By Christopher R. Deubert, Senior Writer
In the May 5, 2023 issue of the Sports Litigation Alert, James Molen of Greenberg Glusker LLP detailed the recent dismissal of former NFL player Junior Galette’s lawsuit against the NFL, Commissioner Roger Goodell, and several NFL clubs. As explained in Molen’s article, Galette alleged that he had been blacklisted by the NFL on account of his race after publicly criticizing a contract offer from the Washington Commanders as an unacceptable “slave deal.” This article will examine the interesting procedural history and defenses at issue in the case.
Galette’s action in the United States District Court for the Southern District of Florida was not his first effort at seeking redress for his claims. Galette initially filed a grievance pursuant to the NFL-NFLPA collective bargaining agreement (CBA) in August 2020. Galette’s claim there was not, however, for racial discrimination per se. Instead, Galette alleged that NFL clubs had colluded against him in violation of the CBA.
Antitrust Litigation in the NFL
To understand Galette’s claim and its adjudication requires historical context. The NFLPA and its players engaged in extensive litigation between 1987 and 1993 after the expiration of the CBA in 1987. The players’ litigation strategy evolved as a result of various court decisions, including the eventual decertification of the NFLPA as the players’ bargaining representative and a class action antitrust lawsuit against the NFL and its clubs alleging that their salary cap, free agency, and Draft rules were violations of antitrust law. Significantly, because the NFLPA had been decertified, the NFL’s rules were no longer protected by the non-statutory labor exemption.
The litigation was finally settled in White v. NFL. 836 F. Supp. 1458 (D. Minn. 1993). The settlement resolved those core areas of dispute and became the backbone of a new CBA and economic system for the NFL that continues to this day. As is common in class action settlements, Judge Doty of the United States District Court for the District of Minnesota retained jurisdiction to resolve disputes over the agreement’s implementation. To facilitate that process, pursuant to Fed. R. Civ. P. 53, the parties agreed on a Special Master to adjudicate disputes for potential appeal to Judge Doty. Since 2002, that role has been held by University of Pennsylvania School of Law Professor Stephen Burbank.
Burbank’s 21-year run as the arbitrator for the most contentious disputes between the NFL and NFLPA is remarkable, particularly given that sports leagues and unions have regularly dismissed arbitrators after just one disagreeable ruling. Indeed, after more than a decade of decisions by Judge Doty that the NFL believed favored the NFLPA, it resolved to end his oversight in the 2011 CBA negotiations. The 1993 CBA was extended multiple times but, as a result of the 2006 CBA’s expiration in March 2011, Judge Doty’s jurisdiction ended.
The System Arbitrator
Nevertheless, when the parties finally reached a new CBA in July 2011, they retained essentially the same role for Professor Burbank. However, his title changed from Special Master to System Arbitrator, given that his role was now outside the jurisdiction of the federal courts. The System Arbitrator nevertheless retained jurisdiction to hear disputes concerning the same items at issue in the litigation of 1987-93. Today, the System Arbitrator has jurisdiction over select Articles of the CBA covering the NFL Player Contract, NFL Draft, rookie compensation, free agency, salary caps, and related concepts among a few others. These items go to the core “system” of NFL operations, hence the title.
Galette’s System Arbitration
Of relevance in Galette’s case, the System Arbitrator has jurisdiction over Article 17, Anti-Collusion. This makes perfect sense. The players’ principal legal arguments in the past litigation was that NFL clubs were in violation of Section 1 of the Sherman Act, which prohibits multiple parties from entering into agreements that unreasonably restrain a market. Article 17 is akin to Section 1, as it prohibits clubs from entering into express or implied agreements which restrain the player labor market, including agreements not to offer a contract to a specific player.
Galette initiated a System Arbitration alleging that clubs, in coordination with his estranged former agent Peter Schaffer, agreed upon and coordinated Galette’s exclusion from the NFL. Professor Burbank denied the NFL’s motion to dismiss the case and it proceeded in full force, with 17 depositions, including those of several club General Managers.
Nevertheless, in a 40-page August 18, 2021 Opinion and Order, Professor Burbank granted summary judgment to the NFL and its clubs. Of note, Professor Burbank’s expertise is civil procedure, not antitrust. Consequently, it is not surprising he spent about ten pages of the Opinion analyzing the appropriate burden of proof as provided for in the language of the CBA and its similarities and differences to Fed. R. Civ. P. 56, which governs summary judgment motions in federal court.
After analyzing the factual bases for different theories put forth by Galette, Professor Burbank ultimately determined that none of them “grounds a reasonable inference, according to the governing standard of proof, that Respondents agreed, explicitly or implicitly, not to hire Galette.” More specifically, Professor Burbank explained that parallel conduct (i.e., clubs acting similarly) may be relevant to proving collusion but requires more. Further, to the extent any NFL club colluded with Schaffer to harm Galette, such collusion is not actionable since Schaffer is not an NFL club employee. Finally, Galette unsuccessfully argued that the NFL’s routine gathering of arrest records included a quota for the number of players with criminal histories that clubs could employ.
Galette’s Hail Mary
Galette appealed Professor Burbank’s decision to the CBA’s Appeals Panel but then defaulted in those proceedings. Galette theoretically could have initiated an action in federal court seeking to vacate Professor Burbank’s opinion by arguing that it was so erroneous as to constitute a breach of the CBA, though the chances of such an action succeeding were likely close to zero.
Instead, Galette, despite having been represented by counsel during the System Arbitration, filed a rambling and nearly incoherent pro se complaint which the court generously interpreted as alleging violations under federal anti-discrimination laws. Galette also argued that the NFL had breached Article 49, Section 1 of the CBA, which prohibits discrimination against players on account of race and other protected characteristics.
The NFL’s Defenses
The court easily dispatched Galette’s claim for a violation of the CBA because such a claim was subject to the arbitration provisions of the CBA. However, the NFL did not argue that Galette’s other claims were preempted by the CBA or needed to be resolved via its arbitration processes, a common defense in lawsuits brought by players. In the last issue of the Sports Litigation Alert, I explored this issue in the context of a case brought by Aaron Patrick. The NFL’s omission of this defense is reminiscent of its loss in the “StarCaps” litigation, in which the Eighth Circuit determined that the CBA could not preempt claims brought pursuant to state statutes. Williams v. NFL, 582 F.3d 863 (8th Cir. 2009).* A decision the Supreme Court declined to review. 131 S. Ct. 566.
Nevertheless, the NFL was easily able to dispatch of Galette’s case based on his complete failure to sufficiently plead the elements of his claims. Galette has appealed the court’s decision to the Eleventh Circuit, which should similarly make short work of his claims. While his claims in federal court did not get traction, his System Arbitration did provide an interesting study into potential collusion claims against NFL clubs.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP.
* I was a part of the Williamses legal team on subsequent parts of this matter.
