#6: Arbitral review of discipline for player misbehavior

Commisioner’s Authority

• Commissioner’s rule is more like employer than a neutral

• Key union victory was appeal to impartial arbitrator

• Different CBAs give Commissioner varying power to rule on misbehavior issues

• Note (Howe) suggestion that Commissioner must meet higher standard than ordinary employers, because workers can’t go elsewhere

Review of Discipline: NFL

• Commissioner discipline unreviewable• Art XI of CBA: Commissioner hears final appeals

re discipline for conduct detrimental to “the integrity, or public confidence in, the game of professional football”

Review of Discipline: MLB

• Unreviewable for on-field conduct• Off-field conduct generally subject to just cause

review• Commissioner reserves power to remove

discipline affecting best interests from impartial arbitrator– Union then has right to immediately strike– Power has never been invoked

Review of Discipline: NBA

• Unreviewable for minor punishment• General rule is just cause standard• Where conduct concerns “the preservation of

the integrity of, or the maintenance of public confidence in, the game of basketball”, review is based on arbitrary & capricious standard

Club Discipline

• Relevant contract provisions– Just cause for clubs (MLB Art XII, Pt A)– UPC para 7(b)(1): good sportsmanship

• Subject to arbitration• Course of Performance matters a lot• Parties can reverse decisions: e.g. Art VI §10

of NBA CBA, reversing Sprewell on question of two penalties

• Standard Player Contract permits termination

Just Cause standard

• Substantive components:– Progressive discipline– Mitigating factors– Consistent or proportionate with prior

penalties for comparable acts

• Procedurally: process must be “fundamentally fair”

Eagles and Owens

• Did the Eagles have just cause to suspend Owens without pay for four games (25% of his salary)?

• Did the club have the power to refuse to let him play or practice with pay for the rest of the season?

• Is there any limit to club’s discretion? Suppose ardent Republican Cowboys’ owner Jerry Jones orders a player benched for contributing to President Obama’s reelection?

Owens /2

• Consider a contract-law alternative to discipline for solving these problems: – allow the Eagles to terminate contract on

grounds of breach– allow Eagles to pay another club for

replacement player (assuming new player’s salary fits within cap)

– Eagles sue TO for difference

Discipline for Recreational Drugs

• Suppose several residents of Akron write to NBA Commissioner David Stern alleging that LeBron James and Duane Wade were seen snorting cocaine at a local bar and then leak their allegation to the newspaper; may he order them to be drug tested?

/2 Rec Drugs

• Suppose 2 federal DEA agents write to Stern that they witnessed the same event?

Seeking Treatment

• In 2006, NBA announced that Hornets F Chris Anderson was dismissed and disqualified for violating drug policy– What did he do?– When can he play again?– Suppose he tells a PA official that he

wants to go into rehab?– Suppose he checked himself into the

Malibu rehab center used by Lindsay Lohan?

Drug testing: Williams• Do you agree with Jeff Pash that strict liability rule

applies, even though league knew and failed to inform? – Suppose players had called NFL hotline, asked if

StarCaps was ok, and were simply told that the NFL discourages any dietary supplements because (i) they are bad for you and (ii) not subject to FDA regulation so labeling unreliable?

• Why should the court uphold the “arbitrator’s award” when the arbitrator is the employer’s lawyer?

/2 Williams• Suppose PA adopted a state law

barring discipline for positive drug tests with strict liability, and GA has no such rule; Troy Polamalu and Matt Ryan test positive for the exact same banned substance– Does it make sense that for

Sunday’s Steelers-Falcons game the NFL cannot suspend Palamalu but can suspend Ryan?

– Is the Cramer case [155] distinguishable?

Contracts and Drug Abuse

• While on the Pittsburgh Pirates, Dave Parker admittedly abused cocaine and his batting performance dropped

• Under what theories can the Pirates recover money from Parker?

DAVE PARKER STATISTICSYEAR H 2B HR RBI BA

75 172 35 25 101 0.30876 168 28 13 90 0.31377 215 44 21 88 0.33878 194 32 30 117 0.33479 193 45 25 94 0.3180 153 31 17 79 0.29581 62 14 9 48 0.25882 66 19 6 29 0.2783 154 29 12 69 0.27984 173 28 16 94 0.28585 198 42 34 125 0.31286 174 31 31 116 0.27387 149 28 26 91 0.253