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NO. 11-831720
IN THE SUPREME COURT OF THE UNITED
STATES
AVON BARKSDALE, OMAR LITTLE, AND STRINGER BELL, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED PETITIONER,
V.
NATIONAL BASKETBALL ASSOCIATION
RESPONDENT.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR RESPONDENT
TEAM NO. 8 COUNSEL FOR RESPONDENT
ORAL ARGUMENT REQUESTED
1
ISSUES PRESENTED 1. United States jurisprudence promotes the private resolution of labor disputes. So long as the arbitrator’s decision meets the low standard of being at least “barely colorable,” the court has no authority to overrule that decision. Whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act. 2. Both the judicial and legislative branches have recognized the need for protections from antitrust scrutiny during the collective bargaining process in order to benefit all parties. The Non-Statutory Labor Exemption allows for both unions and lawyers to be shielded from antitrust liability during collective bargaining negotiations. So long as negotiations are occurring in good faith, regardless of agreement status, the parties enjoy protection. Whether a union may -- even for pure litigation purposes -- disclaim their status in the collective bargaining process in order to circumvent this protection, and subject employers to liability.
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TABLE OF CONTENTS ISSUES PRESENTED………………………………………………………………………….…….1 TABLE OF CONTENTS……………………………………………………………………….…….2 TABLE OF AUTHORITIES………………………………………………………………………….4 JURISDICTIONAL STATEMENT……………………………………………………………………7 STANDARD OF REVIEW……………………………………………………………………………8 STATEMENT OF THE CASE………………………………………………………………………...9 STATEMENT OF FACTS…………………………………………………………………………..10
1. The Western Conference Finals………………………………………………….……10
2. The investigation into the under inflated basketballs…………………………….….10
3. The Arbitral Hearing……………………………………………………………….….11
4. The Lockout…………………………………………………………………………….11 SUMMARY OF THE ARGUMENT………………………………………………………….............13 ARGUMENT…………………………………………………........................................................14
I. The 8th Circuit properly confirmed the arbitration award………………………….14
A. There is no justification for Barksdale’s belief that the maximum penalty for deflating basketballs would be a fine, because the Collective Bargaining Agreement repeatedly states the Commissioner has the authority to suspend a player who violates the integrity of the game.……………………...……….14
B. Barksdale’s claim of inadequate notice regarding the consequences of non-
cooperation with a league investigation is plainly refuted by Article VI Section 7, League Investigations, in the NBA Collective Bargaining Agreement.……………………………………………………………...……….17
C. There is no justification to vacate the arbitration award based on the
testimonial exclusion because the decision to exclude Mr. Daniels’ testimony fell within the discretion of the arbitrator and scope of the Collective Bargaining Agreement…………………………………….……………………17
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II. The 8th Circuit correctly enforced the NSLE and protected the NBA lockout from
antitrust scrutiny……………………………………………………………….……….21
A. Allowing the Players Association’s eleventh hour disclaimer to terminate the protections of the NSLE frustrates the purpose, precedent, and policy implications of the exemption.……………………………………...………….22
1. The history and purpose of the NSLE tend to show the protections
should be offered for a reasonable time following a collective bargaining agreement………………………………………….……….23
2. The 8th Circuit correctly upheld the lockout as it is within the bounds
of NSLE precedent…………………………………………..………….26
3. The practical implications of an eleventh hour disclaimer allowing antitrust scrutiny frustrate both the NSLE and federal labor law policy………………………………………………………………….....28
B. If a disclaimer of union status can terminate the collective bargaining
relationship, the NSLE must remain in place until the NLRB validates the disclaimer………………………………………………………………………..29
CONCLUSION AND PRAYER………………...……………………………………………………31 APPENDIX……………………………………………………………………...………………...32 CERTIFICATE OF COMPLIANCE……………………………………………………….………...33 CERTIFICATE OF SERVICE……………………………………………………………………....34
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TABLE OF AUTHORITIES Cases 187 Concourse Assocs. v. Fishman,
399 F.3d 524 (2nd Cir. 2005)…………………………………………………………….14 Brady v. NFL,
644 F.3d 661 (8th Cir. 2011).............................................................................................29 Bridgeman v. National Basketball Ass’n,
675 F. Supp. 960 (D.N.J. 1987)........................................................................................24
Brown v. Pro Football, Inc., 518 U.S. 231 (1996)..................................................................................25, 26, 27, 28, 29
Concrete v. Const. Laborers, 508 U.S. 602 (1993)………………………………………………………………………8
Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602 (1993)…………………………………………………………………..…16
Connell Constr. Co., Inc. v. Plumbers & Steamfitters Local No. 100, 421 U.S. 616 (1975)..............................................................................................23, 24, 28
Eastern Associated Coal Corp. v. Mine Workers,
531 U.S. 57 (2000)..............................................................................................................8
Int’l Bhd. of Elec. Workers. Local 97 v. Niagara Mohawk Power Corp., 143 F.3d 704 (2nd Cir. 1998)………………………………………………………...….16
LJL 33rd St. Assocs., LLC v. Pitcairn Props. Inc.,
725 F.3d 184 (2d Cir. 2013)..............................................................................................20 Mackey v. NFL,
543 F.2d 606 (8th Cir. 1976)..............................................................................................24 Major League Baseball Players Ass’n v. Garvey,
532 U.S. 504 (2001)............................................................................................................8
NBA v. Williams, 45 F.3d 684 (2nd Cir. 1995)..............................................................................................24
5
Ornelas v. United States, 517 U.S. 690 (1996)……………………………………………………………………….8
Powell v. National Football League, 930 F.2d 1293 (8th Cir. 1989)......................................................................................28, 29
Standard Oil Co. of New Jersey v. United States,
221 U.S. 1 (1911).........................................................................................................23, 25 Tempo Shain Corp. v. Bertek, Inc.,
