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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00650-CMA-MJW GENOS “D.J.” WILLIAMS and RYAN McBEAN,

Plaintiffs, v. THE NATIONAL FOOTBALL LEAGUE, Defendant.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant the National Football League (“NFL”), by and through its undersigned

attorneys, and pursuant to Federal Rule of Civil Procedure 56, respectfully moves the

Court for entry of summary judgment in favor of the NFL in response to Plaintiffs’

Petition To Vacate Arbitration Awards. As set forth below, as a matter of law, Plaintiffs’

Petition should be dismissed.

INTRODUCTION

Plaintiffs Genos “D.J.” Williams (“Williams”) and Ryan McBean (“McBean”),

players for the Denver Broncos, seek to vacate final and binding labor arbitration

awards (“Awards”) upholding their six-game suspensions for manipulation of their urine

specimens in violation of the NFL Policy On Anabolic Steroids And Related Substances

(the “Policy” or “Steroid Policy”).

The Policy, which is negotiated and agreed to by the NFL Management Council

(“NFLMC” or “Management Council”), the bargaining representative of NFL clubs, and

Case 1:12-cv-00650-CMA-MJW Document 49 Filed 04/17/12 USDC Colorado of 36

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the National Football League Players Association (“NFLPA”), the union representing

NFL players, requires all NFL players to undergo random urinalysis testing to ensure

that players are not using any performance-enhancing substances. A player violates

the Policy when his urine specimen tests positive for a prohibited substance or where

the player makes “any effort to substitute, dilute or adulterate a specimen, or to

manipulate a test result to evade detection” of prohibited substances. Players

disciplined for violations of the Policy can appeal their discipline to a “Hearing Officer”

designated by the NFL Commissioner who, following a hearing, will issue a final and

binding decision.

The undisputed facts in this case establish that Plaintiffs were tested pursuant to

the Policy and that the laboratory determined that Plaintiffs’ specimens were not human

urine. Pursuant to the Policy, Plaintiffs were suspended for six games for manipulation

of their specimens.

Plaintiffs appealed their suspensions, and the NFL Commissioner designated

Harold Henderson as the Hearing Officer. Following hearings consisting of testimony

and documentary evidence, the Hearing Officer upheld the suspensions based on his

determination that the NFL had satisfied its burden of proof under the Policy.

Plaintiffs now seek to re-litigate their appeals, based on virtually identical

arguments raised before the Hearing Officer, under the guise of a Petition to Vacate the

Awards (ECF No. 12 (“Pet.”)) brought under the Federal Arbitration Act, 9 U.S.C. §§ 1-

16 (“FAA”) and the Labor Management Relations Act, 29 U.S.C. § 185 (“LMRA”). But

this court does not “sit to hear claims of factual or legal error by an arbitrator as an

appellate court does in reviewing decisions of lower courts.” United Paperworkers Int'l


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Union v. Misco, Inc., 484 U.S. 29, 37-38 (1987). The standard of review of arbitration

awards, particularly labor arbitration awards where the arbitrator must resolve disputes

with reference to the parties’ custom and practice, “is among the narrowest known to the

law,” Champion Boxed Beef Co. v. Local No. 7 Food & Commercial Workers, 24 F.3d

86, 87 (10th Cir. 1994), and an award may be vacated “only in extraordinary

circumstances,” San Juan Coal Co. v. International Union of Operating Engineers, Local

953, --- F.3d ----, No. 11-2071, 2012 WL 698792, at *2 (10th Cir. Mar. 6, 2012) (citations

omitted). No such extraordinary circumstances exist here.

Plaintiffs seek to vacate the Awards on the grounds that they fail to draw their

essence from the Policy and based on a host of procedural attacks inapplicable to

actions to vacate arbitration awards under the LMRA. 1

First, the Awards indisputably draw their essence from the Policy. The Hearing

Officer considered Plaintiffs’ challenges to the evidence supporting their suspensions,

including their various arguments regarding alleged unaccounted-for gaps in the chain

of custody of their specimen, and concluded those challenges did not “materially affect

the validity” of the evidence demonstrating that Plaintiffs had manipulated their

As a matter of law and based

on the undisputed material facts, Plaintiffs cannot demonstrate the “exceptional

circumstances” necessary to vacate an arbitration award, Ormsbee Development

Company v. Grace, 668 F.2d 1140 (10th Cir. 1982), and their Petition to Vacate should

be dismissed.

1 Plaintiffs also ask the Court to preliminarily enjoin their suspensions pending the outcome of this case. For the reasons set forth in Defendant’s Opposition to the Motion for Preliminary Injunction, filed simultaneously with this motion, Plaintiffs’ motion should be denied.


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specimens in violation of the Policy. This conclusion, based on the Hearing Officer’s

interpretation of the Policy, cannot be second-guessed here.

Second, having agreed to an arbitration process which vests exclusive authority

in the NFL Commissioner or his designee to resolve their appeals, Plaintiffs cannot now

seek to rewrite the bargain struck by their Union by alleging that the Awards must be

vacated because the Hearing Officer has a long-standing relationship with the NFL.

