This week, Philadelphia Eagles offensive lineman Lane Johnson filed a federal lawsuit against the NFL, the National Football League Player’s Association (NFLPA), and the National Football League Management Council alleging that the arbitration hearing regarding his suspension for violating league’s performance enhancing policy was a “sham proceeding.”
This isn’t the first time the NFL has been dragged out of its self-created comfort zone and into federal court. In Deflategate, Tom Brady recently challenged – and eventually succumbed to – Roger Goodell’s authority via the U.S. Court of Appeals. In that case, Brady had the NFLPA on his side. Here, Johnson is taking on entire system and the NFL and NFLPA find themselves in an unusual position … on the same team.
Will the league’s most recent foray into federal court be as eventful as the last? Let’s break it down:
What Lead to the Suspension and Arbitration Hearing?
In early August, Lane Johnson was suspended for his second violation of the NFL’s Policy on Performance-Enhancing Substances (the “Policy”). According to the Policy, the second time a player tests for positive for a prohibited substance, he is automatically suspended for ten regular and/or postseason games without pay, and the suspension begins when the “player accepts discipline or his appeal becomes final.” In his defense, Johnson told Jay Glazer that he took an amino acid that was approved by the league but tested positive for peptide, and that he would be fighting the suspension as well the company that provided the substance.
What Does the Policy Say about Arbitration?
A player who is notified by the NFL Management Council that he has been suspended or fined as a result of a violating the Policy has five business days to appeal the league’s decision, and generally speaking, appeal hearings take place on the fourth Tuesday following the player being notified of disciplinary action. At hearing, the player’s representative is allowed to present relevant evidence or testimony, and the NFLPA may attend and participate on the player’s behalf at its discretion.
For hearings regarding violations due to testing positive for a prohibited substance, the NFL Management Council has the burden of establishing the positive test result was obtained and collected in accordance with the Policy and its “Collection Procedures,” a process specifically defined and outlined within the Policy. In response, the player is able to challenge the Management Council’s finding by arguing the council deviated from the Collection Procedures in a manner that materially affected the accuracy or reliability of the test’s result.
Additionally, the Policy allows a player to claim innocence by arguing the positive test result was not due to his fault or negligence; however, player has the burden of establishing this defense, which cannot be satisfied by (1) merely denying that he intentionally took the banned substance; (2) claiming he received it from doctor, trainer, or other player; or (3) claiming that he took a mislabeled or contaminated product. Furthermore, objective evidence must be provided as support.
The Policy does provide for the conducting of discovery, requiring the league to provide the player with an indexed binder containing all correspondence and documentation regarding the player’s punishment within seven business days of receipt of punishment. Additionally, within four business days of the receipt of the indexed binder, the player can make written requests for additional information not originally included. Four days prior to the hearing, the player must submit his “Basis of Appeal,” which is a statement setting forth the specific ground of the appeal provided in the form of testimony or documentary evidence. Within three days of the hearing, the arbitrator issues a summary ruling, with a formal written opinion following a week after.
Once issued, the arbitrator’s decision constitutes “a full, final, and complete disposition of the appeal and will be binding on all parties.”
While appealing the ruling, Johnson played in the first four games of the season, during which the Eagles went 3-1. However, prior to the team’s Week 6 matchup against Washington, Johnson learned he had lost his appeal and would be suspended until Week 16.
Was the Hearing a Sham?
According to the Complaint, Johnson’s hearing contained “substantive and procedural defects” that rendered the arbitration utterly useless and ineffective. Specifically, Johnson states that the NFL and Management Council breached their obligations under the Policy, and that the NFLPA (1) violated its duty of fair representation under the National Labor Relations Act (NLRA); (2) violated the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA); and (3) deprived Johnson of his rights granted under the Policy and provided via federal labor law, explaining with great detail and specificity how the arbitration process failed him within the general allegations and ten causes of action contained within the Complaint. For example, Johnson contends:
- Prior to his arbitration hearing, he sought information directly related to his appeal, including information about the arbitration selection, the Collection Procedures, and the identity of the Chief Forensic Toxicologist – the person jointly appointed by Management Council and the NFLPA to oversee the lab and analyze test results – virtually all of which the Management Council refused to provide;
- The Policy requires a minimum of three arbitrators to hear the appeal; however, only two were provided;
- The Management Council exerted undue control and influence over the Independent Administrator – the person jointly appointed by Management Council and the NFLPA to administer tests and store information;
- Public disputes between Johnson and the NFLPA regarding representation – or the lack thereof – he was receiving led to NFLPA committing bad faith, arbitrary, and capricious actions to Johnson’s detriment; and
- The arbitrator overseeing his hearing was affiliated with the NFL and NFLPA based upon a prior relationship, and partial and corrupt in his ruling.
