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Monday, August 28, 2017
NFL's Evidence Exclusion May Pave Way for Elliott Victory in Federal Court on "Fundamental Fairness" Grounds

As noted legal philosopher, Yogi Berra, once famously remarked: "It's deja vu all over again. More than two years after the National Football League handed Tom Brady a decisive lower court victory in Deflategate for denying his legal team access to crucial evidence--only to be bailed out later by a federal appeals court--the NFL is back to its old ways. This time, and in an even more damaging way, the NFL has thrown another evidentiary roadblock in the path of an NFL player attempting to challenge a league suspension. And this one could come back to haunt the league in court (I believe it will. More on that shortly). Late last week, Harold Henderson (the league-appointed arbitrator presiding over Ezekiel Elliott's arbitration) refused a request from Elliott's legal team to make Elliott's accuser, Tiffany Thompson, available for cross-examination at the arbitration hearing. The NFL of course, as a private entity, has no legal authority to compel Ms. Thompson to appear as a witness. The NFL is not a court of law (although sometimes it pretends to be), and, therefore, has no subpoena power over persons not affiliated with the NFL.

But the NFL went one fatal step further--it also denied Elliott's team access to the notes from the league's multiple interviews with Ms. Thompson. These interviews (and the notes therefrom) played a central role in the league's decision to suspend Elliott for six-games under the NFL's personal conduct policy. The NFL's Investigative Report reflected interviews with "more than a dozen witnesses, including Ms. Thompson." (NFL Letter to Elliott dated August 11, 2017). To be sure, the NFL's decision to suspend Elliott for six games was at least based, in part, on the league investigators' numerous interviews with Ms. Thompson. At least six such interviews were conducted.  So while the league could not have legally compelled Ms. Thompson to appear as a witness, the interview notes are the next best evidence (short of live testimony and cross-examination). Part of the NFLPA's strategy at the arbitration hearing will be to attack Ms. Thompson's credibility by challenging the veracity of her statements to the NFL and police investigators. With no witness--and now no notes--the NFLPA has been dealt a serious setback in its ability to successfully pursue that strategy.

One of the basic tenets of our legal adversary system is the ability to confront and cross-examine accusing witnesses. The right to confront, cross-examine and impeach adverse witnesses is one of the most fundamental rights sought to be protected by the Sixth Amendment (in criminal trials) and the Seventh Amendment (in civil jury trials). The central function of this right is to protect the accused from the use of ex parte statements as evidence against him. Accordingly, the 'Confrontation Clause' prohibits the admission of testimonial statements made by witnesses outside of court, unless the witnesses are unavailable and the defendant had a previous opportunity to cross-examine him or her.

But arbitration is a different animal. It is a less formal process than a court case, and the rules of evidence are not rigidly applied. As numerous federal decisions have observed, "in making evidentiary determinations, an arbitrator need not follow all the niceties observed by the federal courts. The arbitrator need only grant the parties a fundamentally fair hearing." However, while there may not be an 'absolute' right to confront and cross-examine accusing witnesses in an arbitration proceeding, there is another vehicle for raising this argument under a different guise: the doctrine of "fundamental fairness." Under Section 10(a)(3) of the Federal Arbitration Act ("FAA), federal courts can vacate an arbitration award where "the arbitrators were guilty of [any] misconduct . . . by which the rights of any party have been prejudiced, thereby amount[ing] to a denial of [a party's right] to fundamental fairness of the arbitration proceeding." Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 19-20 (2d Cir. 1997). Refusing to hear evidence "pertinent and material to the controversy" is one of the classic grounds for challenging an arbitration ruling on "fundamental fairness" grounds.

In NFL vs. Brady, for example, U.S. District Judge Richard Berman (of the Southern District of New York) held that Commissioner  Goodell's arbitration award upholding Tom Brady's four-game suspension was defective because the Commissioner deprived Brady of "fundamental fairness" by denying him the opportunity to cross-examine NFL Executive Vice President and General Counsel Jeff Pash, who was designated by the league as the "co-lead investigator" along with Ted Wells (the author of the infamous "Wells Report"). As recounted in Judge Berman's opinion, Pash "was allowed to review a draft of the Wells Report and to provide Paul, Weiss [the law firm which employed Wells] with written comments  or edits prior to the Report's release to the public." By denying Brady the opportunity to cross-examine Pash at the arbitration hearing, Judge Berman identified two distinct ways in which the NFL "prejudiced" Brady's right to a fundamentally fair hearing: (1) he was "foreclosed from exploring, among other things, whether the Pash/Wells investigation was truly 'independent,' and how and why the NFL's General Counsel came to edit a supposedly independent investigation report"; and (2) "there was no other witness, apart from Pash, who was as 'competent to address the substantive core of the claim.'" Judge Berman observed that as "co-lead investigator and senior executive with the NFL, Pash was in the best position to testify about the NFL's degree of involvement in, and potential shaping of, a heralded 'independent' investigation." Thus, as Judge Berman concluded, "[t]he issues known to Pash constituted 'evidence plainly pertinent and material to the controversy."

Unfortunately, the Second Circuit reversed Judge Berman on this issue, characterizing Pash's role in the investigation as "collateral" to the issues at arbitration, and, therefore, not material or important enough to constitute a violation of fundamental fairness. According to Judge Barrington Parker (the author of the Second Circuit's majority opinion), "[t]he insights Pash might have had and the role he might have played in the preparation of the Wells Report were concerns that were collateral to the issues arbitration. The CBA does not require an independent investigation, and nothing would have prohibited the Commissioner from using an in-house team to conduct the investigation." The Second Circuit also reversed Judge Berman's second basis for finding that the arbitration lacked "fundamental fairness": the NFL's refusal to provide Brady with access to the Paul, Weiss investigative files. On that point, the Second Circuit agreed with the NFL's argument that the CBA does not require the exchange of such notes, pointing to the Article 46 provision specifying that the parties need only "exchange copies of any exhibits upon which they intend to rely," which the court interpreted as not requiring "extensive discovery."

