In a recent article included as part of the launch of Law360 Sports, St. Louis partner Bob Wallace discusses a form of alternative dispute resolution, that of arbitration, specific to professional sports in the United States.
Bob is chairman of the Thompson Coburn’s Sports Law Group, and has over 20 years of combined legal experience working for NFL franchises Philadelphia Eagles and St. Louis Rams.
In his Law360 article, “Neutral Arbitrators In Sports: What Makes It Fair?” Bob details the debate over whether arbitrators in pro sports disputes, who are usually the Commissioners or their designees, are possibly biased when presiding over disputes between teams and their owners, and the teams’ employees or players.
“At the core of this issue is the fact that Commissioners are hired and employed by team owners and therefore, in the minds of critics, are predisposed to rule in the interest of an owner and against the interest of the player (or other employee who by reason of contract has agreed to let the Commissioner be the arbiter of certain disputes),” Bob writes.
This is not a new issue, however, as Commissioners have been exercising their disciplinary powers for decades. “The most famous, if not the first, was Judge Kenesaw Mountain Landis, who…was made Commissioner of Baseball in 1920 by the owners. He served as the autonomous head of all of baseball and was imbued with vast powers, which he unquestionably exercised when he suspended the White Sox players for gambling on baseball despite their acquittal in a court of law.”
The concern isn’t isolated to just baseball, either, as Pete Rozelle of the NFL, the NBA’s David Stern, the MLB’s Bud Selig, and most recently Roger Goodell have issued controversial rulings in disputes between players and teams.
In the case of Goodell, Bob writes about a recent Missouri Supreme Court decision, Hewitt v. Kerr, that strongly questioned the Commissioner’s role as a fair and neutral arbitrator. The high court sided with the position of a fired equipment manager and ruled that Goodell couldn’t act as arbitrator in the man’s wrongful termination suit.
In the MLB, even when “neutral” arbitrators have been agreed upon between the league and the union, impartiality is still a question in the eyes of the public. Arbitrator Shyam Das overturned two high profile MLB players’ suspensions, and was fired immediately after. What must other “neutral” arbitrators be thinking when overseeing their disputes?
While the Missouri Supreme Court’s decision is likely limited to Missouri-based teams, what options do other franchises have? Bob writes that the real issue is “not really who selects the arbitrator or who pays him, but whether the arbitrator can view the facts of the case, and apply the rules that govern the case consistently and fairly.” To do this, he suggests the possibility of providing arbitrators with term agreements that wouldn’t allow them to be fired for their decisions. He also says requiring arbitrators to issue written opinions clearly defining the rationale of their decisions could serve as another safeguard.