120 F.3d 16 (2d Cir. N.Y. 1997).……………………………………….....…………19, 20 United States v. Cardoza-Hinojosa,
140 F.3d 610 (5th Cir. 1998)………………………………………………………………8
United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29 (U.S. 1987).………………………………………………………….…14, 18
United States v. Taketa,
923 F.2d 665 (9th Cir. 1991)……………………………………………………...……….8 United Steelworkers of America v. Enterprise Wheel & Car Corp.,
363 U.S. 593 (U.S. 1960).…………………………………………………………….…18 W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber,
461 U.S. 757 (U.S. 1983).……………………………………………………………18, 19
Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29, 32………………………………………………………………………..…15
Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 213 (2nd Cir. 2002)…………………………………………………...….16
Statutes Sherman Antitrust Act, 15 U.S.C. §§ 1, 2 (1982)………………………………………………..23 Clayton Act, 15 U.S.C. § 17 (1982)……………………………………………………………...23 Norris-LaGuardia Act, 29 U.S.C. §§ 52, 101 (1982)………………………………………….…23
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Other Authorities Commissioner Discipline, Article 46 of the NFL Collective Bargaining Agreement……………………………………………………………………………..…14, 15, 16 The Competitive Integrity Policy, Section A2 of the 2014 Edition of the Game Operations Policy Manual for Member Clubs……………………………………………………………….…..10, 15 Stephen L. Hayford, The Federal Arbitration Act: Key to Stabilizing and Strengthening the Law of Labor Arbitration, 21 Berkeley J. Emp. & Lab. L. 521 (2000)…………………………….....18 Nat’l Basketball League Collective Bargaining Agreement Art. VI §11(a), (b)………………...20
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JURISDICTIONAL STATEMENT This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). The district court has
jurisdiction over this case under 18 U.S.C. § 3231, and the appellate court had jurisdiction under
28 U.S.C. § 1291. No petitions for rehearing or hearing en banc were filed after the Eighth Court
of Appeals’ decision. The Petitioner filed for writ of certiorari, granted by this Court.
8
STANDARD OF REVIEW The legal standard of review for questions of law and mixed questions of law and fact is
de novo. Ornelas v. United States, 517 U.S. 690, 697 (1996); United States v. Cardoza-
Hinojosa, 140 F.3d 610, 613 (5th Cir. 1998); United States v. Taketa, 923 F.2d 665, 669 (9th Cir.
1991). Findings of fact are reviewed only for clear error and are not to be disturbed absent a
“definite and firm conviction that a mistake has been committed” by the lower court. Ornelas at
699; Concrete v. Const. Laborers, 508 U.S. 602 (1993). The issue regarding the arbitration
decision is slightly different, however, because this matter involves a claim arising under the
Collective Bargaining Agreement (“CBA”). Therefore, this court should look to the Labor
Management Relations Act (“LMRA”), specifically using section 301 for its analysis. Major
League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001).
The courts have very limited authority to review an arbitrator’s decision, even if it
believes the arbitrator made a grave error. Id. Shy of the arbitrator disregarding the agreement
in order to bestow his own brand of justice, decisions handed down from arbitration are
enforceable. Id. The arbitrator need only arguably construe or apply the contract and act within
the scope of his authority. Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62
(2000).
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STATEMENT OF THE CASE
1. This is a case rising out of a disputed arbitration ruling and a question of how long the
Non-Statutory Labor Exemption applies in the collective bargaining process. R. at 2-3.
2. The Honorable David Stern presided over the matter. R. at 1.
3. The trial was held at the United States District Court for the District of Tulania. R. at 1.
4. Judge Stern ruled for the Barksdale plaintiff on both issues. In so holding, Judge Stern
issued an order to vacate the arbitration award and allowed for antitrust scrutiny to be
imposed on the NBA’s lockout. R. at 17-18.
5. The NBA appealed the District Court’s opinion. R. at 19.
6. The 8th Circuit United States Court of Appeals heard the appeal. R. 19.
7. Justices Popovich delivered the opinion of the court, joined by Justices Kerr and Lue. R.
at 19.
8. The Court of Appeals decision can be found at: Docket No. 11-831720. R. at 19.
9. The Eighth Circuit reversed the District Court’s ruling on both issues, holding the
arbitration decision was to be upheld and affirmed, as well as the NBA lockout was to
continue to be protected by the Non-Statutory Labor Exemption. R. at 31.
10
STATEMENT OF FACTS This case arises out of two issues; the events that took place during the Western
Conference Finals, and the lockout which took place during the renegotiation of the Collective
Bargaining Agreement.
1. The Western Conference Finals.
The first matter is from an incident that took place during the 2016 Western Conference
Finals. R. at 2. After a blocked shot by Avon Barksdale of the Tune Squad, a referee noticed
that the basketball did not bounce as high as it should have and became suspicious. Id. In
response to this, the referee had an equipment staff member test the pressure of the ball, at which
point he discovered that the ball was under the minimum requirement by 1.5 psi. Id. This led to
11 of the Tune Squad’s basketballs being tested, all of which were under inflated. Id.
2. The investigation into the under inflated basketballs.
This incident prompted the National Basketball Association (hereinafter referred to as the
“NBA”) to launch an investigation into the under inflated game balls. Id. This investigation was
performed independently by Maurice Levy and his law firm, in addition to a second investigation
by Cedric Daniels, NBA General Counsel. Id. After all the necessary steps were taken, Levy
and Daniels announced that the evidence indicated that deliberate action was likely taken by the
Tune Squad personnel in violation of the League’s Playing Rules. Id. More specifically, the
Officials Locker Room attendant, Jim McNulty, and a Tune Squad equipment assistant in charge
of the basketballs, Bunk Moreland, were the perpetrators in this action. Id.
Any steps taken to tamper with the basketballs after they have been checked is clearly in
violation of The Game Operations Manual, which states: “Once the balls have left the locker
room, no one, including players, equipment managers, ball boys, and coaches, is allowed to alter
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the basketballs in any way.” The Competitive Integrity Policy, Section A2 of the 2014 Edition
of the Game Operations Policy Manual for Member Clubs (“Game Operations Manual”).
