Judge David Doty has been hearing labor and antitrust cases involving the National Football League and the Players Association for decades. Although he knows the parties and their collective bargaining agreement, his decision in the Adrian Peterson case shows he doesn't know arbitration. His reversal of the hearing officer's decision involving Peterson's suspension threatens the NFL Commissioner's power under the collective bargaining agreement to discipline players for personal, off-field misconduct.
Recognizing the importance of the decision, the media featured stories about how Doty's decision would free the great running back to return to the Minnesota backfield (or maybe not). Far more important, however, are the implications of the manner in which Judge Doty reviewed hearing officer Harold Henderson's decision upholding the Commissioner's indefinite suspension of Peterson. Commissioner Roger Goodell had appointed Henderson, a former NFL executive, to hear Peterson's appeal. Although in court both the NFL and the Players Association characterized Henderson as an arbitrator, he was not an independent neutral selected jointly by the NFL and the Players Association. The Commissioner himself could have heard the appeal from his own decision, but he chose not to. Henderson was the Commissioner's designee.
Although he too saw Mr. Henderson as an arbitrator, Judge Doty correctly explained a court's extremely limited role in reviewing an arbitrator's decision. The Supreme Court has plainly stated that a court is not to review an arbitrator's decision on the merits. The issue on appeal is a very limited one: whether the arbitrator "drew his essence from the collective bargaining agreement," not whether he decided the case correctly. The Supreme Court emphasized that even if an arbitrator is wrong, his or her decision should not be disturbed on appeal if it was based on a reading of the contract. Here is where Judge Doty went wrong. He overturned the decision based on his own view of what Henderson should have done. Henderson, Judge Doty said, should have followed the "law of the shop" as Doty saw that law.
The Ray Rice decision played an important role in Judge Doty's reasoning. He found that decision, by former federal judge Barbara Jones, to have established the "law of the shop," that is, the controlling principles under the parties' collective bargaining agreement. This "law" was that the Commissioner could not apply his revised disciplinary policy to conduct that occurred before it was announced. Mr. Henderson rejected that argument, which was made to him by the Players Association. Instead, he interpreted the collective bargaining agreement as giving the Commissioner "broad discretion" in imposing discipline. Judge Doty flatly states: "The Court disagrees." That is exactly what a court is not supposed to do -- agree or disagree with an arbitrator. Judge Doty did not have the power to review Henderson's reading of the contract language on the merits.
Judge Doty also misunderstood the nature of arbitration under a collective bargaining agreement. While it may be true that one court decision in a jurisdiction might control later cases, that is certainly not the way labor arbitration operates. The Ray Rice decision did not create binding precedent. Judge Doty writes that he can find no valid basis to distinguish the Peterson case from the Rice case. That, of course, was Harold Henderson's job, not David Doty's, as long as he carried out that task by interpreting the parties' contract. It does not matter whether the court on review agrees or disagrees with that contract reading.
There are more problems with Judge Doty's decision. He criticizes Mr. Henderson's failure to apply the "well-recognized bar against retroactivity." Where exactly in the collective bargaining agreement is this "well-recognized bar?" Once again, the Judge applies his own personal view, marching down the wrong path.
The irony of Judge Doty's decision is that the outcome he ultimately reached might be correct but for the wrong reasons. The decision by Mr. Henderson was not that of an arbitrator. It was a management decision taken pursuant to the grant of power under the collective bargaining agreement. This type of decision might be reviewed in court under what is referred to as "the law of private voluntary associations." The court would determine whether the Commissioner and his delegate Mr. Henderson had the power to issue the indefinite suspension of Peterson. If the court on review finds the decision to be "totally arbitrary and capricious," it will set it aside. Arguably, Judge Doty could have found the Commissioner's suspension to fall into this category, not because the Judge did not agree with the outcome, but because it failed to pass any test of rationality. Although courts are not quick to reach such a result, it would have stood as better law.
As it stands now, Judge Doty's opinion jeopardizes the NFL Commissioner's power to bring some order back to the business after a difficult year. It lends support to the Players Association's plea that personal misconduct cases should be heard in arbitration. (Judge Doty apparently thought the union had already achieved that goal.) It also constitutes a bad precedent outside of football concerning the role of courts and arbitrators in the resolution of workplace disputes. That was why the NFL announced almost immediately that it was going to appeal the Doty decision. It should prevail on appeal.