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10 Arb. L. Rev. 1 (2018)

handle is hein.journals/anlwrvw10 and id is 1 raw text is: 1 Clear Statement Rules and the Integrity of Labor Arbitration Stephen F. Ross and Roy Eisenhardt* ABSTRACT Under the common law, employment contracts are submitted to civil courts to resolve disputes over interpretation, breach, and remedies. As an alternative, parties in collective bargaining agreements, can agree to dispute resolution by an independent arbitrator, whose decision is reviewed deferentially by judges. Where employees or members of an association are governed by its internal rules, in contrast, they often agree contractually to submit internal disputes to an association officer or committee. In this circumstance, the common law governing private associations affords judicial review that is more limited than a civil dispute, but more searching than is the case for an impartial labor arbitrator. Recently, the National Football League and its players have gone to federal court in well- known disputes concerning player discipline. Although the collective bargaining agreement expressly removes these issues from impartial arbitration, recent cases have curiously been litigated as if the league commissioner is an independent arbitrator. This Article suggests that this is the wrong characterization of the league commissioner's legal role. Treating the commissioner as if he were an arbitrator creates an anomaly: a unionized player's grounds for judicial review are more narrowly defined than discipline of a non-union employee, evenfor the same behavior. The use of management personnel in lieu of an independent arbitrator also elevates the temptation for federal judges to stretch the deferential rules of review of labor arbitration developed for independent arbitrators. We discuss the baseline law of private association and why it is a superior standard of judicial review in player disciplinary cases, where there has been no review by an independent arbitrator. I. INTRODUCTION Within our judicial system, there is a broad spectrum of standards that apply to judicial review of an initial decision resolving a civil dispute. In a civil action, the parties may seek review by an appellate court, which will thoroughly examine the record for mistakes of law and fact.1 As an alternative to the judicial process, parties often agree to non-judicial commercial or labor arbitration by an independent arbitrator. In this context, the losing party retains the right of judicial review. However, the process is a more-limited * Ross is Professor of Law and Executive Director, Center for the Study of Sports in Society, Pennsylvania State University. Eisenhardt is Lecturer in Sports Law, Berkeley Law, University of California (Berkeley), and former President of the Oakland Athletics baseball club. We thank Professors Doug Allen and Paul Whitehead of the School of Labor and Employment Relations at Penn State for their critical insights, general assistance from Professor Roger Abrams, and Krista Dean and Nicholas Lyskin for research assistance. 1 FED. R. Civ. P. 59.

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