The most important relief sought within the Complaint is vacatur of the arbitrator’s ruling to uphold the league’s ten-game suspension. However, according to the Policy, the decision of the arbitrator is a final and complete decision binding on all parties. Furthermore, NFL Player Contract’s include a section regarding the “Integrity Of The Game”; within it is a clause that gives the Commissioner the authority to fine or suspend a player – after notice and hearing – if the player uses or provides other players with stimulants or performance-enhancing drugs, which is a right the Commissioner exercises via the Policy. As a result, once the arbitrator’s decision is made, the player – or NFL – has no other choice but to abide by the ruling.
In Johnson’s case, his second suspension placed him in “Step Two” under the Policy; in the event he tests positive for a banned substance a third time (i.e. “Step Three”), he will be automatically suspended for at least two seasons. Third-time offenders are able to seek reinstatement after twenty-four months, but reinstatement is subject to the Commissioner’s discretion. Vacating the arbitrator’s decision would render the suspension effectively void and Johnson wouldn’t be subject to “Step Three” of discipline in the event of a third positive test.
Another reason is – obviously – money. Prior to the start of the season, the Eagles signed Johnson to a five-year contract worth over $56 Million. However, not only did Johnson’s second suspension require him to forfeit all bonuses, including a $10 Million signing bonus, but all remaining guaranteed money was voided. In sum, Johnson’s suspension cost him a total of $35 Million in guaranteed money, and provided the Eagles the ability to release Johnson at any time without the team incurring any financial liability. However, if the arbitrator’s decision is vacated, it’s possible the original terms of the contract – and all guaranteed money carried along with it – could be restored.
The majority of causes of action within the Complaint seek vacatur of the arbitrator’s decision under either: (i) LMRA; or (ii) the FAA. The LMRA authorizes the federal court to enforce or vacate an arbitration awarded entered pursuant to a collective bargaining agreement, such as the Policy. In reviewing the arbitrator’s decisions, the federal court is not allowed to hear claims of factual or legal error, and is instead tasked to review the procedural soundness of the arbitrator’s decision. Under either the LMRA or the FAA, vacatur of the arbitrator’s decision is appropriate under the following occasions: (1) when the arbitrator goes outside the bounds of the collective bargaining agreement and is found to be dispensing his own brand of industrial justice; (2) where the arbitrator’s decision is based on extraneous issues; (3) when the decision goes against public policy; (4) when the decision is the result of fraud; or (5) when the arbitrator expresses a manifest disregard of the law.
Johnson asserts that each of the foregoing elements occurred, and therefore his ten-game suspension must be overturned. And based upon the allegation contained within the Complaint, one would imagine that Johnson has a meritorious case against the league. However, wary of affecting or hindering the freedom of contract and agreements collectively bargained between parties, courts are required to give substantial deference to an arbitrator’s decision, and are not free to overturn a decision simply because it would have reached a different result based on the same facts. As such, the prevailing party in arbitration is typically afforded the upper hand when it comes to challenging the award via the federal process.
Johnson’s case against the NFL, NFLPA, and NFL Management Council is not one likely to be resolved via settlement – there really isn’t any common ground to be found between the parties regarding the validity of the suspension and how it affects Johnson moving forward. This case has the potential to be a lengthy and costly affair for both parties, but in the end, the likelihood of the arbitrator’s ruling being affirmed is high, barring a smoking gun possessed by Johnson’s legal team that shows the arbitrator acted outside of his authority or was not qualified to hear his appeal.