Were Analytics the Real MVP of the Super Bowl?

As the Eagles readied to celebrate the franchise’s first Vince Lombardi trophy, an unlikely candidate basked in the glow of being declared the game’s Most Valuable Player. Surely it was Nick Foles who, on his way to upsetting one of the NFL’s elite franchises threw and caught a touchdown in the same big game, was the true MVP. But was he?

In the days leading up to the Super Bowl, the New York Times published an article about how the Eagles leveraged analytics to secure a Super Bowl berth. The team relied, in part, on probabilistic models that leveraged years of play data to calculate likely outcomes, given a specific set of circumstances. They found that while enumerating outcomes and optimizing for success, the models would, in many cases, recommend plays that bucked the common wisdom. Indeed, we saw the Eagles run plays and make decisions throughout the season that, to the outside observer, may have seemed mind-boggling, overly-aggressive, or risky. Of course, the outside observer did not have access to the play-by-play analytics. Yet, in many instances, these data-driven decisions produced favorable results. So it seems that analytics were the real MVP, right? Well, not entirely.

As we have written in the past, the most effective analytics platforms provide guidance and should never be solely relied upon by employers when making decisions. This analytics concept rings as true in football as it does in business. The New York Times article talks about how mathematical models can serve to defend a playmaking decision that defies traditional football logic. For example, why would any team go for it on fourth and one, deep in their own zone, during their first possession in overtime? What if the analytics suggested going for it was more likely to result in success? If it fails, well, the football pundits will have a lot to talk about.

Coaches and players weigh the analytics, examine the play conditions, and gauge on-field personnel’s ability to perform. In order words, the team uses analytics as a guide and, taking into account other “soft” variables and experience, makes a decision that is right for the team at that time. This same strategy leads to success in the business world. Modern companies hold a wealth of data that can be used to inform decisions with cutting edge analytics, but data-driven insights must be balanced with current business conditions in order to contribute to success. If this balancing act works on the grand stage of professional football, it can work for your organization.

Indeed, we may soon see a day when football stars raise the Super Bowl MVP trophy locked arm-in-arm with their data science team. Until then, congratulations, Mr. Foles.

 

Jackson Lewis P.C. © 2018
This post was written by Eric J. Felsberg of Jackson Lewis P.C. 

Super Bowl 51: What to Do When Fantasy is Over and Football Fever Becomes Work Reality?

Super bowl 51Super Bowl LI is just around the corner, and many of your employees probably already have football fever. According to a January 2016 study conducted by the Workforce Institute at Kronos, 77 percent of American workers planned to watch Super Bowl 50. So whether they are cheering for the Patriot’s ninth Super Bowl appearance, the halftime show, or the much-talked-about commercials, it’s a safe bet that most of your employees will tune in to at least part of the game day programming. Here are some issues employers may want to consider as they brace themselves for game day fumbles:

1. The fantasy football pool.

Gambling is still illegal in most jurisdictions—even at work and even when it’s just over football. Federal law and most state laws prohibit gambling: the Professional and Amateur Sports Protection Act of 1992 prohibits gambling on sports in most states, and the Interstate Wire Act of 1961 has been interpreted to prohibit online betting. In some states, gambling is a misdemeanor. However, in others, while gambling is generally prohibited, gambling at work may be considered an exception under certain circumstances. Nevertheless, it’s expected that millions of workers will participate in office pools related to the Super Bowl.

Employers may want to take this opportunity to clearly delineate their policies and communicate these policies to employees. To eliminate any confusion, employers may want to relay the state law on gambling to employees and define exactly which acts are covered under the law.

2. A widespread case of the Mondays.

If your Super Bowl party goes as it should, you and your guests might have a little more Monday angst than usual. The 2016 Workforce Institute study suggested that one in 10 workers (approximately 16.5 million U.S. employees) were expected to miss work on the Monday after Super Bowl 50 and that almost 10.5 million employees had requested that Monday off.

Is there anything employers can do to curb employees’ absences on Monday? Two initial considerations when managing employee sick time requests are: (1) whether the employee has sick time available; and (2) whether the employer’s sick time policies are enforced uniformly and all employees are treated equally in terms of their requests.

Employers might be able to decrease the likelihood of employees failing to come in on Monday and create morale-building opportunities by taking some proactive steps. For example, an employer could plan a celebratory work event on the Monday after Super Bowl Sunday. Employees will be itching to talk about the ins and outs of the game and the hot new commercials anyway—they may as well do it around a football-shaped cake while wearing their favorite team’s jersey.

