Sports Attorneys Address Recent Decisions by Arbitrators in Pro Sports

Jun 16, 2006

Roger Kaplan was home reading the paper one morning 18 months ago, when he saw the story about the infamous brawl in Detroit involving the Indiana Pacers and several fans.
“I thought to myself, ‘I pity that poor arbitrator’,” Kaplan said at the Sports Lawyers Association’s annual meeting, where he was participating in a panel on arbitration.
Little did Kaplan know that he would be the arbitrator. While he had been fired as an arbitrator by the NBA several months earlier, the NBA had failed to select a new arbitrator, which meant any new cases would default to the last arbitrator, based on the Collective Bargaining Agreement.
During the panel, Kaplan described his decision process in the case, while the attorneys representing the two sides were within arm’s reach.
He first noted that the NBA did not appear at the arbitrator hearing, staking out its position that the incident occurred within the confines of “The playing court” and thus was not reviewable. Their position was that this “wasn’t a case where management has to prove anything,” said Kaplan. “The commissioner had unfettered discretion because the incident occurred on the playing court.”
Kaplan ultimately upheld all the player suspensions, except the one for Jermaine O’Neal. “The NBA considered the histories of all the players, except for O’Neal,” said Kaplan. “Here was a guy who had never been in trouble, had a history of community service and did not go into the stands. I reduced his suspension to 15 games.”
Next to speak during the panel discussion was the NBA’s Jeffrey Mishkin.
“This brawl was about one of the worst things that could happen to the NBA. It disintegrated before our eyes over and over on television.
“It was very important to the commissioner that this never happen again. We believed the commissioner had exclusive authority for matters that occurred on the playing court. We thought it was obvious on the court conduct. It seemed like a routine application of commissioner’s powers to suspend players and that it was not reviewable.”
The NBA had little time to react to Kaplan’s appointment and the scheduled hearing. But the decision not to participate in that hearing was clear cut. “We were concerned that any involvement might impair our ability to have a de novo review,” he said.
Mishkin added that the legal debate that was raised in the case remains unresolved as the NBA recently filed a brief in the 2nd U.S. Circuit Court of Appeals.
In some respects, the outcome of that debate has become moot as the league and the union drew bright lines in the current CBA negotiated after the brawl. The commissioner has exclusive authority to issue suspensions of 12 games or fewer or fine of $50,000 or less for incidents that occur in the arena, not just the playing court.
Jeffrey Kessler, the omnipresent player/union attorney from Dewey Ballantine then followed Mishkin.
Initially, he took a shot at the NBA, noting that it had “bright line” rules for players, but not for owners like Mark Cuban.
He stressed that the tradeoff in the CBA “was well worth making.”
Then he turned to another well-known client that he has represented – Terrell Owens.
Kessler Suggests Terrell Owens was Wronged
At issue in the case involving Owens was the decision of the Philadelphia Eagles to suspend Owens for the rest of the 2005 season without pay, something Kessler described as comparable to disciplining a child by sending him to his room, for his conduct during the pre-season.
The Eagles, at the time, had already suspended Owens for four games without pay, which is the maximum penalty a club could administer under the old CBA. But the extra discipline was too much, argued Kessler.
“What you have to look at, here, is what is just cause,” said Kessler. “This is where an employer has to come forward and show a basis that is fair and equitable.”
Kessler described Owens transgressions as “public comments about his quarterback and his refusal to apologize. We didn’t feel that was just cause.”
Specifically, Kessler suggested that the arbitrator (Richard Bloch) “exceeded the authority of the agreement. The arbitrator is not supposed to come in and put their own view of what is good for the game. We believe that this exceeded the allowable team discipline for the ‘conduct detrimental to team’ standard.”
Kessler added that the NFL’s position was that “this wasn’t discipline, but a coach’s coaching decision.” And the “arbitrator refused to consider it discipline.
“We did end up removing the arbitrator, and the situation was addressed in the CBA.”


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