Furthermore, it was determined that the Petitioner, Avon Barksdale, was also likely involved in
the scandal. R. at 3. It was this determination about Barksdale’s involvement that led to him
being suspended without pay for the first four games of the following regular season. Id.
3. The Arbitral Hearing.
Later that month Commissioner Burrell conducted an arbitral hearing in response to
Barksdale appeal of the NBA’s decision. Id. The Commissioner upheld the NBA’s punishment
for two reasons. Id. First, because “Mr. Barksdale participated in a scheme to tamper with the
game balls after they had been approved by the game officials,” and second, because “he
willfully obstructed the investigation by, among other things, affirmatively arranging for
destruction of his cellphone, knowing that it contained potentially relevant information that had
been requested by the investigators.” Id.
4. The Lockout.
The second issue arising from this matter is a lockout instituted by the NBA. R. at 3. The
Players Association and the NBA were to negotiate a new Collective Bargaining Agreement
(“CBA”) as the present CBA was set to expire October 11, 2016 at 11:59 p.m. R. at 4. The NBA
and the Players Association were negotiating many issues, and in particular the personal conduct
policy to avoid the discipline situation which occurred with Mr. Barksdale from occurring again.
Id. The Players Association and the NBA were negotiating at the deadline in order to create a
new CBA. Id.
Prior to the completed negotiations for the new CBA, the Players Association poled
players to determine if they wanted to continue to be represented by the Players Association, a
12
union, if the negotiations failed. Id. A majority of the players agreed that if the negotiations
failed, the union should be disclaimed and discredited, and be reformed as a Professional
Association, and no longer represent the players in a union-like capacity. Id.
Eight hours prior to the deadline, the Players Association notified the NBA of their
disclaimed interest in representing the players, and notified the National Labor Relations Board
(“NLRB”) of their intention to terminate their status as a union. Id. That evening, the CBA
expired between the NBA and the Players Association. Id. The following day, the NBA
instituted a lockout of the players for the remainder of the negotiations. Id. As well, the
Barksdale plaintiffs filed suit against the NBA claiming antitrust violations. Id.
The plaintiffs alleged that the NBA was involved in an unlawful group boycott and price-
fixing agreement that violated the Sherman Antitrust Act. Id. The NBA filed a claim with the
NLRB to determine the validity of the disclaimer -- as the NBA believed the disclaimer to be a
litigation tactic on behalf of the Players Association to leverage antitrust liability into favorable
terms for the players. Id. And as a result, the disclaimer was a sham for this leverage. Id. The
NLRB has yet to reach a final determination of the Players Association disclaimer. Id.
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SUMMARY OF THE ARGUMENT
The 8th Circuit correctly reversed the decision of the District Court and held the
arbitration award should be confirmed, and the NBA’s lockout should be continued to be
protected by antitrust scrutiny by the NSLE.
The arbitration award was determined in accordance with the policies set forth in the
NBA’s Collective Bargaining Agreement. Commissioner Burrell’s authority over the matter is
expressly granted and he acted well within that authority, to come to a decision regarding the
facts of the case and suspend Mr. Barksdale in response to his findings. Mr. Barksdale’s attempts
to appeal this award are based on inadequate notice and improper exclusion of testimony.
Longstanding precedent and policy has afforded broad discretion to arbitrators and neither of
these claims fall within the narrow exceptions which allow for judicial intervention. Therefore,
the 8th Circuit was correct in reversing the District Court’s decision and confirming the
arbitration award.
The 8th Circuit properly decided the NBA’s lockout should be protected from antitrust
scrutiny by the NSLE. In doing so the court made two important considerations: (1) the eleventh
hour disclaimer by the Players Association frustrates the purpose, precedent, and policy of the
Non-Statutory Labor Exemption; and (2) the NLRB has yet to make a final ruling on the validity
of the disclaimer. The court correctly looked to the origins of the exemption, and previous court
applications of it -- particularly the Brown and Powell courts. As well, the 8th Circuit properly
applied the deference granted to the NLRB’s hearing process in union disclaimers.
This court should affirm the 8th Circuit’s ruling and hold the arbitration award to be
confirmed, and the NBA lockout to be protected from antitrust scrutiny.
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ARGUMENT
I. The 8th Circuit properly confirmed the arbitration award.
This issue comes down to the limited authority granted for judicial intervention in
arbitration awards. Given that Commissioner Burrell operated well within his capacity as the
arbitrator in this case to come to his ultimate determination, Mr. Barksdale has no basis under the
Labor Management Relation Act (“LMRA”), nor this Court’s precedent, to have this decision
vacated. As mentioned by the 8th Circuit, this matter is governed by the LMRA since it involves
a dispute under a collective bargaining agreement (“CBA”). R. at 19. The Federal Arbitration
Act (“FAA”) does not apply to LMRA-governed decisions, but the exception listed in 9 U.S.C.S.
§10 have been used by this Court as factors in determining whether or not to vacate an
arbitration award. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29 (U.S. 1987).
Under this standard the only question the District Court should have asked was whether
or not Commissioner Burrell was acting in accordance with the CBA, which Article 46 and the
Fine Schedule demonstrate he was doing. 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 527
(2nd Cir. 2005). Therefore, the Supreme Court should affirm the Court of Appeals decision to
confirm the arbitration award.
A. There is no justification for Mr. Barksdale’s belief that the maximum penalty for
deflating basketballs would be a fine, because the Collective Bargaining Agreement repeatedly states the Commissioner has the authority to suspend a player who violates the integrity of the game.