3. Online instant replays.

Employees are not just watching games online; they are also streaming them on social media platforms. Last year, Twitter started carrying live streams of professional football games both on its site and on its app. In 2015, Facebook launched a Super Bowl news feed consisting of a live feed, photos and videos from media outlets, posts from users’ “friends,” live scores, and other ways to interact within the Facebook community. As employees watch games online and on apps, in addition to using the company’s email to communicate, companies might experience performance degradation in their computer networks.

This is a good time to remind employees of your company’s Internet use policies as well as any policy on the appropriate use of company-issued devices such as smartphones and tablets. Whichever course employers take, they should be sure to enforce their technology policies uniformly.

With a little foresight and planning—and a few carefully implemented policies—employers can avoid the blitz when it comes to the Super Bowl and workplace productivity.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Deflategate: A Critique of Judge Berman's Decision

By now, almost everyone is familiar with Judge Berman‘s decision vacating Commissioner Roger Goodell’s award upholding a four-game suspension of New England quarterback Tom Brady in connection with the tampering of air levels in footballs during the 2015 AFC Championship game. Judge Berman found that Commissioner Goodell’s award was deficient in the following respects:

(1) that Brady had no notice that the conduct for which he was suspended — being generally aware of the misconduct of an equipment assistant and locker room attendant who deflated the balls and then refusing to cooperate with the subsequent investigation — was prohibited conduct for which he could be disciplined;

(2) that Brady was denied the opportunity to examine one of the two lead investigators who authored the investigative report upon which Commissioner Goodell relied, namely NFL Executive Vice President and General Counsel Jeff Pash; and

(3) that Brady was denied equal access to investigative files, including witness interview notes.

Judge Berman did not remand to correct these errors, but simply vacated the award.

Did Judge Berman Properly Follow the Standard for Review? How sound was Judge Berman’s decision? 

From an analysis of his opinion and well-established Supreme Court authority he was supposed to follow, it may have been the Judge himself who overstepped his bounds. It is important to remember that Commissioner Goodell’s role was that of arbitrator; the collective bargaining agreement permitted him to assume that role if he so chose and he did so choose. The level of deference that courts must give an arbitrator is extreme: in essence, as long as the arbitrator is arguably construing or applying the contract, and acting within the scope of his authority, a court cannot overturn his decision. While Judge Berman superficially acknowledged this standard, it does not appear that he actually followed it. Instead, he appeared to apply some type of “common law of the workplace” to find that Brady’s treatment was fundamentally unfair.

The first sign that Judge Berman was straying from his role was his failure to cite or acknowledge any of the leading U.S. Supreme Court cases establishing the basic principles regarding judicial review of labor arbitration awards in the collective bargaining context. The Supreme Court repeatedly has emphasized that a court is not authorized to reconsider the merits of a labor arbitration award even though the parties may allege the award was decided on errors of fact or on a misinterpretation of the contract. The Supreme Court has explained this extreme deference as emanating from the federal policy inherent in Section 301 of the Labor Management Relations Act (LMRA) favoring the settlement of labor disputes by arbitration. In essence, the parties contracted for the settlement of their dispute by an arbitrator of their choice; if dissatisfied with his decision, they are free to select a different arbitrator in the future.

The Supreme Court’s Garvey Decision

In particular, Judge Berman did not cite or deal with the Supreme Court’s decision in Major League Baseball Players Ass’n v. Garvey. This was striking, as that case, like Brady’s, arose in the context of the review of an arbitrator’s award under the collective bargaining agreement of a professional players association. The facts and decision the Garvey case are worth reviewing, as they demonstrate just how deferential the Supreme Court expects courts to be:

Steve Garvey, an All-Star first baseman, alleged that his contract with the San Diego Padres had not been extended in the 1988 and 1989 baseball seasons as part of the owners’ collusion in the market for free agents that an arbitrator had found to have taken place. He sought damages under a framework that had been set up to determine and evaluate individual player’s claims for damages due to that finding of collusion. Garvey’s main piece of evidence was a letter from the Padres’ President, Ballard Smith, admitted to the non-extension of the contract due to the collusion. However, the arbitrator rejected Garvey’s grievance by discrediting the letter because it contradicted the President’s testimony in the earlier arbitration in which the collusion had been found to exist. Bizarrely, however, in that earlier proceeding the same arbitrator specifically had found that testimony to be non-truthful in concluding there had been collusion.