Plaintiffs never raised any bias objections or concerns at during the arbitration

proceedings, even though the Hearing Officer’s relationship and employment with the

NFL was well known. The bias claim thus fails as a matter of law because it has been

waived. In any event, speculation about the appearance of bias, without more, does not

establish the actual bias required to vacate an arbitration award. Ormsbee Dev. Co.,

668 F.2d 1140.

Third, Plaintiffs rely on a conversation in which NFL general counsel Jeff Pash

requested the Hearing Officer delay issuing his decisions to allow the NFL and the

NFLPA to discuss Plaintiffs’ cases and claim that this constituted an “ex parte”

communication warranting vacatur. But, even assuming a conversation between the

Commissioner’s designee and the Commissioner’s in-house counsel could be

construed as “ex parte” (which it is not), the law is clear that an arbitration award may

not be vacated based on “ex parte” conversations pertaining to procedural matters that

do not adversely affect the outcome of the award. In any event, Plaintiffs waived the

right to seek review of the Hearing Officer’s decisions on this ground because they

previously presented the issue to the Hearing Officer, who ruled against them.

Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1267-68 (10th Cir. 1999). The


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Hearing Officer’s ruling, based on his interpretation of the Policy and the parties’ past

practice, must be given the same deference as the Awards themselves.

Fourth, the Awards do not violate any law or policy. Plaintiffs cite to the

precedents of the “Court of Arbitration for Sport,” a Switzerland-based tribunal, but those

precedents fall woefully short of an “explicit, well-defined, and dominant” public policy,

United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 43 (1987),

necessary to overturn an arbitration award.

Finally, even assuming Plaintiffs could vacate labor arbitration awards based on

manifest disregard of the law following the Supreme Court’s decision in Hall Street

Associates, LLC v. Mattel, Inc., 552 U.S. 576 (2008), they cannot demonstrate that the

Hearing Officer “knew the law and explicitly disregarded it,” Hosier v. Citigroup Global

Markets, Inc., --- F. Supp. 2d ---, 2011 WL 6413812, at *3 (D. Colo. Dec. 21, 2011).

The Petition to Vacate the Awards should be dismissed.

STATEMENT OF UNDISPUTED FACTS

A. The Collectively-Bargained NFL Policy On Anabolic Steroids And Related Substances And The Policy And Program On Substances Of Abuse

1. The NFLMC and NFLPA have collectively bargained for and agreed to the

Policy on Anabolic Steroids and Related Substances (“Policy” or “Steroid Policy”) and

The Policy and Program on Substances of Abuse (“SOA Policy” or “Drug Program”).

2. Both the Steroid Policy and the SOA Policy prohibit players from using

certain prohibited substances in order to uphold the integrity of the game of professional

football, because of the adverse health consequences associated with using prohibited


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substances, and to send a message to young people that the use of prohibited

substances is unacceptable. (Ex. A at 100-101.2)

3. Players who violate the Steroid or SOA Policies, either by testing positive

for prohibited substances or by manipulating their specimens, are subject to discipline

by the NFL Commissioner. (Id. at 104, 107-08.)

B. The Steroid Policy

4. The Steroid Policy establishes testing procedures for detecting prohibited

substances and sets forth discipline for violations of the Policy. (Ex. A at 99.)

5. Players are subject to testing at the beginning of the season and during

the preseason, regular season, post-season, and off-season. (Id. at 103.) Players

selected for testing are notified at the time of the collection. Once the player reports for

testing, he must furnish a urine specimen to the authorized specimen collector.

6. The NFLMC contracts with the National Center for Drug Free Sport (“Drug

Free Sport”) to collect specimens for the SOA and Steroid Policies. (Pet. ¶ 13; Ex. J at

2, Ex. K at 2.) Drug Free Sport subcontracts with companies and individuals to provide

collection services around the country. (Pet. ¶ 13; Ex. J at 2, Ex. K at 2.)

7. At the time of collection, players have the opportunity to sign a chain-of-

custody form, also called the “Athlete Custody and Control Form” (Ex. J at 4, Ex. K at

2), by using a hand-held scanner device that records the time a player checks in for

testing and the time a player checks out of the testing process (when the player signs

and certifies the sample has been collected according to the Policy’s procedures) (id.).

2 All citations to exhibits herein are to those exhibits filed with Petitioner’s Memorandum of Law in Support of Amended Petition to Vacate Arbitration Awards and Motion for Preliminary Injunction (“Mem.”) (ECF No. 13).


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The player electronically signs on the scanner with a stylus and presses an “agreed”

button after verifying that he provided his specimen under direct observation; had the

opportunity to select a sealed cup and kit; and that his specimen was divided into an “A”

and “B” bottle and sealed in his presence. (Ex. J at 4, Ex. K at 4.)

8. Following collection, the specimen is sent to one of two laboratories to

analyze the specimens to verify that they constitute human urine and to determine

whether they contain any of the prohibited substances set forth in the Steroid Policy.

(Ex. A at 105; Ex. K at 1, Ex. J at 1.)

9. If the specimen tests positive for a prohibited substance or is found to be

manipulated in violation of the Policy, the NFL notifies the player of his discipline

pursuant to the Policy and his right to appeal. (Ex. A at 120-21.)

10. A mandatory minimum four-game suspension is imposed for players who

test positive for substances prohibited by the Policy. (Id. at 107.) Because

manipulation represents a threat both to the integrity of the game and the integrity of the

testing process, players are subject to increased discipline for “any effort to substitute,

dilute or adulterate a specimen, or to manipulate a test result to evade detection” of

prohibited substances. (Id. at 104.)

11. Players notified that they have violated the Policy have the right to an

appeal and a hearing. The NFLMC and the NFLPA have agreed that the NFL

“Commissioner or his designee will preside as Hearing Officer.” (Id. at 110.)

12. The Policy sets forth evidentiary presumptions and each side’s burden of

proof at the hearing. (Id.)