The District Court was correct in stating the “law of shop” provides that professional
athletes should receive advance notice of prohibited conduct and potential discipline associated
with that conduct. The District Court erred, however, in ruling that Mr. Barksdale did not
receive that requisite notice. The National Football League Personal Conduct Policy clearly
15
states that discipline may be imposed when conduct undermines or “puts at risk the integrity and
reputation of the NFL, NFL clubs, or NFL personnel.” The Competitive Integrity Policy,
Section A2 of the 2014 Edition of the Game Operations Policy Manual for Member Clubs
(“Game Operations Manual”). It then goes on to say that discipline will be based on the
conduct, and can include suspension. Id. The Petitioner disregarded this clause when it stated
that Mr. Barksdale should have received no more than a fine for a first-time offense according to
the 2015 fine schedule, relying on the line which refers to “other uniform/equipment violations.”
Applying this overbroad clause to this specific situation would be a mistake, because, as stated
above, the Commissioner has the authority to suspend a player when his conduct undermines the
integrity of the game. Commissioner Discipline, Article 46 of the NFL Collective Bargaining
Agreement.
Mr. Barksdale is calling on this Court to vacate an arbitration award, however, so long as
the arbitrator “offers even a barely colorable justification for the outcome reached,” his or her
decision must be upheld. Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29, 32.
Commissioner Burrell clearly explained the justification for his ruling. While the 2015 Fine
Schedule does not expressly state a penalty for deflating basketballs, Article 46 of the NFL CBA,
gives the Commissioner the authority to suspend a player when the circumstances warrant such
action. Id at section 1(d). Tampering with the basketball is a violation of the very object the
game is centered around and absent any express language in the Fine Schedule regarding an
appropriate penalty for this action, it falls within the authority of the Commissioner to determine
punishment. Id.
Furthermore, even if this Court applies the “Other Uniform/Equipment Violations” to the
facts of this case, the Player Policies clearly state that the fines listed are only minimum
16
punishments. Joint App. at 384. The relevant clause says, “other forms of discipline, including
higher fines and suspension may also be imposed, based on the circumstances of the particular
violation.” Joint App. at 389. Both Article 46 and the Fine Schedule make it clear that the
Commissioner was well within his right to suspend Mr. Barksdale for the first four games of the
following season. The plain language in these two clauses was also clear enough to put Mr.
Barksdale on notice of the possible consequences for his actions. These facts further prove
Commissioner Burrell’s decision was more than “barely colorable,” therefore removing any
authority for judicial intervention.
In addition to stating Mr. Barksdale did not receive notice that his actions could lead to
suspension, the District Court also incorrectly stated that he was only punished for mere
knowledge of the basketballs being underinflated. R. at 7. This is not representative of the
decision Commissioner Burrell made, as he found Mr. Barksdale guilty of actual involvement in
the scheme to tamper with the basketballs.
Commissioner Burrell, who is not only authorized, but actually encouraged, to do his
own investigation into the events, made the findings in question. Concrete Pipe & Prods. v.
Constr. Laborers Pension Trust, 508 U.S. 602 (see, “The arbitrator here does not function simply
as a reviewing body in the classic sense, for he is not only obliged to enquire into the soundness
of the sponsor’s determinations when they are challenged, but may receive new evidence in the
course of his review and adopts his own conclusions of fact.”). Moreover, once the arbitrator has
decided the facts of the case, the reviewing court is required to accept those facts. Westerbeke
Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 213 (2nd Cir. 2002); see also Int’l Bhd. of
Elec. Workers. Local 97 v. Niagara Mohawk Power Corp., 143 F.3d 704, 726 (2nd Cir. 1998).
In this particular case, Commissioner Burrell reviewed the information in the two investigation
17
reports, as well as conducted his own line of questioning, and determined that Mr. Barksdale’s
involvement exceeded mere awareness, expressly finding, “Mr. Barksdale participated in a
scheme to tamper with the game balls after they had been approved by the game officials”. R. at
3.
B. Barksdale’s claim of inadequate notice regarding the consequences of non-cooperation with a league investigation is plainly refuted by Article VI Section 7, League Investigations, in the NBA Collective Bargaining Agreement.
Mr. Barksdale also alleges he had no notice that destroying his cell phone could lead to
suspension, nor notice that destruction of his cell phone would be a matter discussed at the
hearing. These points are easily refutable. Article VI Section 7 of the NBA CBA states that:
“Players are required to cooperate with investigations of alleged player misconduct conducted by the NBA. Failure to so cooperate, in the absence of a reasonable apprehension of criminal prosecution, will subject the player to reasonable fines and/or suspensions imposed by the NBA.” Player Conduct, Article VI, Section 7(a) of the 2014 Edition of the National Basketball Players Association Collective Bargaining Agreement. Mr. Barksdale is also unable to support the claim that he was unaware his actions surrounding
the investigation would be discussed in the hearing, because the League sent him a disciplinary
letter clearly outlining every matter of significant interest, including that he was uncooperative
with the investigation and destroyed his cell phone.
Furthermore, the District Court erred in basing their decision off of the fact that “no
player suspension in NBA history has been sustained for an alleged failure to cooperate with - or
even allegedly obstructing - an NBA investigation.” R. at 6. This finding is not enough to
negate the express language of the NBA CBA, and arbitration precedent is not binding on these
decisions. For these reasons, this Court should find that Barksdale was on notice that non-
cooperation or obstruction of a league investigation could result in a suspension.
C. There is no justification to vacate the arbitration award based on the testimonial exclusion, because the decision to exclude Mr. Daniels’ testimony fell within the discretion of the arbitrator and scope of the Collective Bargaining Agreement.
18
Commissioner Burrell did not act outside the scope of his authority as detailed in the
CBA when he denied Mr. Barksdale’s motion to compel testimony from Mr. Cedric Daniels.