Finding the arbitrator’s decision “completely inexplicable and border[ing] on the irrational,” the Court of Appeals for the Ninth Circuit vacated the award, finding the only justification for the arbitrator’s decision was “his desire to dispense his own brand of industrial justice.” Reversing, however, the Supreme Court claimed to be “baffled” by what the Court of Appeals did in light of the clearly expressed deferential standard for reviewing labor arbitration awards under Section 301. The Supreme Court acknowledged that the arbitrator’s ruling may have appeared to the Court of Appeals as “improvident or even silly,” but even so that did “not provide a basis for a court to refuse to enforce the award.” According to the Supreme Court, even when a federal judge considering the arbitration award is “convinced that the arbitrator committed serious error, it does not suffice to overturn [the arbitrator’s] decision.” This is also true when an arbitrator’s “procedural aberrations rise to the level of affirmative misconduct,” for a federal court may not “interfere with an arbitrator’s decision that the parties [players and owners] bargained for.”

Judge Berman Relied More on the Federal Arbitration Act Than Cases Under Section 301

Had Judge Berman paid closer heed to decisions such as Garvey, he might have been less inclined to wade into the weeds of assessing Commissioner Goodell’s claimed procedural aberrations. Judge Berman instead appeared to rely more heavily on cases applying the Federal Arbitration Act (FAA), which establishes four limited statutory grounds for vacating an arbitration award. Judge Berman zeroed in on the FAA’s exceptions allowing vacatur where the arbitrator is “guilty of misconduct . . . in refusing to hear evidence pertinent and material to the controversy” or in “exceeding his powers.”

The problem with relying on the FAA, however, is that the FAA has been held not to apply to labor disputes, although to be sure federal courts have often looked to the FAA for guidance in labor arbitration cases. Section 301, which does apply, does not provide statutory grounds for vacating a labor arbitration award, although, as seen, the Supreme Court has made clear what a court may not do. As the body of case law applying Section 301 has developed, the main reasons a court may vacate a labor arbitration award appear to be if (i) the award does not “draw its essence” from the labor agreement, meaning it conflicts with the express terms of the agreement, imposes additional requirements not expressly provided for in the agreement, or is based on “general considerations of fairness and equity” instead of the exact terms of the agreement; or (ii) it violates a well-settled and prevailing public policy.

The Problems With Judge Berman’s Findings

Judge Berman first found fault in Commissioner Goodell’s award because the Judge found that Brady did not have notice that he could receive a four game suspension for general awareness of a scheme to deflate footballs, or for non-cooperation with the NFL’s investigation. He also attacked Commissioner Goodell’s reasoning in looking to penalties for violations of the league’s steroid policy as a justification for upholding a four game suspension. He further found that Brady had no notice he could be suspended rather than fined. Citing decisions by other arbitrators involving NFL players, Judge Berman concluded that Commissioner Goodell violated the “law of the shop” by failing to find there was inadequately notice of prohibited conduct and potential discipline.

In all of this, however, Judge Berman was doing what the Supreme Court has stated a judge should not do: second-guessing the arbitrator. For example, the so-called “law of the shop” is not something akin to the common law that a court must follow. Rather, it is up to the labor arbitrator alone to interpret precedent by other arbitrators or, as the Supreme Court has put it, to simply to conclude “that he was not bound by” a prior arbitrator’s decision. Judge Berman relied heavily on decisions by other arbitrators in other high-profile NFL cases — such as “Bounty-Gate” and the Ray Rice and Reggie Langhorne cases — to find that Brady was entitled to the type of notice that Judge Berman thought he was entitled to. But that simply was not Judge Berman’s role to say.

Moreover, Brady’s notice contentions were acknowledged and rejected by Commissioner Goodell in his post-hearing detailed award that was also based on his assessment of the evidence — including Brady’s credibility and the exhaustive Wells investigative report upon which he relied. There can be no question that in so doing the Commissioner was “arguably construing or applying the contract,” which is all it took to require enforcement of his award. In short, the Commissioner was entitled to disbelieve that two equipment employees would take it on their own to deflate the footballs without the knowledge or involvement of the quarterback of the team, and to conclude that Brady’s awareness was conduct detrimental to public confidence in the integrity of the game. He also was entitled to believe that Brady deserved to be penalized for refusing to cooperate with the investigation and then destroying his cell phone rather than turn it over to the investigators, even if there was no specific rule that said he could not do this.

Judge Berman was on similarly weak footing in attacking the punishment meted out (suspension versus fine) because he thought it was error for Commissioner Goodell to uphold the penalty by borrowing from the schedule of penalties for violations of the league’s steroid policy. Again, such judgment calls are quintessentially for the arbitrator, and the suspension penalty echoed the penalty that the Patriots themselves had issued to its equipment employees for their roles.

