Clear Statement Rules and the Integrity of Labor Arbitration

Under the common law, employment contracts are submitted to civil courts to resolve disputes over interpretation, breach, and remedies. As an alternative, parties in collective bargaining agreements, can agree to dispute resolution by an independent arbitrator, whose decision is reviewed deferentially by judges. Where employees or members of an association are governed by its internal rules, in contrast, they often agree contractually to submit internal disputes to an association officer or committee. In this circumstance, the common law governing private associations affords judicial review that is more limited than a civil dispute, but more searching than is the case for an impartial labor arbitrator. Recently, the National Football League and its players have gone to federal court in well-known disputes concerning player discipline. Although the collective bargaining agreement expressly removes these issues from impartial arbitration, recent cases have curiously been litigated as if the league commissioner is an independent arbitrator. This Article suggests that this is the wrong characterization of the league commissioner’s legal role. Treating the commissioner as if he were an arbitrator creates an anomaly: a unionized player’s grounds for judicial review are more narrowly defined than discipline of a non-union employee, even for the same behavior. The use of management personnel in lieu of an independent arbitrator also elevates the temptation for federal judges to stretch the deferential rules of review of labor arbitration developed for independent arbitrators. We discuss the baseline law of private association and why it is a superior standard of judicial review in player disciplinary cases, where there has been no review by an independent arbitrator