. That announcement also
identified several aggravating circumstances that would
6

warrant higher levels of discipline.
circumstances are present here[.]
Id.

A number of those

The Commissioner suspended Peterson without pay for “at least

the remainder of the 2014 season,” fined him six weeks’ pay,
inclusive of any amounts forfeited during the suspension, and
ordered him to participate in a counseling and treatment program,
the results of which would dictate when and if Peterson would be
permitted to return to the league.

Id. at 3.

The Commissioner specifically directed Peterson to participate
in counseling supervised by NFL designee Dr. Kuchuk, rather than
Peterson’s

chosen

therapist.

Id.

at

2-3.

The

Commissioner

indicated that he would review Peterson’s progress periodically,
beginning on April 15, 2015.

Id. at 4.

He warned that a “failure

to cooperate and follow your plan will result in a lengthier
suspension without pay.”

Id.

Finally, the Commissioner advised

Peterson that he would remain on the Exempt List with pay pending
any appeal.

Id.

At that point, Peterson had been on the Exempt

List for nine weeks, missing eight games.
III.

Id. at 1.

The Arbitration
The NFLPA immediately appealed the discipline, triggering the

procedure set forth in Article 46 of the CBA.

See id. Ex. 20.

The

NFLPA specifically challenged the application of the New Policy to
conduct

occurring

before

its

implementation,

as

well

as

the

Commissioner’s “new and obfuscated disciplinary process,” which
prevented

Peterson

from

participating
7

in

pre-disciplinary

discussions in violation of his “industrial due process rights.”
Id. at 4.

The NFLPA requested that the Commissioner recuse himself

from hearing the appeal and that he appoint a neutral arbitrator.
Id. at 5. The NFL responded by setting the arbitration for December
2 and appointing Harold Henderson as the Commissioner’s designated
hearing officer.

Id. Ex. 21.

The NFLPA asked Henderson to recuse given his “inextricable
ties to the League Officer and Commissioner Goodell” and evident
partiality.2

Id. Ex. 22, at 1.

Henderson declined, finding no

evidence of his partiality and noting that Article 46 expressly
allows the “Commissioner or his designee” to serve as hearing
officers. Id. Ex. 23, at 2. The arbitration took place on December
2 and 4.

See id. Ex. 122; see also Ex. 24.

The NFLPA identified

the issues presented as follows: (1) whether the Commissioner
impermissibly applied the New Policy to Peterson; (2) whether
Peterson was deprived of a fair disciplinary process; (3) whether
the imposition of a psychiatric counseling component is permissible
under the CBA; and (4) whether the Exempt List can be used as a form
of discipline under the CBA.

See id. Ex. 20, at 4-5.

Henderson rejected each of the NFLPA’s arguments and upheld the
Commissioner’s discipline in its entirety.

2

As to the issue of

Henderson was an NFL executive for nearly two decades and
apparently continues on in a part-time capacity, earning $2.5
million in compensation from the NFL since 2009. See id. at 2-3.
8

retroactive application of the New Policy, Henderson concluded that
the Commissioner had “broad discretion” to impose discipline under
the New Policy.

Id. Ex. 126, at 4.

Henderson did not directly

address the NFLPA’s retroactivity argument, and instead simply
concluded

that

the

New

Policy

was

consistent

with

its

prior

iterations and that the discipline imposed “fits either or both, and
one need not pick one or the other to conclude it was entirely ‘fair
and consistent.’”

Id. at 5.

Henderson acknowledged that the

discipline imposed was greater than in previous cases under the old
Policy, but reasoned that the egregious facts justified harsher
punishment.

Id.

He also noted that Peterson did not require

advance warning of increased discipline because the record did not
support a finding that such knowledge would have changed his
behavior.

Id. at 5-6.

In rejecting the argument that Peterson was denied a fair predisciplinary process, Henderson determined that Peterson did not
have a right to be heard before the Commissioner imposed discipline,
despite such prior practice.

Id. at 6.

Henderson further declined

to find evidence of retaliation for Peterson’s failure to attend the
November 14 hearing.

Id. at 8.

Finally, Henderson “reject[ed] the

argument that placement in Commissioner Exempt status is discipline”
without explanation.

Id.

He did not address the counseling issue

other than to say that the Commissioner has the discretion to order
“counseling

or

other

treatment

9

deemed

appropriate

by

health

professionals.”

Id. at 5.

On December 15, 2014, the NFLPA filed

a petition to vacate the arbitration award under Section 301 of the
Labor Management Relations Act, 29 U.S.C. § 185 (LMRA) and Section
10 of the Federal Arbitration Act, 9 U.S.C. § 10 (FAA).