Upon appeal of a positive test result, the League shall have the initial burden to establish a prima facie violation of the Policy, and


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the specimen collectors, Independent Administrator, Consulting Toxicologist and testing laboratories will be presumed to have collected and analyzed the player’s specimen in accordance with the Policy. The player may, however, rebut that presumption by establishing that a departure from the Policy’s stated protocols occurred during the processing of his specimen. In such case, the League shall have the burden of establishing that the departure did not materially affect the validity of the positive test or other violation.

(Id.)

13. After the record is closed, “the Hearing Officer will issue a written decision,

which will constitute a full, final, and complete disposition of the appeal and which will

be binding on the parties . . . . Pending completion of this appeal, the suspension or

other discipline will not take effect.” (Id.; see also id. at 121 (“Once the record is closed,

the Hearing Officer will evaluate the evidence and render a written decision with respect

to disciplinary action within five (5) calendar days.”).)

C. Plaintiffs’ Suspensions Under The Steroid Policy

14. Both Plaintiffs are professional football players who at all relevant times

have been employed by the Denver Broncos. (Ex. K. at 1, Ex. J at 1.)

15. Plaintiffs were notified in August 2011 that they had been selected for

testing. (Ex. K at 1, Ex. J at 2.) When they reported to the testing site, they learned that

they would be providing a sample for both the SOA and Steroid Policies, and provided a

specimen into a cup. (Ex. K at 3, Ex. J at 4.)

16. The players’ samples were split into two separate samples, one for each

Policy. (Ex. K at 1, Ex. J at 1.) Each player signed the Athlete Custody and Control

form and left. (Ex. K at 3-4, Ex. J at 6-7.) When the laboratory received the Steroid

Policy samples, it analyzed them and determined they contained no endogenous

steroids, substances normally found in human urine. (Ex. K at 2, Ex. J at 2.)


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17. On October 6, 2011, Dr. John Lombardo, the Independent Administrator of

the Policy, separately notified the players that the laboratory had determined that their

specimens were not human urine and that they had violated the Policy. (Ex. B at 3, Ex.

A at 4.)

18. On November 11, 2011, the NFL separately notified the players that they

were suspended without pay for six games for attempting to manipulate a specimen or

test in violation of the Steroid Policy. (Ex. K at 1; Ex. J at 1.)

D. Plaintiffs’ Appeals Under The Policy’s Procedures

19. Both Plaintiffs noticed appeals under the Policy. (Ex. J at 1, Ex. K. at 1.)

Separate hearings were scheduled to be held before Harold Henderson, the Hearing

Officer designated by the NFL Commissioner pursuant to the Policy. (Ex. C at 4; Ex. D

at 4.) Attorneys for both players requested a postponement of their hearing dates.

(See Ex. A at 27 (Williams’ attorney requesting to postpone December 6 hearing date to

“December 13 or 20, or on any other mutually-convenient date”); Ex. D at 7-8

(McBean’s attorney requesting a “continuance” of the hearing).)

20. The hearing on McBean’s appeal was held on November 29 and

December 7, 2011. (Ex. K at 1.) The Hearing Officer heard Williams’ appeal on

December 13, 2011. (Ex. J at 1.)

21. The NFLMC, which has responsibility for enforcing the Policy (Ex. A at

101, 110), represented the NFL at the hearings (Ex. C at 5, Ex. D at 4).

22. Both players were represented by counsel along with a representative

from the NFLPA and called multiple witnesses. (Ex. C at 4-5, Ex. D at 4-5.) Both

players argued that their suspensions should be overturned because of gaps in the

chain of custody and the collector’s failure to comply with the Policy’s collection


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protocol. (Ex. J at 2-3, Ex. K at 2-3.) Both players also disputed their signatures on the

Athlete Custody and Control form. (Ex. J at 3, Ex. K at 3.)

E. The Players Move To Dismiss Their Suspensions

23. On January 16, 2012, more than a month after Plaintiffs’ hearings, and

exactly two days after the Broncos were eliminated from the playoffs, McBean moved to

dismiss “the case” against him. (Ex. G.) McBean alleged that the Policy requires the

Hearing Officer to issue a decision within five days after the close of the record and

stated that “there has been no motion made by either side or the hearing officer for an

extension of time in which to render a written decision.” (Id. at 2.) He therefore asked

to have “the case dismissed against Mr. Mcbean [sic] in its entirety.” (Id.)

24. The same day, counsel for Williams filed a separate motion to dismiss the

case against his client. (Ex. F.) Like McBean, Williams’ counsel claimed that because

the Hearing Officer did not issue a written decision within five days of the close of the

record, the “matter” should “be dismissed in its entirety.” (Id.)

25. On January 19, 2012, the Hearing Officer issued rulings on both players’

motions. With respect to Williams, the Hearing Officer held as follows:

This responds to your request that the subject appeal be dismissed because a timely decision has not been issued. This Hearing Officer was asked to delay a decision on this matter to afford an opportunity for the parties to the governing collective bargaining agreement, the NFL and the NFLPA, to explore an agreed resolution of this dispute. This action is consistent with past practice. Therefore, your request that the matter be dismissed is denied.

(Ex. H.)

26. The same day, he issued a similar decision with respect to McBean:

I was directed to withhold issuance of a decision in this case pending discussions by the parties to the governing collective


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bargaining agreement, the NFL and the NFL Players Association. This is consistent with past practice where those parties saw fit to explore amicable resolution of the dispute prior to a decision by the hearing officer. Accordingly, the subject motion to dismiss the appeal is denied.

(Ex. I.)

F. The Arbitration Decisions

27. On February 6, 2012, the Hearing Officer issued two separate written

decisions upholding the players’ six-game suspensions. (Ex. J, Ex. K.)

