Is There Something Arbitrary about the NFL’s Arbitration Process?

Written By Tessa J. Kajdi

Background

Philadelphia Eagles lineman, Lane Johnson (“Johnson”), served a four-game suspension in 2014 for violating the National Football League’s (“NFL”) Policy on Performance-Enhancing Substances. Subsequently, during the 2016 season, Johnson was issued a 10-game ban by the NFL, which was upheld by the appointed arbitrator. This 2016 arbitration proceeding is the source of conflict between Johnson, the NFL, and the NFL Players Association (“NFLPA”). On January 6, 2017, Johnson sued both the NFL and the NFLPA in the U.S. District Court for the Northern District of Ohio. Upon a motion of the NFLPA, Johnson’s suit was moved to the U.S. District Court for the Southern District of New York in July of 2017. He subsequently filed a memorandum of law in support of his motion to vacate the arbitration award with the Southern District of New York on October 26, 2017.

In his filings, Johnson alleges that the NFLPA “disregarded the policy’s express arbitrator provisions,” and that the NFL as well as the arbitrator failed to disclose a conflict of interest between the arbitrator’s law firm and the league. Johnson alleges this failure to follow policy was a breach of duties under the Collective Bargaining Agreement (“CBA”) of the NFL and a breach of fair representation by the NFLPA. As to the NFL’s alleged breach, Johnson claims that the league failed “to allow an independent toxicologist to review Johnson’s alleged positive ‘B’ sample,” and, among other things, failed “to provide all relevant documents related to the dispute to Johnson’s attorneys for review.”

However, according to the NFLPA, Johnson “waived his objections” to the arbitrator “when consenting to him as the arbitrator.” The union contends that Johnson’s complaint should be dismissed for two additional reasons. One, Johnson knew of the arbitrator’s affiliation with a law firm that previously worked with the NFL. Two, Johnson has not proven that the arbitrator himself “worked on any of the matters the firm has handled for the NFL.”

NFL’s Policy on Performance-Enhancing Substances

The collectively-bargained NFL Policy on Performance-Enhancing Substances sets out clear provisions for “procedures in response to positive tests or other evaluation[s].” Additionally, it discusses “discipline for violations of law and other documented evidence-based violations” and shows a step-by-step process for related disciplinary actions.

Conflicting Precedents

Recently, in the NFL, there have been two methods for players challenging arbitration rulings they find unfair. The first method, evidenced by players like Tom Brady and Ezekiel Elliott, is to sue the NFL to challenge the arbitration process with the NFLPA’s support. The second and rarer method, evidenced by Mike Pennel and Lane Johnson, is to sue both the NFL and NFLPA.

In May 2015, Tom Brady was given a four-game suspension by the NFL for violating league policy. Brady and the NFLPA appealed the suspension, and the NFL agreed to have Commissioner Roger Goodell oversee the appeal. After Goodell upheld the suspension, the NFLPA and Brady sued the NFL in federal court, alleging that Goodell’s oversight was biased and violated Brady’s right for a fair arbitration hearing. The district court overturned Brady’s suspension in September 2015. However, this ruling was overturned by the Court of Appeals, which stated that Goodell was acting within his power under the CBA and, therefore, Brady was not deprived of his right to due process. Brady and the NFLPA did not appeal the decision to the Supreme Court.

Ezekiel Elliott was suspended by the NFL in August 2017 for violating the league’s domestic violence policy. Elliott appealed his suspension, and the NFL upheld it. Elliott and the NFLPA have since sued the NFL, asking for an injunction on Elliott’s suspension until the court has determined whether the NFL properly suspended Elliott. The NFL moved to dismiss the injunction request and decide the issue of whether the NFL has the power to suspend Elliott.

Mike Pennel was suspended for four games by the NFL in February 2016 for violating the NFL’s Policy on Performance-Enhancing Substances. He subsequently appealed the suspension. On November 30, 2016, Pennel sued the NFL and the NFLPA. He alleged that the NFL did not maintain a pool of three arbitrators to hear his appeal as required by the Policy on Performance-Enhancing Substances. At the time of the appeal, the NFL only had two arbitrators on the panel. The NFL added a third arbitrator after Pennel’s complaint. Subsequently, Pennel voluntarily dismissed his complaint against the NFL and the NFLPA.

Potential Impacts of Johnson’s Lawsuit

Although the NFLPA has been sued before by a player it represents, this method of challenging the arbitration process in the NFL is still uncommon. If Johnson is able to prevail on his claims against the NFL and the NFLPA, this may spark a trend in the way players challenge arbitration decisions in the future. Furthermore, Johnson’s lawsuit and its decision may affect future collective bargaining agreements between the NFL and NFLPA, in addition to influencing whether players trust the NFLPA to support them in dispute resolution.

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Sources Cited

Zachary Zagger, Union Defends NFL Arbitration In Drug Suspension Suit, Law 360, Oct. 26, 2017.

National Football League, Policy on Performance-Enhancing Substances (2016).

Marc Edelman, Lane Johnson’s New NFL Lawsuit Is Page Out Of A-Rod Playbook, Forbes, Jan. 7, 2017.

Michael McCann, Lane Johnson’s bold move to sue his own union is rare, but not unprecedented, Sports Illustrated, Jan. 11, 2017.

Ben Volin, Tom Brady officially files suit against the NFL, Boston Globe, July 29, 2015.

Zachary Zagger, NFL, Union Add Arbitrator In Drug Row, But Battles Remain, Law 360, Dec. 2, 2016.

Zachary Zagger, Packers Player Drops NFL Drug Suspension Dispute, Law 360, Dec. 19, 2016.

John Breech, Roger Goodell Will Hear Tom Brady’s Appeal; No Neutral Arbitrator, CBS Sports, May 15, 2015.

Photo courtesy of CBS Sports.

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