Judge Finds That NFL Arbitration Has "Potential For Very Real Bias"

A Missouri Court of Appeals judge has declared the NFL's arbitration policy "unconscionable and unenforceable," writing that "the Arbitration Provision does not afford a mechanism to ensure the fairness and impartiality of the arbitration proceeding." It's important reading for any football player who's ever wondered why his suspension appeal is heard by someone appointed by Roger Goodell.

The case concerns Todd Hewitt, a former Rams equipment manager who was fired in 2011. After serving in the role for 25 years, Hewitt believes he was fired because of his age, and filed a lawsuit against the team citing age discrimination. A St. Louis County Circuit Court threw out Hewitt's suit, finding that his contract with the team stated that his only recourse was to the NFL's third-party arbitration process. Hewitt appealed, arguing that since the arbitrator is appointed by the Commissioner, the process is naturally biased in favor of the NFL. Last week, the appeals court judge agreed with him.

The judge, Kurt S. Odenwald, did not claim that Roger Goodell or his chosen arbitrator are overtly prejudiced in favor of the teams. But, Odenwald wrote, the potential is unavoidable in any situation where Goodell is employed by the teams the arbitrator is supposed to be ruling on.

The full Writ of Mandamus is below. Here are the key points (emphasis mine):

If Hewitt and the Rams engage in a neutral arbitration proceeding, we are not persuaded that Hewitt will be deprived of a remedy or adequate relief upon appeal should we decline to issue the requested writ. The Arbitration Provision, however, does not provide for a neutral arbitration proceeding. Instead, the Arbitration Provision entrusts the arbitration proceedings to the Commissioner, whose decision shall be final, binding, conclusive and unappealable. Here, the arbitrator is the designee of the Commissioner and the Commissioner owes his position to the teams comprising the NFL, which includes the Rams. Similar to the situation presented in State ex rel. Gayle Vincent v. Schneider, 194 S.W. 3d 853 (Mo. banc 2006), we find an arbitration provision that allows the selection of the arbitrator, who must be unbiased, to be made solely by an individual who is in a position of bias, to be unconscionable and unenforceable. An unconscionable arbitration provision in a contract will not be enforced.

[...]

The Rams' suggestion that the NFL Constitution requires the employment of a commissioner who is "a person of unquestioned integrity" and who "shall have no financial interest, direct or indirect in any professional sport" does not negate the ingrained potential for bias associated with allowing a person who owes his employment and position to the NFL teams that selected him as Commissioner to preside over any dispute and select the arbitrator for proceedings in which an NFL team is a party. Our recognition of the potential for very real bias is not intended to impugn the integrity of the Commissioner or his appointee. However, the very nature of bias is often subtle and unseen to the person or persons holding such bias. For that reason, it is imperative that an arbitration proceeding be overseen by an arbitrator selected in an objectively impartial and unbiased manner. The selection of the arbitrator under the Arbitration Provision does not afford a mechanism to ensure the fairness and impartiality of the arbitration proceeding. We hold that to force Hewitt to proceed with an arbitration given the method in which the arbitrator was selected would deprive Hewitt of an adequate remedy upon appeal.

The writ orders that a court rather than the NFL must elect an impartial arbitrator to hear Hewitt's grievance.

This narrow ruling shouldn't have any repercussions for players facing the NFL's appeal process, like those Saints who went before an arbitrator to appeal their Bounty scandal punishments, or future players who will likely face third-party arbitration for positive PED tests. The NFLPA declined a request for comment, but whereas Hewitt's arbitration provision was part of his employment agreement, which he had no choice but to sign (a distinction the judge made clear), the provision for player arbitration was collectively bargained by the union.