DISCUSSION
I.

Standard of Review
For purposes of this case, the standard of review under the

LMRA and the FAA is the same.

Alcan Packaging Co. v. Graphic

Commc’n Conference, Int’l Bhd. Of Teamsters & Local Union No. 77-P,
729 F.3d 839, 841 (8th Cir. 2013).

Courts give decisions by labor

arbitrators “substantial deference.”

Associated Elec. Coop., Inc.

v. Int’l Bhd. of Elec. Workers, Local No. 53, 751 F.3d 898, 901 (8th
Cir. 2014).

“The federal labor laws ‘reflect a decided preference

for private settlement of labor disputes.’”

Id. (quoting United

Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 37 (1987)).
Therefore, “as long as the arbitrator is even arguably construing
or applying the [CBA] and acting within the scope of his authority,
that a court is convinced he committed serious error does not
suffice to overturn his decision.”

Misco, 484 U.S. at 38.

Arbitration awards, however, are not inviolate, and the court
need not merely rubber stamp the arbitrator’s interpretations and
decisions. The court must vacate the award if it fails to “draw its

10

essence” from the agreement, such that the arbitrator imposed “his
own brand of industrial justice.”
901.

Associated Elec., 751 F.3d at

An arbitration award may also be vacated when the arbitrator

“exceed[ed] the authority given to him by the CBA or decide[d]
matters parties have not submitted to him.”

Doerfer Eng’g v. NLRB,

79 F.3d 101, 103 (8th Cir. 1996).
II.

Petition to Vacate
The NFLPA argues that vacatur is warranted because (1) the

award violates the essence of the CBA; (2) Henderson exceeded his
authority by deciding the matter based on the hypothetical question
of whether Peterson’s punishment was permissible under the old
Policy; (3) the award was fundamentally unfair given the retroactive
application of the New Policy and the procedural irregularities in
the pre-discipline process; and (4) Henderson was an evidently
partial arbitrator.
A.

Essence of the Agreement

Although the court may not vacate an award if the arbitrator
was “arguably construing or applying the CBA,” vacatur is proper
when the award “fails to draw its essence from the CBA or is
contrary to the plain language of the [CBA].”

Bureau of Engraving,

Inc. v. Graphic Commc’ns Int’l Union, Local 1B, 164 F.3d 427, 429
(8th Cir. 1999).

“The essence of the CBA is derived not only from

its express provisions, but also from the industrial common law.”
Id.

The industrial common law includes “past practices of the
11

industry and the shop,” i.e., the law of the shop, and “the parties’
negotiating history and other extrinsic evidence of intent.”

Id.;

see also United Steelworkers of Am. v. Warrior & Gulf Navigation
Co., 363 U.S. 574, 581-82 (1960) (“The labor arbitrator’s source of
law is not confined to the express provisions of the contract, as
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.”)

The law of the shop necessarily

includes prior arbitration awards.

See Warrior & Gulf, 363 U.S. at

581 (“The processing of disputes through the grievance machinery is
actually a vehicle by which meaning and content are given to the
collective bargaining agreement.”).
The NFLPA argues that the award fails to draw its essence from
the CBA because it ignores established law of the shop, namely, that
the New Policy may not be retroactively applied.

The NFL responds

that Henderson, after a “careful review” of the Policy and the New
Policy, correctly determined that

the Commissioner had “broad

discretion” under the CBA to impose the enhanced discipline set
forth in the New Policy.
Mem. at 19.

See NFLPA Ex. 126, at 4; Resp’t’s Opp’n

The court disagrees.

There is no dispute that the Commissioner imposed Peterson’s
discipline under the New Policy.

12

See NFLPA Ex. 18.

It is also

undisputed that in the Rice arbitration, the hearing officer3
unequivocally recognized that the New Policy cannot be applied
retroactively, notwithstanding the Commissioner’s broad discretion
in meting out punishment under the CBA.

See id. Ex. 119, at 16.4

Consistent with that recognition, the Commissioner has acknowledged
that he did not have the power to retroactively apply the New
Policy:

“The policy change was forward looking because the League

is ‘required to provide proper notice.’”

Id. at 7; id. Ex. 35, at

101:12-13,

two

99:21-100:15.

