THE BLOG
11/07/2014 05:32 pm ET Updated Jan 07, 2015

The Rice Arbitration and the NFL

The Ray Rice saga appears to be nearing its end with a hearing before former Federal Judge Barbara S. Jones, who is serving as an arbitrator to hear the Players Association's appeal from the indefinite suspension of the running back issued by NFL Commissioner Goodell. The Union has used the appeal as an opportunity to make its case that all NFL disciplinary matters should be reviewable by an arbitrator as is the case in other unionized professional team sports. The statement it issued after the close of testimony extolled the "fair and thorough hearing" Rice had received: "We commend NFL owners and officials for the wisdom of this decision which enhances the credibility and integrity of our business." The NFL agreed to have an outside neutral hear the Rice case because the Commissioner was going to testify.

Arbitration is the greatest invention of the American labor movement. Virtually every collective bargaining agreement in all industries contains a provision for the appointment of an arbitrator to hear unresolved disputes between the parties to the agreement. Parties to the agreement design a system that meets their particular needs. In the sports industry, it is most common for labor and management to select a "permanent" arbitrator who will hear all unresolved cases. Permanent, of course, does not mean forever. When a neutral issues an opinion involving a star of the sports, such as Terrell Owens or Ryan Braun, it is not unusual that he will have heard his last case for those parties.

The selection of Judge Jones to serve as a sports arbitrator is somewhat unusual. While obviously a talented and experienced jurist, Judge Jones' experience in the law before her appointment to the bench was as a criminal prosecutor. Most sports arbitrators are full-time neutrals with decades of experience in hearing and deciding cases arising under collective bargaining agreements. They are elected members of the National Academy of Arbitrators. Although the Rice hearing was private, it likely was more legalistic in nature than the usual less formal labor case because of the neutral's judicial experience. In fact, the judge issued a "gag" order to keep the representatives of the parties from trying their case in the media. That would be most unusual in a typical labor arbitration case.

No one is a full-time sports labor arbitrator. These neutrals spend most of their time hearing non-sports cases in a variety of fields and geographic locations. Although the facts of each case are different, the issues faced are generally similar. Discipline and discharge cases are decided under the "just cause" standard that the parties normally insert in their collective bargaining agreement. A contract interpretation case requires the neutral to determine the "intent of the parties" as evidenced by the language included in their contract.

Judge Jones' decision in the Ray Rice case will turn on whether she credits the testimony of the Commissioner that when he first issued Rice a two-game suspension he had not been made aware of Rice's alleged assault of his fiancée in elevator of the Atlantic City hotel. ESPN reports that Ozzie Newsom, the General Manager of the Baltimore Ravens, testified that Rice did tell Commissioner Goodell that he had hit his fiancée. It is not unusual in arbitration for a neutral to hear differing versions of what had occurred. Resolving factual discrepancies is part of the neutral's job.

The heart of the Rice appeal is based on the concept of "double jeopardy," a principle that has long been applied by labor neutrals in disciplinary cases. Management has the prerogative to determine in the first instance the degree of punishment an employee should receive for a particular transgression. However, once that determination is made, management cannot increase the penalty, except in those very rare cases where new information comes to light that was not available when the initial decision was announced. If management could have obtained that information as part of a thorough investigation prior to administering the initial discipline, an arbitrator will likely set aside any later increase in discipline.

We will have to see how Judge Jones resolves the factual dispute, if in fact the news reports are correct that there was conflicting testimony. After receiving briefs from the parties, she may issue an award which may be followed some time later by a full opinion explaining her reasoning. In any case, the Ray Rice dispute will demonstrate to the public how labor arbitration operates in the sports industry. Whether it becomes a continuing part of the relationship between the NFL and the Players Association will depend on whether both parties see benefit in using a procedure that has otherwise found universal approval in the unionized workplace.