Relying on the FAA, Judge Berman further justified his decision to vacate Commissioner Goodell’s award based on the latter’s refusal to allow Jeff Pash to testify at the arbitration hearing. Judge Berman found this to be “fundamentally unfair,” because Pash was the co-lead investigator of the investigation, known as the Wells Report. Commissioner Goodell had excluded Pash because Pash had not in fact played substantive role in the investigation, his role having been limited to comments on the draft of the report. Commissioner Goodell moreover regarded any testimony by Pash  as cumulative, as Wells, the report’s architect, was allowed to testify. But Judge Berman determined that Pash would have had valuable insight into the course and outcome of the investigation and into the drafting and content of the Wells Report. Therefore, he found that Brady was prejudiced because he could not explore how truly independent the report was.

Again, Judge Berman appeared to have simply second-guessed Commissioner Goodell, given that Commissioner Goodell had substantial discretion to admit or exclude evidence without having to “follow all the niceties observed by the federal courts.”  Commissioner Goodell had at least a colorable basis for excluding Pash’s testimony. Indeed, his rationale for excluding that testimony was that which a court might have applied. Further, Judge Berman’s conclusion as to how Brady was prejudiced appeared speculative as to whatever additional value Pash’s testimony would have supplied.

Judge Berman came closest to presenting a valid basis for vacating the award in his determination that Commissioner Goodell had improperly denied Brady equal access to Wells’ investigative files and interview notes. Commissioner Goodell had justified his denial of access to those files, including interview notes, because they had played no role in the disciplinary decisions, which were based on the Wells Report itself. But as Judge Berman observed, the Wells Report was based on those notes. Furthermore, compounding the prejudice to Brady was that Wells’ law firm, Paul, Weiss, acted as both independent counsel and as retained counsel to the NFL during the arbitration hearing. NFL counsel therefore had access to the investigate file for direct and cross examination while Brady had no such access.

These observations have some merit. After all, it does not seem fair that Brady had no access to the notes and interviews upon which the report was based, especially when the same law firm that produced the report also represented the NFL at the arbitration hearing. But Article 46 of the collective bargaining agreement expressly limited discovery to the exchange of exhibits upon which the parties intended to rely at the hearing. The Commissioner’s decision to deny additional discovery was based on his interpretation of that provision, such that it at least arguably “drew its essence” from the collective bargaining agreement. Furthermore, as stated, Commissioner Goodell asserted that the investigation notes played no role in his decision on appeal, and other notes had been provided, such as the interview notes from the NFL’s own investigators.

Judge Berman Should Have Remanded

The final error in Judge Berman’s decision is that he did not remand the case. The procedural and due process errors appeared to be correctable. For example, Judge Berman could have instructed Commissioner Goodell to reconvene the hearing to allow Brady to access the Wells investigative files and to call Pash as a witness. In the Garvey case, the Supreme Court expressly criticized the Ninth Circuit for not remanding, because by not remanding the court in essence was deciding the case. Here, too, Judge Berman in essence was resolving the dispute, and without even making any judgment as to whether Brady did or did not have a role in the tampering that took place.

Immediately after Judge Berman issued his decision, the NFL announced it was appealing. Based on Judge Berman’s apparent failure to properly follow the applicable highly deferential standard, the NFL’s chances for success on appeal appear to be good.

Deflategate: A Critique of Judge Berman’s Decision

By now, almost everyone is familiar with Judge Berman‘s decision vacating Commissioner Roger Goodell’s award upholding a four-game suspension of New England quarterback Tom Brady in connection with the tampering of air levels in footballs during the 2015 AFC Championship game. Judge Berman found that Commissioner Goodell’s award was deficient in the following respects:

(1) that Brady had no notice that the conduct for which he was suspended — being generally aware of the misconduct of an equipment assistant and locker room attendant who deflated the balls and then refusing to cooperate with the subsequent investigation — was prohibited conduct for which he could be disciplined;

(2) that Brady was denied the opportunity to examine one of the two lead investigators who authored the investigative report upon which Commissioner Goodell relied, namely NFL Executive Vice President and General Counsel Jeff Pash; and

(3) that Brady was denied equal access to investigative files, including witness interview notes.

Judge Berman did not remand to correct these errors, but simply vacated the award.

Did Judge Berman Properly Follow the Standard for Review? How sound was Judge Berman’s decision? 