Yet,

just

weeks

later,

the

Commissioner retroactively applied the New Policy to Peterson.
The NFL urges the court to ignore Judge Jones’s decision, as
did Henderson, arguing that Rice is distinguishable with respect to
“critical facts” because it involved a double discipline issue. Am.
Nat’l Can Co. v. United Steelworkers of Am., 120 F.3d 886, 890 (8th
Cir. 1997). The court finds no valid basis to distinguish this case
from the Rice matter.
Although Henderson purported to rely on factual differences
between Rice and this case, he did not explain how those differences
would justify a different result. Nor did Henderson explain why the
well-recognized bar against retroactivity did not apply to Peterson.

3

Retired federal district court judge Barbara S. Jones
presided over the Rice arbitration.
4

This determination is consistent with prior NFL arbitration
decisions recognizing the importance of notice in advance of
discipline. See, e.g., id. Ex. 82, at 25-26; Ex. 87, at 27; Ex.
101, at 16; Ex. 36, at 6.
13

Even leaving the Rice decision aside, it is not seriously contested
that the Commissioner understood he was constrained to apply the New
Policy prospectively.

See NFLPA Ex. 119, at 7; id. Ex. 35, at

101:12-13, 99:21-100:15; see also United Transp. Union, Local Lodge
No. 31, 434 F2d 220, 222 (8th Cir. 1970) (recognizing that the law
of the shop includes the understanding of the parties).

Henderson

simply disregarded the law of the shop and in doing so failed to
meet his duty under the CBA.

As a result, the arbitration award

fails to draw its essence from the CBA and vacatur is warranted.
See Trailways Lines, Inc. v. Trailways, Inc. Joint Council, 807 F.2d
1416, 1423 (8th Cir. 1986) (finding that failure to consider the law
of the shop can be the sole basis to vacate an arbitration award).5
B.

Exceeded Authority

The NFLPA next argues that Henderson exceeded his authority by
adjudicating

the

hypothetical

question

of

whether

Peterson’s

discipline could be sustained under the previous Policy.

The NFL

responds that the NFLPA submitted that issue to Henderson.6
record belies the NFL’s argument.

The

The NFLPA submitted to Henderson

5

Having concluded that the arbitration improperly upheld the
Commissioner’s discipline under the New Policy, the court need not
consider the NFLPA’s other arguments with respect to the essence of
the agreement.
6

The NFL also incorrectly argues that exceeding the scope of
authority is not a proper ground for vacatur under the LMRA. See
N. States Power Co. v. Int’l Bhd. of Elec. Workers, 711 F.3d 900,
903 (8th Cir. 2013) (affirming the district court’s decision to
vacate the arbitrator’s award “for reaching beyond his authority
under the CBA”).
14

“the pure legal issue” of whether the New Policy could be applied
retroactively.
4.

NFLPA Ex. 122, 21:22-22:24; see also id. Ex. 20, at

Nothing in the record supports a finding that the NFLPA asked

Henderson to determine whether the discipline imposed was consistent
with the previous Policy. Moreover, Henderson’s conclusion that the
New Policy is consistent with the previous Policy is contradicted
by the Commissioner’s own statements in which he acknowledged that
the New Policy included “changes” to the Policy. See, e.g., id. Ex.
65, at 1 (“I made a mistake.

I’m not satisfied with the process we

went through, I’m not satisfied with the conclusions.

And that’s

why we came out last month and said: we’re going to make changes to
our policies.

We made changes to our discipline.”); see also id.

Ex. 35, at 99:21-100:15.
“When 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) (emphasis in original).

“[O]nce the parties have gone

beyond their promise to arbitrate and have actually submitted an
issue to an arbiter, we must look both to their contract and to the
submission
authority.”

of

the

issue

to

the

arbitrator

to

determine

his

John Morrell & Co. v. Local Union 304A of the United

Food & Commercial Workers, 913 F.2d 544, 561 (8th Cir. 1990)
(internal quotation and citation omitted).

Here, Henderson strayed

beyond the issues submitted by the NFLPA and in doing so exceeded

15

his authority.

As a result, vacatur is warranted on this basis as

well.
Because the court finds that the arbitration award must be
vacated on the grounds set forth above, it need not decide whether
Henderson was evidently partial or whether the award violates
fundamental fairness.

The court will remand the matter for further

proceedings before the arbitrator as permitted by the CBA. See U.S.
Postal Serv. v. Am. Postal Workers Union, AFL-CIO, 907 F. Supp. 2d
986, 995 (D. Minn. 2012) (holding that the appropriate remedy on
vacatur is to remand the case for further arbitration proceedings
consistent with the CBA).

CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.

The petition to vacate arbitration award [ECF No. 2] is

granted; and
2.

The

case

is

remanded

for

such

further

proceedings

consistent with this order as the CBA may permit.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

February 26, 2015
s/David S. Doty
David S. Doty, Judge
United States District Court

16