28. The Hearing Officer rejected McBean’s assertions that his suspension

should be overturned based on technical deviations from the protocol set forth in the

Policy. The Hearing officer found the different dates on the cover letters summarizing

the contents of the laboratory package reflected a mere “typographical problem” of

which the Policy’s consulting toxicologist notified the laboratory and the laboratory

immediately corrected prior to the imposition of discipline. (Ex. K at 3.) “Even if such an

error were to be viewed as a departure from the policy’s stated protocols, it clearly does

not rise to the level of materially affecting the validity of the laboratory tests.” (Id.)

29. Next, the Hearing Officer addressed McBean’s contention that the

specimen collector deviated from the Policy’s protocols and claim that he did not sign

the “Athlete Custody Control form.” The player testified that he signed off on two vials,

which were sealed, but did not sign off on the other two unsealed vials. He claimed that

“[t]he collector said he would take care of the rest, so [he] assumed he would do his

job.” (Id. at 4.) The Hearing Officer found that the player did sign the chain of custody

form and that because his signature was made on an electronic scanner, his signature

may have looked slightly different than his normal written signature. (Id. at 4-5.)


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30. In any event, “[i]t is not necessary to make a judgment of Mr. McBean’s

credibility and veracity here . . . . I note that nobody, including Mr. McBean, has been

able to suggest a motive for anyone else to manipulate his specimen . . . . He is the

person with the most at stake from a positive drug test, which cannot be overlooked, for

no other person with any motive at all to manipulate his test was suggested.” (Id. at 5.)

31. The Hearing Officer further noted that McBean is in an intervention stage

of the Drug Program whereby any positive test would result in discipline. (Id. at 2, 5.)

32. The Hearing Officer held that players have “certain specific responsibilities

during the collection process which ensure integrity of the specimen . . . . The fact that

[McBean] was in a rush, never paid attention to details, and trusted the collector to ‘do

his job’ does not relieve him of that responsibility.” (Id. at 6.)3

33. Finally, the Hearing Officer distinguished two “Court of Arbitration for

Sport” cases relied on by the player, finding those cases “distinguishable on the facts,”

and noting that the “Policy clearly does not establish, or even suggest favor for, a strict

liability standard for the collection process.” (Id. at 5.)

34. The Hearing Officer concluded that the Management Council meets its

burden if it can prove that any departure from the Policy’s procedures “did not materially

3 The Hearing Officer also rejected the player’s arguments that the specimen collector deliberately substituted a substance for the collected specimen without the player’s knowledge. Following the laboratory’s determination that both McBean’s sample and Williams’ sample were “non-human,” Dr. Lombardo requested that Jonathan Tucker, a subcontractor to Drug Free Sport who served as the collector for both McBean and Wiliams, no longer be used for NFL collections. (Ex. K at 2.) Based on the two samples he collected that were found not to be human urine, Stadium Medical, the company who subcontracted with Drug Free Sport to provide Tucker as a collector, terminated Tucker’s services. (Id.) Drug Free Sport conducted an investigation to determine whether Tucker had any financial incentive to accept a bribe or otherwise assist the players in manipulating their specimens and found none. (Id. at 5.)


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affect the validity of the positive test or other violations.” “In my view,” the Hearing

Officer held, “that burden has been met.” (Id. at 6.)

35. With respect to Williams, the Hearing Officer found that Williams “most

likely” signed the chain of custody form, based in part on evidence showing Williams’

signature on at least 15 prior forms. In any event, “[t]here has been no evidence

presented, nor even an allegation, that Williams was denied any of those opportunities

[to witness the collection procedure and sign the chain of custody form].” (Ex. J at 6.)

36. The Hearing Officer acknowledged Williams’ contention that the chain of

custody form included an almost three-hour “gap,” but found “no evidence whatever that

the specimen was improperly handled or exposed to any risk” and noted that the “Policy

would be eviscerated if every clerical mistake excused discipline, even where the player

is not adversely affected.” (Id.)

37. The Hearing Officer further relied on evidence that Williams had engaged

in a pattern of test manipulation. In particular, the hearing evidence demonstrated that

a sample Williams submitted on September 7 similarly tested as non-human urine. (Id.)

Additionally, testimony by a collector established that on November 16, just a few

months after the collection in question, Williams had an unidentified bottle in his

possession during a specimen collection. (Id. at 5-6.) The Hearing Officer concluded

that, based on this testimony and the proof that another specimen Williams provided

was found to not be human urine, “[t]he evidence is clear that Williams was involved in

three separate incidents of attempted substitution of a specimen.” (Id. at 6.)


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38. Moreover, the Hearing Officer found that Williams had a motive to

manipulate his test because Williams is in an intervention stage of the Drug Program,

and a positive test would have resulted in discipline. (Id.)

39. The Hearing Officer based his decision in part on the “credibility of

testimony by Williams.” (Id. at 7.) He found that “inconsistencies, contradictions, and

memory lapses” compromised the player’s credibility. (Id.) Furthermore, “[t]he player

has certain specific responsibilities during the collection process which ensure integrity

of the specimen . . . . The fact that he was in a rush, never paid attention to details, and

trusted the collector to ‘do his job’ does not relieve him of that responsibility.” (Id.)