From an analysis of his opinion and well-established Supreme Court authority he was supposed to follow, it may have been the Judge himself who overstepped his bounds. It is important to remember that Commissioner Goodell’s role was that of arbitrator; the collective bargaining agreement permitted him to assume that role if he so chose and he did so choose. The level of deference that courts must give an arbitrator is extreme: in essence, as long as the arbitrator is arguably construing or applying the contract, and acting within the scope of his authority, a court cannot overturn his decision. While Judge Berman superficially acknowledged this standard, it does not appear that he actually followed it. Instead, he appeared to apply some type of “common law of the workplace” to find that Brady’s treatment was fundamentally unfair.

The first sign that Judge Berman was straying from his role was his failure to cite or acknowledge any of the leading U.S. Supreme Court cases establishing the basic principles regarding judicial review of labor arbitration awards in the collective bargaining context. The Supreme Court repeatedly has emphasized that a court is not authorized to reconsider the merits of a labor arbitration award even though the parties may allege the award was decided on errors of fact or on a misinterpretation of the contract. The Supreme Court has explained this extreme deference as emanating from the federal policy inherent in Section 301 of the Labor Management Relations Act (LMRA) favoring the settlement of labor disputes by arbitration. In essence, the parties contracted for the settlement of their dispute by an arbitrator of their choice; if dissatisfied with his decision, they are free to select a different arbitrator in the future.

The Supreme Court’s Garvey Decision

In particular, Judge Berman did not cite or deal with the Supreme Court’s decision in Major League Baseball Players Ass’n v. Garvey. This was striking, as that case, like Brady’s, arose in the context of the review of an arbitrator’s award under the collective bargaining agreement of a professional players association. The facts and decision the Garvey case are worth reviewing, as they demonstrate just how deferential the Supreme Court expects courts to be:

Steve Garvey, an All-Star first baseman, alleged that his contract with the San Diego Padres had not been extended in the 1988 and 1989 baseball seasons as part of the owners’ collusion in the market for free agents that an arbitrator had found to have taken place. He sought damages under a framework that had been set up to determine and evaluate individual player’s claims for damages due to that finding of collusion. Garvey’s main piece of evidence was a letter from the Padres’ President, Ballard Smith, admitted to the non-extension of the contract due to the collusion. However, the arbitrator rejected Garvey’s grievance by discrediting the letter because it contradicted the President’s testimony in the earlier arbitration in which the collusion had been found to exist. Bizarrely, however, in that earlier proceeding the same arbitrator specifically had found that testimony to be non-truthful in concluding there had been collusion.

Finding the arbitrator’s decision “completely inexplicable and border[ing] on the irrational,” the Court of Appeals for the Ninth Circuit vacated the award, finding the only justification for the arbitrator’s decision was “his desire to dispense his own brand of industrial justice.” Reversing, however, the Supreme Court claimed to be “baffled” by what the Court of Appeals did in light of the clearly expressed deferential standard for reviewing labor arbitration awards under Section 301. The Supreme Court acknowledged that the arbitrator’s ruling may have appeared to the Court of Appeals as “improvident or even silly,” but even so that did “not provide a basis for a court to refuse to enforce the award.” According to the Supreme Court, even when a federal judge considering the arbitration award is “convinced that the arbitrator committed serious error, it does not suffice to overturn [the arbitrator’s] decision.” This is also true when an arbitrator’s “procedural aberrations rise to the level of affirmative misconduct,” for a federal court may not “interfere with an arbitrator’s decision that the parties [players and owners] bargained for.”

Judge Berman Relied More on the Federal Arbitration Act Than Cases Under Section 301

Had Judge Berman paid closer heed to decisions such as Garvey, he might have been less inclined to wade into the weeds of assessing Commissioner Goodell’s claimed procedural aberrations. Judge Berman instead appeared to rely more heavily on cases applying the Federal Arbitration Act (FAA), which establishes four limited statutory grounds for vacating an arbitration award. Judge Berman zeroed in on the FAA’s exceptions allowing vacatur where the arbitrator is “guilty of misconduct . . . in refusing to hear evidence pertinent and material to the controversy” or in “exceeding his powers.”

The problem with relying on the FAA, however, is that the FAA has been held not to apply to labor disputes, although to be sure federal courts have often looked to the FAA for guidance in labor arbitration cases. Section 301, which does apply, does not provide statutory grounds for vacating a labor arbitration award, although, as seen, the Supreme Court has made clear what a court may not do. As the body of case law applying Section 301 has developed, the main reasons a court may vacate a labor arbitration award appear to be if (i) the award does not “draw its essence” from the labor agreement, meaning it conflicts with the express terms of the agreement, imposes additional requirements not expressly provided for in the agreement, or is based on “general considerations of fairness and equity” instead of the exact terms of the agreement; or (ii) it violates a well-settled and prevailing public policy.

