Richard M. Borchers, P.C.

11001 West 120th Avenue, Suite 400

Broomfield, CO  80031 


The Hon. Richard M. Borchers
Richard M. Borchers
"I enjoy the challenges of alternative dispute resolution, and look forward to the opportunity to assist you and your clients with your next arbitration or mediation."

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303-426-7365 to obtain available dates, or
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By Richard M. Borchers
President, Richard M. Borchers, P.C.
     T he so-called "Deflategate" scandal is drawing to a close.
The National  Football League (NFL)  was able to prevail on appeal to the Second Circuit.  National Football League v. National Football League Players Association, 
820 F.3d 527 (2nd Cir. 2016). Tom Brady, quarterback for the New England Patriots football team, is set to commence his four-game suspension. Brady has announced that he will not be filing a petition for certiorari  with the United States Supreme Court. The players union has standing and may file a petition. It is more likely that the players union will attempt to negotiate a change in the collective bargaining agreement (CBA), when the present agreement expires. The question then is whether "Deflategate" provides any lessons for lawyers.

     The Second Circuit reversed the decision of the U.S. District Court for the Southern District of New York. The appellate decision was 2-1, with Chief Judge Katzmann dissenting. A request for an  en banc review of the case was denied by the 2nd Circuit. That leaves as the sole remedy the filing of a petition for certiorari with the United States Supreme Court. Even if a petition is filed, there is little likelihood the court would grant the petition.

     The 2nd Circuit's opinion reflects the general federal court view of arbitrations, especially in the labor - management arena. The 2nd Circuit noted that this arbitration was controlled by provisions of the Labor Management Relations Act (LMRA).  29 U.S.C. ยง141 et seq. On occasion, courts have looked to the Federal Arbitration Act (FAA) for guidance in resolving issues that have arisen in labor arbitration cases. The majority opinion of the 2nd Circuit stresses that arbitrations arise as a result of negotiation between parties. In the "Deflategate" scandal, the CBA provided that the NFL Commissioner Roger Goodell would handle appeals filed by a player. This meant that Goodell would be reviewing the disciplinary action that he had already taken. The question raised in the district court was basically whether or not that procedure was fair. The 2nd Circuit held that it did not matter whether the process appeared fair. The court stated as to the process contained in the CBA, in part, as follows:

Here, that authority was especially broad. The Commissioner was authorized to impose discipline for, among other things, "conduct detrimental to the integrity of, or public confidence, in the game of professional football." In their collective bargaining agreement, the players and the League mutually decided many years ago that the Commissioner should investigate possible rule violations, should impose appropriate sanctions, and may preside at arbitrations challenging his discipline. Although the tripartite regime may appear somewhat unorthodox, it is the regime bargained for and agreed upon by the parties, which we can only presume they determined was mutually satisfactory.

Ibid. at p.532. It is presumed that the parties to a CBA negotiated a satisfactory agreement. The majority rejected the concept that an arbitration contract must be fundamentally fair. As long as the arbitrator acts within the scope of his or her authority, a court should not set aside the arbitration award.

      The union took issue  with several evidentiary decisions made by the Commissioner. The 2nd Circuit held that the rulings were within the power granted to the Commissioner. 

Had the parties wished to allow for more expansive discovery, they could have bargained for that right. They did not, and there is simply no fundamental unfairness in affording the parties precisely what they agreed on.

Ibid. at p.547. The majority emphasizes again and again that the parties to an arbitration agreement are bound by it. That is especially true with a CBA that was specially negotiated under the LMRA. There cannot be unfairness if a party was free to negotiate and did so.

     The 2nd Circuit's opinion in "Deflategate" reflects the conservative view that parties to an arbitration agreement are bound by it. The court rejected the argument the arbitration provisions must be "fundamentally fair." The arbitration provision will control what is fair. Be careful what your client agrees to, because there is no reason to believe that a court will rectify what appears on its face to be unfair.