40. In sum, the Hearing Officer found that “[t]he only person with any

discernable motive to manipulate the test is Williams, who had the opportunity to do so

either by taking advantage of [the specimen collector’s] careless and improper

validation procedures or with his complicity. Much of his clearly recalled and precise

testimony too conveniently fit with, or attempted to discredit, the testimony he heard

from other witnesses, but the story he tells lacks credibility and fails to persuade this

Hearing Officer of his position.” (Id. at 8.) To the extent that any variations from the

Policy’s collection requirements did occur, the Hearing Officer concluded that “they did

not materially affect the validity of the violation.” (Id.)

G. The Players Seek to Vacate the Final and Binding Decisions Upholding Their Suspensions

41. On March 12, 2012, Plaintiffs filed a Petition to Vacate Arbitration Awards

under the Federal Arbitration Act in the District Court, City and County of Denver,

seeking vacatur and an order preliminarily enjoining their suspensions pending the

outcome of the case. (ECF No. 3.)


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42. On March 14, 2012, the NFL removed the action to this Court on the

ground that Plaintiffs’ “Petition” alleges breach of a collective bargaining agreement, and

suits for violation of CBAs are governed entirely by federal law pursuant to Section 301

of the Labor Management Relations Act, 29 U.S.C. § 185. (ECF No. 1.)

43. Following removal, on March 21, 2012, Plaintiffs filed an “Amended

Petition,” adding claims under the LMRA. In their Amended Petition, Plaintiffs allege

that the Hearing Officer “exceeded his powers by failing to follow the procedures and

evidentiary standards the Steroid Policy requires” (Pet. ¶ 77); engaged in “misconduct

by failing to issue a decision within five calendar days as required by the Steroid Policy”

(id. ¶ 83); violated public policy by issuing the Awards “despite clear and admitted

breaches by the NFL and its agents in carrying out their duties pursuant to the Steroid

Policy” (id. ¶ 92); engaged in “manifest disregard of the law” by “improperly ignor[ing]

fatal issues concerning” collection of Plaintiffs’ specimens (id. ¶¶ 94-95); and “engaged

in ex parte communications,” “resulting in [the Hearing Officer’s] flagrant violation of the

Steroid Policy time requirements for rendering a decision” (id. ¶ 101).

ARGUMENT

I. STANDARD OF REVIEW

“Judicial review of an arbitral award . . . ‘is among the narrowest known to the

law,’” Champion Boxed Beef Co. v. Local No. 7, United Food & Commercial Workers

International Union, 24 F.3d 86, 87 (10th Cir. 1994), and an award may be vacated “only

in extraordinary circumstances,” San Juan Coal Co. v. International Union of Operating

Engineers, Local 953, --- F.3d ----, No. 11-2071, 2012 WL 698792, at *2 (10th Cir. Mar.

6, 2012) (citations omitted).


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This narrow scope of review preserves the goals of arbitration to “avoid the

expense and delay of court proceedings,” Foster v. Turley, 808 F.2d 38, 42 (10th Cir.

1986) (internal citations omitted), and the parties’ agreement to “trade[] the procedures

and opportunity for review of the courtroom for the simplicity, informality, and expedition

of arbitration,” Brown v. Coleman Company, Inc., 220 F.3d 1180, 1182 (10th Cir. 2000).

These principles apply with particular force in the context of labor arbitration

awards, in which arbitrators have been tasked with hearing disputes that must be

resolved based on “knowledge of the custom and practices of a particular factory or of a

particular industry as reflected in particular agreements.” Local No. 7, United Food &

Commercial Workers Int’l Union v. King Soopers, Inc., 222 F.3d 1223, 1226-27 (10th Cir.

2000) (quoting United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593,

596 (1960)). In that context, “[a]n arbitrator’s factual findings are beyond review, as is

her interpretation of the contract as long as it does not ignore the plain language of the

collective bargaining agreement.” San Juan Coal Co., 2012 WL 698792, at *2 (quoting

Champion Boxed Beef Co., 24 F.3d at 87). Thus, where an award “draws its essence

from the collective bargaining agreement,” it must be enforced. Litvak Packing Co. v.

United Food & Commercial Workers, Local Union No. 7, 886 F.2d 275, 276 (10th Cir.

1989) (citing United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593,

597 (1960)). “To show less deference would risk ‘improperly substitut[ing] a judicial

determination for the arbitrator’s decision that the parties bargained for.’” San Juan

Coal, 2012 WL 698792, at *2 (quoting Major League Baseball Players Ass’n v. Garvey,

532 U.S. 504, 509 (2001)).


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Summary judgment is proper where there “is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Morris v. City of

Colorado Springs, 666 F.3d 654, 660 (10th Cir. 2012) (quoting FED. R. CIV. P. 56(a)).

Courts should be particularly diligent about enforcing summary judgment’s purpose of

“provid[ing] against the vexation and delay which necessarily come from the formal trial

of cases in which there is no substantial issue of fact,” SMS Manufacturing Company v.

U.S.-Mengel Plywoods, 219 F.2d 606, 607 (10th Cir. 1955), when, as here, the parties

have bargained for “efficient, inexpensive, and expeditious” resolution of disputes

through arbitration, Alexander, v. Gardner-Denver Company, 415 U.S. at 36, 58 (1974);

King Soopers, 222 F.3d at 1225-26 (affirming grant of summary judgment and

enforcement of arbitration award and recognizing that parties “contract for an arbitrator

to resolve their disputes, not a court”).