The Problems With Judge Berman’s Findings

Judge Berman first found fault in Commissioner Goodell’s award because the Judge found that Brady did not have notice that he could receive a four game suspension for general awareness of a scheme to deflate footballs, or for non-cooperation with the NFL’s investigation. He also attacked Commissioner Goodell’s reasoning in looking to penalties for violations of the league’s steroid policy as a justification for upholding a four game suspension. He further found that Brady had no notice he could be suspended rather than fined. Citing decisions by other arbitrators involving NFL players, Judge Berman concluded that Commissioner Goodell violated the “law of the shop” by failing to find there was inadequately notice of prohibited conduct and potential discipline.

In all of this, however, Judge Berman was doing what the Supreme Court has stated a judge should not do: second-guessing the arbitrator. For example, the so-called “law of the shop” is not something akin to the common law that a court must follow. Rather, it is up to the labor arbitrator alone to interpret precedent by other arbitrators or, as the Supreme Court has put it, to simply to conclude “that he was not bound by” a prior arbitrator’s decision. Judge Berman relied heavily on decisions by other arbitrators in other high-profile NFL cases — such as “Bounty-Gate” and the Ray Rice and Reggie Langhorne cases — to find that Brady was entitled to the type of notice that Judge Berman thought he was entitled to. But that simply was not Judge Berman’s role to say.

Moreover, Brady’s notice contentions were acknowledged and rejected by Commissioner Goodell in his post-hearing detailed award that was also based on his assessment of the evidence — including Brady’s credibility and the exhaustive Wells investigative report upon which he relied. There can be no question that in so doing the Commissioner was “arguably construing or applying the contract,” which is all it took to require enforcement of his award. In short, the Commissioner was entitled to disbelieve that two equipment employees would take it on their own to deflate the footballs without the knowledge or involvement of the quarterback of the team, and to conclude that Brady’s awareness was conduct detrimental to public confidence in the integrity of the game. He also was entitled to believe that Brady deserved to be penalized for refusing to cooperate with the investigation and then destroying his cell phone rather than turn it over to the investigators, even if there was no specific rule that said he could not do this.

Judge Berman was on similarly weak footing in attacking the punishment meted out (suspension versus fine) because he thought it was error for Commissioner Goodell to uphold the penalty by borrowing from the schedule of penalties for violations of the league’s steroid policy. Again, such judgment calls are quintessentially for the arbitrator, and the suspension penalty echoed the penalty that the Patriots themselves had issued to its equipment employees for their roles.

Relying on the FAA, Judge Berman further justified his decision to vacate Commissioner Goodell’s award based on the latter’s refusal to allow Jeff Pash to testify at the arbitration hearing. Judge Berman found this to be “fundamentally unfair,” because Pash was the co-lead investigator of the investigation, known as the Wells Report. Commissioner Goodell had excluded Pash because Pash had not in fact played substantive role in the investigation, his role having been limited to comments on the draft of the report. Commissioner Goodell moreover regarded any testimony by Pash  as cumulative, as Wells, the report’s architect, was allowed to testify. But Judge Berman determined that Pash would have had valuable insight into the course and outcome of the investigation and into the drafting and content of the Wells Report. Therefore, he found that Brady was prejudiced because he could not explore how truly independent the report was.

Again, Judge Berman appeared to have simply second-guessed Commissioner Goodell, given that Commissioner Goodell had substantial discretion to admit or exclude evidence without having to “follow all the niceties observed by the federal courts.”  Commissioner Goodell had at least a colorable basis for excluding Pash’s testimony. Indeed, his rationale for excluding that testimony was that which a court might have applied. Further, Judge Berman’s conclusion as to how Brady was prejudiced appeared speculative as to whatever additional value Pash’s testimony would have supplied.

Judge Berman came closest to presenting a valid basis for vacating the award in his determination that Commissioner Goodell had improperly denied Brady equal access to Wells’ investigative files and interview notes. Commissioner Goodell had justified his denial of access to those files, including interview notes, because they had played no role in the disciplinary decisions, which were based on the Wells Report itself. But as Judge Berman observed, the Wells Report was based on those notes. Furthermore, compounding the prejudice to Brady was that Wells’ law firm, Paul, Weiss, acted as both independent counsel and as retained counsel to the NFL during the arbitration hearing. NFL counsel therefore had access to the investigate file for direct and cross examination while Brady had no such access.