The review of this arbitration award is governed by the LMRA, which has been interpreted by
this Court as granting discretion to the arbitrator that shall not be infringed upon by judicial
intervention as long as the contractually designated arbitrator’s award “draws its essence from
the collective bargaining agreement”. United Steelworkers of America v. Enterprise Wheel &
Car Corp., 363 U.S. 593 (U.S. 1960). While there are some exceptions to this holding, none of
them bear on the facts of this matter. Additionally, the Supreme Court has found procedural
matters to fall within the discretion of the arbitrator. Misco, Inc., 484 U.S. 29. Since the
arbitration award does not expressly violate the terms of the CBA, contradict notions of
fundamental fairness and falls within the exclusive discretion of the designated arbitrator; the 8th
Circuit’s confirmation of the award should be upheld.
The Enterprise Wheel holding was reframed to establish that an arbitration award must
stand unless it can be unequivocally shown that the arbitrator exceeded contractual authority.
Stephen L. Hayford, The Federal Arbitration Act: Key to Stabilizing and Strengthening the Law
of Labor Arbitration, 21 Berkeley J. Emp. & Lab. L. 521 (2000). The Supreme Court later
added two exceptions to this broad authority. First, in United Paperworkers Int'l Union v. Misco,
Inc. this Court pointed to the FAA’s permissible vacatur exception in 9 U.S.C. §10(a)(3) for
guidance in a labor case. Misco, Inc., 484 U.S. 29. This standard establishes that an arbitration
award may be vacated if there has been misconduct in the form of refusal to hear pertinent and
material evidence. 9 U.S.C. §10(a)(3). While not binding, the Court found this language from
the FAA to be influential in its decision. Id. Second, in W.R. Grace & Co. v. Local Union 759
this Court said it would not uphold an arbitration award if the collective bargaining agreement
19
violated public policy. W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, 461
U.S. 757 (U.S. 1983).
The public policy exception is not at issue in this matter, but the FAA exception made up
a majority of the District Court’s argument in choosing to vacate the arbitration award,
frequently citing relevant precedent and a sense of fundamental unfairness. R. at 10. The
“fundamental fairness” language is used by the 2nd Circuit in Tempo Shain to provide a basis for
applying the FAA misconduct exception. Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16 (2d
Cir. N.Y. 1997). While neither the FAA exceptions nor relevant precedent are binding on
LMRA-governed disputes, there is a circuit split on the applicability of a fundamental fairness
standard in these matters. R. at 27. Assuming this Court adopts the fundamental fairness
standard, there is still not basis to vacate the arbitration award. Materiality and pertinence of the
evidence at issue can be determined by its probative value in the matter. The District Court
makes two statements to assert the value of this evidence: First, this testimony was material
because there was no other witness who was “competent to address the substantive core of the
claim”; and second, Mr. Daniels’ testimony would have value in showing the investigation was
not truly independent. R. at 10-11.
First, the District Court pointed to Tempo Shain as a comparable illustration of an unfair
exclusion of testimony because the witness in question was the only individual competent to
address the substantive core of the claim. This comparison was an error since Tempo Shain dealt
with the testimony of a witness who had exclusive first-hand knowledge of oral communications,
which led to the resulting dispute. Tempo Shain, 120 F.3d 16. The written correspondence by the
witness in this case was not representative of the disputed matter and could not fairly be used in
place of testimony since it did not pertain to the alleged fraudulent inducement. Id.
20
This bears no resemblance to Mr. Daniels’ involvement in the investigation of Mr.
Barksdale. Mr. Daniels did not possess any unique substantive knowledge that could not be
acquired through the Levy Report, the testimony of Mr. Levy or the testimony of Mr. Rawls.
Mr. Daniels’ role in the investigation is listed in the record as merely providing access to Mr.
Levy and signing off on his findings. R. at 3. He did not provide any exclusive substantive
information as seen in Tempo Shain and the information he did possess strictly related to the
investigative findings, which were not contested by Mr. Barksdale in his appeal. Id. at 21.
Second, the District Court found Mr. Daniels’ testimony to be probative only in the
context of determining if the investigation was truly independent. However, the CBA does not
include language requiring an independent investigation, so the probative value of this testimony
is truly minimal, falling well within the discretion of the arbitrator to exclude. Nat’l Basketball
League Collective Bargaining Agreement Art. VI §11(a), (b). The District Court said that Mr.
Barksdale did not have access to a fair hearing because, “[h]e was foreclosed from exploring
whether the Daniels/Levy Investigation was truly ‘independent,’ and how and why the NBA
General Counsel came to edit a supposedly independent investigation report.” R. at 10. Since
there is no requirement in the CBA necessitating independence, there is again no basis in this
exclusion to vacate the arbitration award.
Lastly, the 8th Circuit correctly applied this Court’s standard from Misco saying, “when
the subject matter of a dispute is arbitrable, ‘procedural’ questions which grow out of the dispute
and bear on its final disposition are to be left to the arbitrator.” Misco, Inc., 484 U.S. 29. The 8th
Circuit went on to clarify that arbitrators possess “substantial discretion” to decide on procedural
matters, such as the admission and exclusion of evidence. R. at 27 (citing LJL 33rd St. Assocs.,
LLC v. Pitcairn Props. Inc., 725 F.3d 184, 194-95 (2d Cir. 2013)).
21
When Commissioner Burrell denied the motion to compel Mr. Daniels’ testimony he was
operating under the language of the CBA, which says the exclusion of testimony should be left to
the, “reasonable discretion of the hearing officer to determine the scope of the presentations and,
where appropriate, to compel the testimony of any witnesses whose testimony is necessary for a
hearing to be fair.” R. at 3. The Commissioner operated within the scope of his authority to deny
this motion and even if this authority is in question, the Commissioner said he would revisit the
exclusion upon a showing that Mr. Daniels’ testimony would be necessary in order to conduct a
fair hearing. However, the record clearly indicates that Mr. Barksdale did not make any
additional efforts to compel this testimony until the appeal of the arbitration award. Id. at 27.
Mr. Barksdale was clearly provided with an opportunity to compel this testimony at later stages
of the hearing, but chose to forego this opportunity. Since the heart of the District Court’s
analysis of the testimonial exclusion is an alleged violation of fundamental fairness it is
reasonable to believe that all avenues would have been pursued by Mr. Barksdale if he perceived
his hearing to be fundamentally unfair. Therefore, the 8th Circuit was correct in confirming the
arbitration award and this finding should be upheld.