II. THE AWARDS DRAW THEIR ESSENCE FROM THE POLICY.

Plaintiffs assert that the Awards should be vacated because the Hearing Officer

exceeded his authority by failing to “abide by the burdens of proof set forth in the

Steroid Policy.” (Mem. at 12.)4 This allegation should be rejected as an impermissible

4 Plaintiffs seek to vacate the Awards under both the LMRA and the FAA. However, “issues involving arbitration of collective bargaining agreements” are “governed by the labor statutes rather than the FAA.” Bowen v. Amoco Pipeline Co., 254 F.3d 925, 935 n.5 (10th Cir. 2001). Although courts reviewing arbitration awards under the LMRA have sometimes looked to the FAA for guidance, it does not directly govern their review, and labor awards may not be vacated based solely on FAA grounds. See Int’l Chem. Workers Union v. Columbian Chems. Co., 331 F.3d 491, 494 (5th Cir. 2003); Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 221 (2d Cir. 2002) (“[T]he substantive law fashioned under [LMRA] § 301 is ‘analytically distinct’ from the provisions of the FAA and . . . it would be error to collapse the analysis under the two statutes.”) (quoting Coca-Cola Bottling Co. v. Soft Drink & Brewery Workers Union Local 812, 242 F.3d 52, 53 (2d Cir. 2001)).


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attempt to re-litigate Plaintiffs’ appeals and because Plaintiffs cannot prove that the

Awards do not “draw their essence” from the Policy.

“Courts are not authorized to reconsider the merits of any award even though the

parties may allege that the award rests on errors of fact or on misinterpretation of the

contract.” King Soopers, 222 F.3d at 1226 (10th Cir. 2000) (quoting Misco, 484 U.S. at

36). “As long as the arbitrator is even arguably construing or applying the contract and

acting within the scope of his authority, that a court is convinced he committed serious

error does not suffice to overturn his decision.” Kennecott Utah Copper Corp. 186 F.3d

at 1267 (citing Misco).

Plaintiffs ask the Court to “reconsider the merits” of the Awards by asserting that

the NFL failed to meet its burden to demonstrate that the players’ specimens were

“collected and analyzed” “in accordance with the” Policy. (Mem. at 12.) Relying on the

same evidence they provided to the Hearing Officer, Plaintiffs argue that the Williams

Award should be vacated based on alleged “gaps” and “discrepancies” on dates and

signatures following the collection of Williams’ specimen. (Mem. at 4-7.) Plaintiffs

similarly allege, as they did below, that the Award upholding McBean’s suspension

should be vacated because of inconsistencies in the dates on McBean’s laboratory

packets and because the specimen collector failed to comply with collection protocol.

(Mem. at 14-15.) According to Plaintiffs, the Hearing Officer “ignored the Steroid Policy

and failed to place the burden on the NFL to prove that the departures from the required

procedures did not materially affect the validity of the tests.” (Mem. at 16.)

In fact, the Hearing Officer considered each of the Plaintiffs’ arguments and

found that the NFL had met its burden to establish a prima facie violation of the Policy


19

based on evidence that the players manipulated their specimens. (Ex. K at 5-6, Ex. J at

3.) The Hearing Officer also considered the Plaintiffs’ arguments regarding purported

departures from the collection protocols and, contrary to Plaintiffs’ assertions,

acknowledged that the evidence introduced by the players shifted the burden to the

League to demonstrate that any departures from the Policy’s protocols did not materially

affect the validity of the Plaintiffs’ violations. (See Ex. K at 6, Ex. J at 7-8.) Applying his

factual findings to these standards, the Hearing Officer determined that the NFL had

satisfied its burden. (Ex. K. at 5-6, Ex. J at 3.)

These holdings, based on the Hearing Officer’s unassailable fact finding and

interpretation of the Policy, cannot be relitigated here. Burlington N. & Santa Fe Ry. v.

Public Serv. Co., 636 F.3d 562, 568 (10th Cir. 2010) (“The finality of any arbitration

award would be meaningless if a losing party could re-litigate its dispute in court by

claiming an arbitrator exceeded his or her authority.”); Hosier v. Citigroup Global Mkts.,

Inc., --- F. Supp. 2d ---, 2011 WL 6413812, at *3 (D. Colo. Dec. 21, 2011) (rejecting

efforts to “re-litigate merits of the case;” the court “is not permitted to . . . review” the

evidence to determine whether it supported the arbitrator’s conclusions). The Players

do not allege that, in finding the NFL carried its burden, the Hearing Officer was not

“arguably construing” or applying the terms of the Policy. They merely argue that the

Hearing Officer “got it wrong” by misapplying the evidentiary standards under the Policy.

But that is not enough to vacate an arbitration award. Furr’s Supermarkets, Inc. v.

United Food & Commercial Workers Union, Local 1564, Nos. 97-2002, 97-2020, 1997

WL 699063, at *6 (10th Cir. Nov. 10, 1997) (“An arbitrator’s decision allocating the

burden of proof among the parties or in fixing the legal framework for evaluation of a


20

grievance ordinarily cannot be reviewed in federal court.”) (quoting Sullivan, Long &

Hagerty, Inc. v. Local 559 Laborers’ Int’l Union, 980 F.2d 1424, 1429 (11th Cir. 1993)).

III. THE AWARDS CANNOT BE VACATED BASED ON BIAS.

Plaintiffs’ assertions of bias also fail because the claim has been waived and

because there is no evidence demonstrating “actual bias” by the Hearing Officer.

Plaintiffs contend that the Hearing Officer, “an NFL employee for over twenty years, was

partial to the NFL.” (Mem. at 23.) This allegation, which was known to the Players at

the time of the hearing, does not establish a basis for vacatur.

“‘[T]he parties to an arbitration choose their method of dispute resolution, and

can ask no more impartiality than inheres in the method they have chosen.’” Black v.