These observations have some merit. After all, it does not seem fair that Brady had no access to the notes and interviews upon which the report was based, especially when the same law firm that produced the report also represented the NFL at the arbitration hearing. But Article 46 of the collective bargaining agreement expressly limited discovery to the exchange of exhibits upon which the parties intended to rely at the hearing. The Commissioner’s decision to deny additional discovery was based on his interpretation of that provision, such that it at least arguably “drew its essence” from the collective bargaining agreement. Furthermore, as stated, Commissioner Goodell asserted that the investigation notes played no role in his decision on appeal, and other notes had been provided, such as the interview notes from the NFL’s own investigators.

Judge Berman Should Have Remanded

The final error in Judge Berman’s decision is that he did not remand the case. The procedural and due process errors appeared to be correctable. For example, Judge Berman could have instructed Commissioner Goodell to reconvene the hearing to allow Brady to access the Wells investigative files and to call Pash as a witness. In the Garvey case, the Supreme Court expressly criticized the Ninth Circuit for not remanding, because by not remanding the court in essence was deciding the case. Here, too, Judge Berman in essence was resolving the dispute, and without even making any judgment as to whether Brady did or did not have a role in the tampering that took place.

Immediately after Judge Berman issued his decision, the NFL announced it was appealing. Based on Judge Berman’s apparent failure to properly follow the applicable highly deferential standard, the NFL’s chances for success on appeal appear to be good.

NLRB Calls Out Punt Team and Declines Jurisdiction Over Northwestern University Football Players

In a mild surprise given the current constitution of the Board (read – majority appointed by President Obama), the NLRB declined to assert jurisdiction in ruling on the petition of Northwestern University’s scholarship football players to unionize.  However, in a display of special teams not seen on a football field in Evanston, Illinois since the days of John Kidd, the NLRB reached its decision without determining if scholarship players were “employees” under the National Labor Relations Act.  Even with this limitation, it is clear competitive balance considerations for NCAA Division I sports has received great deference as a policy matter in a legal dispute.

I will not take this opportunity to point out my initial forecast that the NLRB would find this case extremely unique for its jurisdiction and the original decision by the Chicago NLRB regional office would be reassessed given the potential effect on permissible amateurism.  Not doing it.  It is sufficient to note this decision affirms the desire of the NLRB to see the student-athlete/employee question answered by Congress and/or the NCAA member institutions, although not necessarily in that order.

A fair question in reading the Board’s decision is whether the same result would have occurred if the “Power 5” conferences had not recently enacted measure to provide athletic aid for the full cost of attendance and extra benefits for scholarship athletes.  Since Northwestern University, as a member of the Big Ten, is subject to these new rules, it provided a floor for the enhancement of student-athlete benefits.  The Board noted this enhancement, even though it occurred after the scholarship football players filed their petition and there is no indication it would have been sufficient for collective bargaining purposes.

As the National Labor Relations Act does not cover public employees, it is important to remember the majority of Division I student-athletes participating in revenue-generating sports attend state universities.  The ability of public employees to organize for collective bargaining is governed by state law.  While the NLRB’s decision notes that Ohio and Michigan have recently enacted legislation which precludes union organization by student-athletes of their state universities (putting those perpetual lovebirds, the University of Michigan and The Ohio State University in the same basket), keep an eye on states like Connecticut and Pennsylvania which have recently considered legislation that goes the opposite direction to explicitly provide student-athletes the status of employees for purposes of collective bargaining.

Since this legal issue is by no means resolved, private NCAA institutions are still advised to make sure that NCAA and university-sponsored rules which govern practice time, academic advice and progress, athletic-related activities, and student-athlete wellness are monitored for compliance.  As a best practice, institutions should consider third-party compliance audits which not only uncover hidden legal vulnerabilities, but also are helpful in defusing the concerns which could lead to an organizational effort by the football or basketball team.

©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

College Football Players As Employees ? – Illegal Formation!

Godfrey Kahn Law Firm

Members of the Senate Health, Education, Labor and Pensions (HELP) Committee filed an amicus brief on July 10 that opposed unionization of college athletes. A case involving athletes at Northwestern University is pending before the National Labor Relations Board. Northwestern University and College Athletes Players Association (CAPA), Case No. 13-RC-121359

Sen. Lamar Alexander (R-Tenn.) and fellow committee members Senator Richard Burr (R-N.C.) and Senator Johnny Isakson (R-Ga.) along with members of several House Committees signed the amicus brief in support of Northwestern University in the case. The brief stated:

“Congress never intended for college athletes to be considered employees under the National Labor Relations Act, and doing so is incompatible with the student-university relationship,” the senators said. “The profound and inherent differences between the student-university and employee-employer relationship makes employee status unworkable both as a matter of law and in practice.”