II. The 8th Circuit correctly enforced the NSLE and protected the NBA lockout from antitrust scrutiny.
The 8th Circuit properly overturned the ruling of the District Court and held that the
lockout instituted by the NBA and its owners is shielded from antitrust scrutiny by the non-
statutory labor exemption (“NSLE” or “exemption”). In doing so, the court recognized that
allowing the NBA Players Association (“Players Association”) to disclaim their representative
interest in the players during the eleventh hour of negotiations to wield antitrust liability as
leverage against the NBA frustrates the purpose and spirit of the exemption. The 8th Circuit
correctly held that the purpose, precedent, and policy implications of the exemption determined
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the disclaimer did not flip the liability switch on the NBA overnight – their lockout is still to be
protected by the NSLE.
The court also recognized the problem with determining the merits of such a disclaimer.
Even if a disclaimer delineates when antitrust scrutiny is to be imposed, it is difficult to
determine whether the disclaimer is made in good faith and not solely for the purposes of
advancing a litigation agenda. The National Labor Relations Board (“NLRB”) is better suited for
making such determinations, and the courts tend to respect such conclusions by the NLRB. In the
present case, the NLRB has yet to make a determination, and thus it is unclear if the union still
exists. As such, the 8th Circuit properly concluded to continue the NSLE and the protections it
offers until a final decision is made by the appropriate authorities.
This Court should uphold and affirm the ruling and reasoning of the 8th Circuit. Allowing
the exemption to protect the NBA falls in line with the purpose, precedent, and policy
implications of the NSLE. Additionally, if a disclaimer is the bright line for the termination of
the NSLE, it is prudent for the court to wait until a proper determination is made by NLRB on
the validity of the disclaimer.
A. Allowing the Players Association’s eleventh hour disclaimer to terminate the protections of the NSLE frustrates the purpose, precedent, and policy implications of the exemption.
The 8th Circuit correctly held the lockout to be protected from antitrust liability by the
non-statutory labor exemption, despite the disclaimer of representation by the Players
Association. R. at 31. In making its ruling, the court appropriately relied on the history and
purpose of the NSLE, while recognizing the bounds of the exemption articulated by the Brown
and Powell courts, and considering practical implications of allowing a disclaimer to vitiate
judicially enforced protections in a matter of hours. This Court should follow suit and find a
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simple disclaimer of representation is not substantial enough to eliminate the protections offered
by the NSLE due to the purpose, precedent and policy of the exemption.
1. The history and purpose of the NSLE tend to show the protections should be offered for a reasonable time following a collective bargaining agreement.
The Sherman Antitrust Act was aimed at preventing undue restrictions on the free flow of
goods and competition in the American marketplace. However, the language of the Sherman Act
is broad and all-encompassing. As a result, many minor restrictions of trade would be a per se
violation of the statute, which imposes liability for any contract or agreement that would be
considered in the “restraint of trade.” 15 U.S.C. §§ 1, 2 (1982). Congress recognized the broad
implications of such a rule, and attempted to balance the fundamental policy of free-market
competition with federal labor laws and practices that allow for agreements between certain
parties in the employment marketplace. Consequently, Congress passed the Clayton Act and the
Norris-LaGuardia Act, which allowed for certain exemptions for federal labor laws. 15 U.S.C. §
17 (1982); 29 U.S.C. §§ 52, 101 (1982). However, these statutes did not specifically exempt the
collective bargaining process between multi-employer entities and unions.
The United States Supreme Court also recognized the policy of balancing competition
and federal labor practices. See Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 65
(1911)(finding anticompetitive acts are tested by “the rule of reason, in light of the principles of
law and the public policy which the act embodies.”). The Court interpreted the statutory
exemption and the policy of the Clayton Act and the Norris-LaGuardia Act to extend non-
statutorily to the collective bargaining process. Connell Constr. Co., Inc. v. Plumbers &
Steamfitters Local No. 100, 421 U.S. 616, 622 (1975). This “non-statutory labor exemption”
allowed for employers and unions to negotiate and contract without liability on certain terms,
which would otherwise be considered a restraint of trade under the Sherman Act.
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Without this exemption, courts have recognized that the collective bargaining process
would not be a fruitful venture since negotiated terms could not be implemented due to constant
antitrust violations. Id. Courts first recognized this NSLE to apply in multi-employer and union
negotiation scenarios – such as professional sports – for the NFL in the Mackey decision. Mackey
v. NFL, 543 F.2d 606 (8th Cir. 1976). This precedent has been reinforced in many cases
addressing most other major professional sports – more specifically for basketball and the NBA.
NBA v. Williams, 45 F.3d 684 (2nd Cir. 1995).
The collective bargaining process is generally a fruitful venture for both the employers
and the union – as each party gets to negotiate for their most favorable terms. But, as recognized
by the court in Connell Construction, without the NSLE much of the collective bargaining
process would be subject to antitrust liability. Connell Constr. Co., 421 U.S. at 622. Thus the
protection offered by the NSLE creates a shield for employers from liability at the negotiating
table to offset the leverage afforded to employees who are able to bargain as a unit. Generally,
courts have recognized this protection is available so long as the parties are negotiating in good
faith. Bridgeman v. National Basketball Ass’n, 675 F. Supp. 960 (D.N.J. 1987). In fact, the
Bridgeman court articulated the only logical application of the exemption was to use its
protections so long as the negotiations were ongoing in good faith:
“It would be anomalous for such restraints to enjoy antitrust immunity during the entirety of the agreement, to lose that immunity automatically upon the expiration of that agreement, regardless of the status of negotiations for a new agreement – and then to regain immunity upon the entry of a new agreement.” Id. at 965.
It is clear the purpose and spirit of this judicially created protection to allow ample time for
parties to reach favorable terms, and further the federal labor policy of negotiating in good faith.