Those skeptical of Ezekiel Elliott's chances in federal court have consistently pointed to the Second Circuit's decision in Brady, and to a lesser extent, the Eighth Circuit's decision in Peterson, as granting Commissioner Goodell somewhat of a carte blanche to do as he pleases without judicial interference. I'm not buying into that. It wasn't too long ago that the NFL was on a horrendous losing streak in court cases. Its record in recent legal controversies (e.g. 'Bountygate,' Ray Rice. and the lower court decisions in Brady and Peterson) was abysmal until the two recent federal appeals court decisions turned the tide. But sometimes the pendulum swings back the other way. First, there is no guarantee that the Elliott case will even be litigated in the Southern District of New York. As I have speculated (and even urged), the NFLPA may try to win the proverbial 'race to the courthouse' by filing a preemptive lawsuit in a Texas or Ohio federal court before Henderson issues his arbitration ruling. Given the NFL's past conduct in Deflategate--where it controlled the timing of the release of the arbitration decision and then promptly filed a lawsuit in New York federal court before the NFLPA could react--I would not be surprised if the NFLPA tried to get the jump on the NFL by filing suit in advance of a Henderson ruling. Such a tactic--no worse than what the NFL did in Deflategate--would allow the NFLPA to secure its preferred forum (e.g., Texas or Ohio) under the "first-to-file" rule for determining the priority of competing federal lawsuits.

But even if forced to litigate in New York, I'm not convinced that the lower federal court or the Second Circuit would adhere to the Deflategate decision on the question of "fundamental fairness." The Second Circuit did not absolutely foreclose the use of "fundamental fairness" as a grounds for vacatur in labor arbitration cases, although it has not expressly recognized it either. Nonetheless, there is a world of difference between excluding a "collateral" witness like Jeff Pash (who was not a central character in the Deflategate saga) and denying an accused access to an undeniably critical witness such as Tiffany Thompson, whose statements to the NFL provided the foundation for the discipline imposed against him. While she obviously can't be compelled to testify (as I have noted, the NFL lacks that power), the notes of her extensive interviews with the NFL are nonetheless important pieces of evidence, certainly much more so than the Wells investigative files in Deflategate. The exclusion of these notes, in my view, is far more harmful to Elliott's case (and the overall fairness of the arbitration) than was the denial of the investigative files to Brady.  Like night and day. The Second Circuit might even agree.

But even looking at cases beyond Deflategate, federal courts reviewing arbitration awards often look to whether the party challenging the award had a full and fair opportunity to question and cross-examine his accusers. See, e.g,  Finelli v. SW Airlines Co., 2002 WL 1610585 (N.D. Tex. July 19, 2002). The Finelli decision could be especially helpful to Elliott if he files suit in the Northern District of Texas. In confirming a labor arbitration award, the Texas federal court held that the terminated flight attendant "was afforded a full and fair opportunity at [the] arbitration hearing to question and cross-examine persons who accused him of violating his former employer's sexual harassment policy. The court further noted that the terminated employee "was provided with [the] investigator's interview notes, which could have been used to point out any inconsistencies between witness' testimony and their original statements." Elliott does not have anywhere near the same protections--no cross-examination and no notes--as the terminated employee did in Finelli.

Given the obvious importance of Ms. Thompson's testimony, the NFL runs the risk of seeing its two-case winning streak come to an end, whether it's in Texas or New York. In this respect, Elliott's case can be seen as much stronger than Brady's.

-- Daniel Wallach

Wednesday, August 23, 2017
Baseball announcers really do not understand the Infield Fly Rule

I am watching the ESPN broadcast of Angels-Rangers and am stunned by how badly the announcing crew does not understand the Infield Fly Rule. In the bottom of the fourth, the Angels had first-and-second/one-out when Albert Pujols hit a pop-up halfway between home and the mound. The catcher could not play the ball which drifted away from him and fell to the ground. The catcher threw to third for what he thought was a forceout, but the third-baseman did not tag the runner. But the home plate umpire declared that runner safe, because the first-base umpire had invoked infield fly, removing the force on the runners. At the end of the day, the Angels had second-and-third/two-out.

But the announcing crew started talking about the play and the IFR and it was somewhat amazing to hear them be so wrong about:

• They complained that the umpire had not called it until the ball was about on the ground. That was factually wrong, as a wide-angle replay from the left side clearly showed the first-base ump raising his fist when the ball was at its highest point or had just started to descend.
• They complained that the umpire did not invoke as soon as the ball was in the air. But the ump cannot call it as soon as it is in the air, because he has to determine that it is playable with ordinary effort. Sometimes that means waiting for the ball to almost come down to the ground. At a minimum, it means waiting for the ball to reach its apex and see whether someone can catch it with ordinary effort. On that point, I am not sure the call was correct, as the ball was drifting away from the catcher and might not have been playable with "ordinary effort."
• They kept insisting that it was obvious this was an infield fly and there was no judgment involved that would cause the umps to have to think about it. But the question is not whether the ball is on the infield, but whether it is playable with ordinary effort. That involves judgment.

From watching seven years worth of IFR plays, I have listened to a lot of announcers guessing (wrongly) about the rule). This was among the worst conversations I have heard.