Nat’l Football League Players Ass’n, 87 F. Supp. 2d 1, 6 (D.D.C. 2000) (quoting Merit

Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 679 (7th Cir. 1983)). Where, as here, a

party agrees to the method of selection of an arbitrator, that party cannot later claim bias

on that ground. See, e.g., Williams v. Nat’l Football League, 582 F.3d 863, 886 (8th Cir.

2009) (declining to vacate arbitration award issued by NFL general counsel where

Union “agree[d] in the CBA that the Commissioner’s designee . . . could serve as

arbitrator”).

National Hockey League Players’ Association v. Bettman, No. 93 Civ. 5769

(KMW), 1994 WL 738835, at *16 (S.D.N.Y. Nov. 9, 1994) (Mag. Judge’s report &

recommendation adopted by court order (ECF No. 45) (Dec. 14, 1995)) is directly on

point. In that case, the National Hockey League Players’ Association (“NHLPA”)

challenged an award that determined the validity of offer sheets signed by two NHL

players. Id. at *1. The parties agreed in the collective bargaining agreement that the

Commissioner would resolve such disputes. Id. The NHLPA argued, however, that the


21

award should be vacated because of the Commissioner’s “inherent bias” as

representative for the NHL’s owners. Id. The court rejected the union’s argument.

Because any “inherent tendency” by the arbitrator to favor a particular position “was fully

known or knowable to the Association at the time that it signed the Agreement, it cannot

now be heard to complain about this asserted bias.” Bettman, 1994 WL 738835 at *14.

Similarly, in Williams, the NFLPA moved to vacate awards upholding player

suspensions under the same Steroid Policy at issue here. Nat’l Football League

Players Ass’n v. Nat’l Football League, 654 F. Supp. 2d 960 (D. Minn. 2009). The court

rejected the NFLPA’s contention that the NFL’s general counsel, acting as the

Commissioner’s designee, was biased, reasoning that the union had “agreed to a

certain amount of partiality in the arbitrator” when it entered the collective bargaining

agreement and that this did not provide a basis to vacate the awards. Id. at 968.

Here, Plaintiffs’ union negotiated and agreed that the NFL Commissioner or his

designee would decide appeals of discipline under the Steroid Policy. (Ex. A at 110.)

Plaintiffs cannot now use this bargain as a basis to overturn the Awards.

Plaintiffs’ bias claim also has been waived because the players never raised any

bias objection during their hearings or before the Hearing Officer issued the Awards. A

party waives its bias claim where the party knows “of the facts in question” giving rise to

the claim “prior to the decision of the arbitrator[] and [takes] no action.” Pub. Serv. Co.

of Okla. v. Burlington N. R.R., 69 F.3d 548, No. 95-5017, 1995 WL 640375, at *5 (10th

Cir. Oct. 20, 1995). “[C]ourts will not entertain a claim of arbitral bias where it could

have been but was not raised at the arbitration hearing.” Wilson Foods Corp. v. United

Foods & Commercial Workers Int’l Union, No. 84-A-1785, 1985 U.S. Dist. LEXIS 23264,


22

at *13 (D. Colo. Jan. 21, 1985); see also Ohlfs v. Charles Schwab & Co., No. 08-cv-

00710-LTB, 2012 WL 202776, at *3 (D. Colo. Jan. 24, 2012) (party waives arbitrator

bias claim where “a party has knowledge of facts suggesting bias or partiality on the

part of an arbitrator but fails to object on this basis prior to the entry of an award”). Such

a rule “prevents parties from delaying objections until significant resources have been

devoted to arbitrating the merits of the controversy.” Ohlfs, 2012 WL 202776, at *3.

Here, both players knew that either the Commissioner “or his designee” would

decide their appeals. (Ex. A at 110 (“either the Commissioner or his designee will

preside as Hearing Officer” over disciplinary appeals).) At the start of the hearing, the

Hearing Officer reminded the parties that he was sitting pursuant to a designation by

Commissioner Goodell (Ex. C at 4 (introducing himself and noting that “I am designated

by the Commissioner as the Hearing Officer of this appeal case”); Ex. D at 4 (same)),

and counsel for both players were aware of the Hearing Officer’s employment with the

League (Exs. H, I). Nonetheless, neither Plaintiff raised any objection that the Hearing

Officer’s relationship with the NFL rendered him biased. Rather, both Plaintiffs chose to

stand silent until they lost and then raised the bias claim for the first time in their

Petition. This is the very definition of waiver, and their claim should be dismissed.

Even if Plaintiffs’ bias claim were not waived, it fails on the merits. An arbitration

award may not be vacated based on “the appearance of bias,” Wilson Foods Corp.,

1985 U.S. Dist. LEXIS 23264, at *10, but only based on evidence of “actual bias” by the

arbitrator. Amicorp v. Gen. Steel Domestic Sales, LLC, No. 07-cv-01105-LTB-BNB,

2007 WL 2890089, at *3-4 (D. Colo. Sept. 27, 2007) (citing Ormsbee Dev. Co., 668 F.2d

1140). “Actual bias” requires the moving party to provide “clear evidence of


23

impropriety,” Amicorp., 2007 WL 2890089, at *4, that is “direct, definite and capable of

demonstration rather than remote, uncertain, or speculative,” Ormsbee Dev., 668 F.2d

at 1147, 1150, cert. denied, Grace v. Santa Fe Pac. R.R., 459 U.S. 838 (1982).