It is not, as Mr. Barksdale suggests, a protection that may be eliminated in one afternoon due to
the unilateral actions of one party.
25
In the present case, Mr. Barksdale alleges the disclaimer of representation by the union
eliminates this long-standing judicial protection for the NBA. R. at 4. As a result, the owners are
subject to antitrust liability for doing something that is otherwise protected in the collective
bargaining process. See Brown v. Pro Football, Inc., 518 U.S. 231 (1996) (finding a lockout to
be an appropriate response by the NFL, as it directly relates to the collective bargaining process).
Mere hours before Mr. Barksdale filed the complaint, the parties were at the negotiating table. R.
at 4. Rather than enjoy the protections offered by the NSLE to reach a mutual agreement, the
Petitioner attempts to leverage their position into potential liability for the NBA. This clearly
contravenes the purpose of the NSLE. Courts created the exemption in an attempt to enforce the
policy enumerated by Congress in the Clayton Act and the Norris-LaGuardia Act: The collective
bargaining process needs ample time and protection to benefit all parties and further the aims of
federal labor policy. This exemption was not created in order to lure one party to potential
liability under the guise of mutual agreement, only to have the unilateral action of the other party
instantly create massive antitrust liability.
Mr. Barksdale is attempting to directly contravene the Supreme Court’s understanding of
the balance between competition and federal labor practices when implementing the NSLE.
Instead, Mr. Barksdale is attempting to unilaterally impose liability overnight in a process that is
protected to give enough time for meaningful negotiations. In Standard Oil, this Court stated that
when applying the NSLE is guided by the “rule of reason, in light of principles of law and the
public policy the act embodies.” Standard Oil Co. of New Jersey, 221 U.S. at 65. The rule of
reason stands here to allow the NSLE to continue to shield the NBA from antitrust scrutiny, as
the NBA was continuing to negotiate within the law and in good faith – the exact reason the
protections exist. As a result, this court should uphold the ruling of the 8th Circuit, finding the
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NBA is still privileged with the protections of the NSLE, and thus shielded from antitrust
scrutiny.
2. The 8th Circuit correctly upheld the lockout as it is within the bounds of NSLE precedent.
In determining whether the disclaimer of representation eliminated the NSLE, the 8th
Circuit correctly found the lockout was well within the scope of the NSLE as determined by
precedent – in particular the Brown and Powell cases. Although the outer bounds of the
exemption have yet to be explicitly defined, the United States Supreme Court has set out some
general principles that aid in the current analysis. Under these principles, it is clear the NBA’s
lockout is clearly still protected from antitrust scrutiny by the NSLE. As a result, this court
should uphold the ruling of the 8th Circuit, and continue to use the NSLE to shield the NBA from
antitrust scrutiny.
In Brown v. Pro Football, Inc., the United States Supreme Court upheld the lockout
instituted by the NFL during the collective bargaining process. Justice Breyer and the majority
recognized the NSLE protections helped fulfill the national policy of free and private collective
bargaining. Brown, 518 U.S. 231. In recognizing this Justice Breyer wrote:
As a matter of logic, it would be difficult, if not impossible, to require groups of employees to bargain together, but at the same time forbid them to make among themselves or with each other any of the competition-restricting agreements potentially necessary to make the process work. Thus, the implicit exemption recognizes that, to give effect to Federal labor law and policies and to allow meaningful collective bargaining to take place, some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions. Id. at 237.
However, despite this favorable recognition of the NSLE in the collective bargaining
process, the Brown court had to determine how long the exemption lasted after an “impasse” was
reached in the negotiations. The Court considered four different ways to consider the impasse –
including a lockout until an agreement was met. There was no attempt to determine which of the
27
four methods was the best method, however, the Court found that because a lockout was an
“action that grew out of and was directly related to the collective bargaining process” the NFL
was to be “immune from scrutiny.” Id. at 250. Additionally, the Court held the exemption from
such scrutiny did not “expire until a point sufficiently distant in time and circumstances from the
collective bargaining process that a rule permitting antitrust intervention would not interfere with
that process.” Id.
In the present matter, the lockout clearly grew out of and was directly related to the
collective bargaining process. Because this lockout was much like the lockout upheld in Brown,
the lockout should be shielded from antitrust scrutiny. However, Barksdale alleges that because
the union disclaimed its representative interest in the players the evening before the lockout,
while still at the negotiating table, the collective bargaining relationship was terminated and the
lockout is a per se violation of antitrust law. But in making this assertion, Barksdale ignores the
two guiding principles detailed by the Supreme Court in Brown. First, the lockout has clearly
stemmed from the bargaining process, and the NBA was attempting to continue negotiations by
instituting a lockout, which had been previously recognized as a viable option during this
process. And second, the NSLE is supposed to be in effect until a “point sufficiently distant in
time” so that exposing the parties to antitrust scrutiny would not interfere with the negotiations.
Id. In the present case, the parties were at the negotiating table when the Players Association
disclaimed their interest in representing the players. R. at 4. The day after the expiration of the
collective bargaining agreement is most certainly a point “sufficiently distant in time.”
Barksdale argues that in Brown, it was determined that the dissolution of a union is the
bright line for when the negotiations have sufficiently broken down so as to impose antitrust
liability. Id. However, this was not the holding of the court – but merely a suggestion of a
28
potential outer boundary in dicta. Rather, the Court affirmatively held it would be
“inappropriate” to draw such a line “without the detailed views of the Board [NLRB].” Id. Thus,
while the court considers such a boundary a possibility, it is not the test to be applied here –
particularly without input from the NLRB.