The complete brief can be found here.

The American Council on Education also filed an amicus brief on July 3. That brief can be found here.

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“REDSKINS” US Trademark Registrations are Canceled for Disparaging Native Americans

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A three-judge panel of the US Trademark Trial and Appeal Board (TTAB), for the second time and in a 2-1 decision, has held that the REDSKINS trademark used in connection with professional football and related services by the Washington Redskins National Football League team was disparaging to a substantial composite of Native Americans between 1967-1990, the time during which the registrations issued. It also held that the defense of laches did not apply to a disparagement claim where the disparagement pertains to a group of which the individual plaintiff or plaintiffs comprise one or more members. Accordingly, it ordered the registrations at issue canceled as violations of Section 2(a) of the Trademark Act. The cancellation of the registrations has no effect on the team’s ability to continue to use the REDSKINS marks.

Efforts to cancel the REDSKINS registrations have been ongoing for many years. The first petition to cancel the registrations was filed in 1992 and, after seven years of litigation, the TTAB canceled the registrations on grounds that the marks were disparaging to Native Americans. After several rounds of appeals and remands through the DC federal courts, the case was dismissed on grounds of laches.

While the above proceedings were still pending, six new individual petitioners, all Native Americans, initiated the current case seeking to cancel the same REDSKINS registrations. The matter was suspended pending a final decision in the above proceedings, and resumed in March 2010. After four more years of litigation, the TTAB again cancelled the registrations for disparaging Native Americans.

The Trademark Act prohibits registration of a trademark which may disparage persons or bring them into contempt or disrepute. A two-pronged test was used by the TTAB to decide the issue of disparagement as follows:

  1. What is the meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the goods and services identified in the registrations?
  2. Is the meaning of the marks one that may disparage Native Americans?

Both questions are required to be answered as of the various dates of registration of the marks involved, which was between 1967 and 1990, considering the views during that time of a substantial composite of Native Americans, not the American public as a whole. The questions are not to be determined based on current views on the subject.

The TTAB found that first prong was satisfied by evidence that the term REDSKINS when used by the Washington Redskins football team retained its Native American meaning and imagery inherent in the original definition of the word. It stated that the football team “has made continuous efforts to associate its football services with Native American imagery.”

The second prong of the test required a determination of whether the use of the word was disparaging within the context of its use. “Context of use” can consist of several types:

  1. One which turns an innocuous term into a disparaging one;
  2. One which strips the disparaging meaning from the disparaging term; and
  3. One which has no effect on the disparaging meaning.

The TTAB held that as used by the football team, the word “Redskins” retained its original meaning and the context of the use had no effect on the disparaging nature of the word. It noted that the team’s “alleged honorable intent and manner of use of the term” did not change this finding.

In reaching its decision to cancel the registrations, the TTAB considered expert reports and testimony, dictionary definitions, and reference books. In considering the specific views of Native Americans, it considered the National Congress of American Indians’ (NCAI) 1993 Resolution 93-11, deposition testimony of several Native Americans, and various newspaper articles, reports, official records, and letters of protest filed at the Trademark Office. It concluded that the NCAI Resolution represented the views of a substantial composite of Native Americans who believed the term was disparaging, that the trend in dictionary usage labels corroborated the time frame of objections from Native Americans starting in the late 60s and continuing through the 90s as lexicographers began and finally uniformly labeled the term as “offensive” or  “disparaging,” and that, at a minimum, approximately 30% of Native Americans found the term used in connection with football services to be disparaging at all the times at issue.

In rejecting the laches defense, the TTAB stated that it was difficult “to justify a balancing of equities where a registrant’s financial interest is weighed against human dignity.”  Moreover, both it and the courts have routinely held that when a broader public policy concern is at issue, the laches defense does not apply.

The dissenting judge disagreed with the majority’s decision on the claim of disparagement arguing that the dictionary evidence relied upon was inconclusive and there was no reliable evidence to corroborate the membership of the National Counsel of American Indians. However, he stated that he wanted to make clear that the case was “not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today.” He disagreed with the majority that the evidence of record proved that the term was disparaging “at the time each of the challenge registrations issued.”

According to the Washington Post, the Redskins plan to appeal the decision and the team has no plans to discontinue use of the REDSKINS mark. Unlike the last proceeding, any appeal of this decision will not go to the DC federal courts but must now go to the United States District Court for the Eastern District of Virginia. This change was implemented in the America Invents Act which was enacted in September 2011 and it is not clear how a different court will decide these issues. The cancellation of the registrations will be stayed pending any appeal.

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