A federal judge from the District of Colorado has granted the National Football League’s motion for summary judgment in a case in which a professional football player challenged an arbitrator’s ruling, which held for the league in a drug testing matter.
In so ruling, the court found among other things that the arbitrator was unbiased and the delays in the decision process did not prejudice the plaintiff’s case.
On August 9, 2011, Genos “D.J.” Williams, a player for the Denver Broncos, provided a urine specimen pursuant to the NFL Policy on Anabolic Steroids and Related Substances and the Substances of Abuse Program.
The court emphasized that the policy was collectively bargained for by the NFL Management Council on behalf of the teams and the NFL Players’ Association (NFLPA) on behalf of all NFL Players.
On November 11, 2011, Williams was notified, by letter, that he was being suspended six games for attempting to manipulate a specimen or test in violation of the policy. Specifically, the specimen did not contain endogenous steroids, and therefore “was not physiologically-produced human urine.”
The plaintiff appealed the ruling, alleging that the chain of custody demonstrated for his urine was “incomplete,” and the specimen was “not collected and handled by the collector in accordance with protocol.” Moreover, he asserted that “these failures undermined and compromised the integrity of the testing process and that the suspension should be dismissed.”
The appeal was heard by Harold Henderson, Senior Advisor to the Commissioner of the NFL, on November 30, 2011.
A ruling in the matter was delayed after Jeffrey Pash, the NFL’s General Counsel and Executive Vice President, asked Henderson to hold off on making a decision until he could consult with the NFLPA about the matter.
When the arguments were finally heard, Williams claimed that there had been “a departure from the policy,” or “a gap in the chain of custody from 12:18 p.m. until 3:08 p.m. on August 11, 2011. Additionally, the plaintiff argued that the specimen had not been sealed in his presence and that his signature had been forged on the Form.”
The NFL countered that the departure from its protocols “did not materially affect the validity of the test.”
On February 6, 2012, Henderson issued a decision denying the plaintiff’s appeal and upholding the six-game suspension. While Henderson concluded that the failure to follow collection protocols was “troubling,” he noted that the “policy would be eviscerated if every clerical mistake excused discipline.”
“Further, he determined that the deviations from established protocol in this case did not materially affect the validity of the test and denied the plaintiff’s appeal. Specifically, he concluded that: (1) there was no break in the chain of custody which materially affected the validity of the laboratory test; (2) the Form was most likely signed by the plaintiff; (3) there was no evidence that the specimen collector deliberately substituted a substance for the player’s collected specimen without the player’s knowledge, nor of any plausible motive for him to do so; and (4) the November 16, 2011 attempted manipulation, as well as the two collected specimens that were determined not to be human urine, painted a ‘compelling picture of deceit and evasion.’”
On March 12, 2012, the plaintiff filed a petition to vacate arbitration award, spawning the instant opinion. The NFL ultimately moved for summary judgment.
The federal judge sided with the NFL matter for four reasons.
First, Henderson did not exceed his power. The arbitrator “did not ignore the plain language of the policy in applying the burden of proof,” held the court. Likewise, the fact that there was a delay in the decision process did not cause “any actual harm to the losing party.” W. Rock Lodge No. 2120, Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Geometric Tool Co., Div. of United-Greenfield Corp., 406 F.2d 284, 286 (2d Cir. 1968); see also McMahon v. RMS Elecs., Inc., 695 F. Supp. 1557, 1559 (S.D.N.Y. 1988) (an arbitrator does not exceed his power when he issues a late decision where “there is no objection, or if there is no prejudice to the losing party caused by the delay”).
Second, Henderson did not engage in misconduct. The plaintiff claimed that the conversation between Pash and Henderson prejudiced him “because the threat of a suspension hung over his head for months instead of days. Further, the plaintiff alleges that the delay prevented him from beginning his suspension in 2011, which prejudiced him because he now must serve his suspension during the 2012 season when he would otherwise benefit from an increased salary.
“However, the court finds that, even assuming the conversation between Pash and Henderson constituted an ex parte communication, the plaintiff suffered no prejudice. Although the plaintiff may have been negatively impacted emotionally and financially by the delay in the award, he failed to show that the communication between Henderson and Pash resulted in an alteration or augmentation of the award, itself. Thus, the alleged ex parte communication in this case did not constitute misconduct.”
Third, the award did not violate public policy because it contravenes “established laws of the international sports community and the public policy underlying those laws,” as the plaintiff alleged.
“For a court to determine that an award contravenes public policy, the policy must be ‘well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.’ W.R. Grace & Co. v. Local Union 759 Intern. Union of United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983) (quoting Muschany v. United States, 324 U.S. 49, 66, 65 S. Ct. 442, 89 L. Ed. 744 (1945)).
Fourth, Henderson did not manifestly disregard the law concerning the chain of custody of his urine specimen. “The plaintiff cites no evidence in the record showing that Henderson explicitly disregarded the evidentiary standards governing a valid chain of custody,” wrote the court.
Finally Henderson was unbiased. The plaintiff alleged that his conversation with Pash made him biased.
“The Court has already determined that the alleged ex parte communication did not amount to misconduct,” wrote the court. “Thus, such communication is insufficient to sustain this claim that the arbitrator was not impartial. Further, the plaintiff was aware that Henderson was appointed by the Commissioner of the NFL yet did not object on the basis of bias during the proceedings; rather, the plaintiff waited until after receiving an adverse decision to do so.”
Genos “D.J.” Williams v. The National Football League; D. Colo.; Civil Action No. 12-cv-00650-CMA-MJW; 2012 U.S. Dist. LEXIS 85899; 6/22/12
Attorneys of Record: (for plaintiff) Marci A. Gilligan, LEAD ATTORNEY, David M. Tenner, Ridley McGreevy & Winocur, P.C., Denver, CO; Peter Robert Ginsberg, LEAD ATTORNEY, Peter R. Ginsberg, LLC, New York, NY; James Kendall Lewis, Patton Boggs, LLP-Denver, Denver, CO. (for defendant) Daniel L. Nash, LEAD ATTORNEY, Akin, Gump, Strauss, Hauer & Feld, LLP-DC, Washington, DC; John M. Husband, LEAD ATTORNEY, Holland & Hart, LLP-Denver, Denver, CO; Steven T. Collis, Holland & Hart, LLP-Greenwood Village, Greenwood Village, CO.