Barksdale also cites the 8th Circuit’s ruling in Powell as determinative of the end of the
collective bargaining relationship. The Powell court found the exemption does not last
indefinitely, but does continue to exist beyond “impasse” so long as the “bargaining relationship
is ongoing.” Powell v. National Football League, 930 F.2d 1293 (8th Cir. 1989). In making this
determination, the Powell Court cited the Connell Construction decision stating “national labor
policy should sometimes override antitrust policy.” Connell Constr., 421 U.S. at 622. However,
the court found that a decertification approved by the NLRB could end the bargaining
relationship, as the players had given up their rights as a collective unit. Therefore, the
exemption would end when the union is properly decertified. Barksdale fails to establish a proper
decertification in the present matter – there is currently a dispute in front of the NLRB in order to
determine the validity of the disclaimer. R. at 4. As a result, this Court should follow the
reasoning, not the outcome, of the Powell court – as at the time of the complaint, the bargaining
relationship was ongoing and no proper decertification had been determined by the NLRB.
Based on the precedent of the Supreme Court in Brown, and the reasoning behind the 8th
Circuit’s ruling in Powell, this Court should find the NBA lockout was well within the bounds of
established precedent and should be protected from antitrust scrutiny. As a result, this Court
should affirm the ruling of the 8th Circuit and hold the NSLE still applies to the NBA.
3. The practical implications of an eleventh hour disclaimer allowing antitrust scrutiny frustrate both the NSLE and federal labor law policy.
29
The 8th Circuit correctly held that the use of a “disclaimer” weapon is an impractical and
upsets the purpose of the NSLE in federal labor policy. If precedent is set where all Players
Unions, or any union involved in a collective bargaining process, may wield substantial antitrust
liability solely by disclaiming or decertification of the union, it will become common practice to
do so. And as a result, the employers will always be forced to negotiate in the face of expensive
litigation if the union’s demands are not met. The constant threat of disclaimer is an unworkable
model in which one side has all of the leverage in what is supposed to be an even handed
negotiation.
Most recently, the disclaimer tactic was used in the Brady v. NFL hearing. However, the
court sidestepped the NSLE question and founded their decision on Norris-LaGuardia Act
grounds instead. Brady v. NFL, 644 F.3d 661, 680 (8th Cir. 2011). By doing so, the court missed
the opportunity to definitively state federal labor policy and the purpose of the NSLE within such
policy. This court has the ability to state that the purpose of the NSLE is to create ample time to
complete good faith negotiations. A party claiming to disclaim status in order to terminate the
collective bargaining relationship – especially without an NLRB ruling -- is not a workable
model, and is clearly not a good faith effort at negotiations. As a result, this court should affirm
the ruling of the 8th Circuit and find the lockout is protected by the NSLE.
B. If a disclaimer of union status can terminate the collective bargaining relationship, the NSLE must remain in place until the NLRB validates the disclaimer.
The 8th Circuit correctly decided that even if a disclaimer terminated the collective
bargaining relationship, the court should wait until a final determination is made by the NLRB.
As recognized in Brown, the Supreme Court generally defers to the decision making of the
NLRB in determining the validity of a disclaimer. Brown, 518 U.S. at 250. As well, the court
30
recognized that simply because the word “disclaimer” was used, the NLRB is not compelled in
any way to find the disclaimer of representative status valid. Id. Furthermore, the court in Powell
found that “as long as there is a possibility of proceedings [that may be commenced] before the
NLRB” that the exemption under the NSLE should still apply. Powell, 930 F.2d at 1303.
Similar to the present matter, the NBA has a current dispute in front of the NLRB relating
to unfair business practices and the validity of the disclaimer of representative status by the
Players Association. Even if this court was to determine that a valid disclaimer by the union was
to terminate the collective bargaining relationship, and thus the protections provided by the
NSLE -- it should wait until the NLRB concludes its hearing on the validity of the disclaimer.
Thus, this court should follow suit of both the Brown and Powell courts, and keep the exemption
in place and defer to the expertise of the NLRB to determine whether the disclaimer was made in
good faith, or was merely a tactic to leverage antitrust liability. This court should affirm the
holding of the 8th Circuit and determine the lockout is still protected from antitrust scrutiny, at
least until the NLRB reaches a conclusion regarding the disclaimer of representative capacity of
the Players Association.
Because the eleventh hour disclaimer contravenes the purpose, precedent, and policy of
the NSLE, and the NLRB has yet to reach a determination regarding the disclaimer -- this court
should affirm the holding of the 8th Circuit Court of Appeals and continue to protect the NBA
lockout from antitrust scrutiny.
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PRAYER Because Barksdale did receive sufficient notice that suspension could be a consequence
of his actions, and because Commissioner Burrell was acting well within the scope of his
authority, Respondent respectfully request that this court affirm the 8th Circuit Court of Appeals
and confirm the arbitration award. Furthermore because the disclaimer of the Players
Association frustrates the purpose, precedent, and policy of the NSLE, and the NLRB has yet to
make a decision on the matter -- this court should affirm the 8th Circuit Court of Appeals and
allow the NBA lockout to continue to be shielded from antitrust scrutiny.
Respectfully Submitted,
/s/ Team 8 /s/
Team 8
ATTORNEY FOR RESPONDENT
32
APPENDIX
33
CERTIFICATE OF COMPLIANCE
Pursuant to “Section Six: Briefs” in the Mardi Gras Invitational Competition Rules
Packet, I hereby certify that this Respondent’s Brief contains 7,482 words. This is a computer-
generated document created in Microsoft Word, using 12-point typeface for all text. In making
this certificate of compliance, I am relying on the word count provided by the software used to
prepare the document.
Respectfully Submitted,
/s/ Team 8 /s/
Team 8
ATTORNEY FOR RESPONDENT
34
CERTIFICATE OF SERVICE
I certify that a copy of this Brief for Respondent was served on Petitioner Avon
Barksdale, through counsel of record, Elizabeth Evans, at Tulane Law School, Weinmann Hall
265, 6329 Freret Street, New Orleans, Louisiana 70118, by U.S. mail on Friday, January 13,
2017.
Respectfully Submitted,
/s/ Team 8 /s/
Team 8
ATTORNEY FOR RESPONDENT