On their face, Plaintiffs’ speculative claims of bias do not establish the “actual

bias” necessary to vacate the Awards. (See Mem. at 23 (“The only reasonable

conclusion in these cases is that Mr. Henderson, an NFL employee for over twenty

years, was partial to the NFL.”); see also ECF No. 42 at 4 (“The Players do not yet know

the extent of Mr. Pash’s influence on Mr. Henderson and [his] decisions.”).)

IV. THE HEARING OFFICER DID NOT ENGAGE IN MISCONDUCT.

There is similarly no basis for Plaintiffs’ contention that the Awards should be

vacated because the Hearing Officer “engaged in ex parte communications with the

NFL’s second ranking executive, [took] direction from that NFL-executive, and fail[ed] to

issue a timely ruling.” (Mem. at 16.) To the extent a conversation between the Hearing

Officer and counsel to the Commissioner could even be viewed as “ex parte,” Plaintiffs

cannot show that the discussion adversely affected the outcome of the Awards.

Moreover, once Plaintiffs asked the Hearing Officer to dismiss their suspensions based

on his delay in issuing the Awards, they waived any right to seek review of his ruling on

that question. The Hearing Officer’s ruling that he had the right to issue his Awards at a

later date must be afforded the same deference as the Awards themselves.

A. The Alleged “Ex Parte” Communication Does Not Provide A Basis For Vacatur.

Plaintiffs claim that the Awards are tainted because Jeff Pash, the NFL’s general

counsel, “engaged in ex parte communications with [the Hearing Officer] about the

Players’ cases and, during that conversation, Mr. Pash instructed [the Hearing Officer]


24

to delay rendering the Arbitration Awards.” (Mem. at 9.) But Plaintiffs cannot

demonstrate how this conversation even constitutes an ex parte communication. As the

Commissioner’s designee, Mr. Henderson was fully permitted to discuss the case with

the Commissioner or, in this case, the attorney who advises the Commissioner. Where

a party agrees to arbitration in circumstances such as this, such communications should

be expected. See Delta Mine Holding Co. v. AFC Coal Props., Inc., 280 F.3d 815, 823

(8th Cir. 2001) (finding that it was “expected” that a party-appointed arbitrator would

communicate with the party appointing him). In Bettman, for instance, the NHLPA

argued that the Commissioner should have disqualified himself as arbitrator because he

had offered advisory opinions and advice to team officials concerning the issues in the

arbitration. The court dismissed this argument as “misguided” because “plaintiff does

not suggest that at the time that it signed the [collective bargaining agreement], it was

ignorant of the fact that the League office gives advice to the teams on League rules.”

Bettman, 1994 WL 738835, at *30. Here too, given that the Hearing Officer serves as

the Commissioner’s designee to decide appeals under the Policy, it follows that NFL

executives might communicate with him regarding the appeals.

Even if the conversation did constitute an “ex parte communication,” Plaintiffs

cannot prove, as they must, that the communication influenced the outcome of the

Awards. Kennecott Utah Copper Corp., 186 F.3d at 1271-72 (“ex parte

communications” not grounds for vacatur absent showing that the communication

prejudiced the losing party by negatively affecting the award’s outcome); Remmey v.

PaineWebber, Inc., 32 F.3d 143, 149 (4th Cir. 1994); M & A Elec. Power Co-op. v. Local

Union No. 702, 977 F.2d 1235 (8th Cir. 1992) (“the party seeking a vacation of an award


25

on the basis of ex parte conduct must demonstrate that the conduct influenced the

outcome of the arbitration”). A party does not suffer prejudice sufficient to overturn an

arbitration award where, as here, the ex parte contact does not add “anything adverse

to [the plaintiff] that the award had not already said or necessarily implied.” Kennecott

Utah Copper Corp. at 1271; see also Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc.,

10 F.3d 753, 759 (11th Cir. 1993) (denying request to vacate arbitration award based on

arbitrator’s ex parte communications, where the moving party did not prove that the

arbitrators “based their deliberations and award on anything other than the evidence of

record”). “The mere possibility of prejudice is insufficient to justify setting aside” an

award. Winfrey v. Simmons Food, Inc., 495 F.3d 549, 553 (8th Cir. 2007).

An ex parte conversation pertaining to a procedural matter such as the timing of

the arbitrator’s decision cannot, as a matter of law, provide grounds for vacatur. See

Remmey v. PaineWebber, Inc., 32 F.3d 143, 149 (4th Cir. 1994) (alleged ex parte

conversation between arbitrator and party about procedural matter insufficient to

demonstrate bias because it did not affect the outcome of the award); Polin v. Kellwood

Co., 103 F. Supp. 2d 238, 263 (S.D.N.Y. 2000) (conversation between arbitrator and

party regarding “procedures, scheduling, arranging for transcripts” was not improper).

As the court explained in Bettman:

[D]ecisions that have voided an arbitrator’s award based on ex parte contacts have typically involved a very different scenario, in which the arbitrator obtains evidence from one party, without notice to the other parties, and then relies on that evidence in reaching his decision. In those instances in which the arbitrator has not been shown to have sought and obtained information on an ex parte basis and then relied on it, the fact that he has discussed the case or the underlying issues separately with one side to the controversy is not a sufficient basis for disqualification since no prejudice can be shown.


26

Bettman, 1994 WL 738835, at *26 (citing M & A Elec. Power, 977 F.2d at 1237-38)

(internal citations omitted).

Here, Plaintiffs’ sole allegation is that the so-called ex parte conversation resulted

in delay. (Pet. ¶ 101; Mem. at 16-17.) Plaintiffs make no allegation that the Hearing

Officer engaged in a communication about the substance of the case or that any

communications negatively affected the outcome of the Awards. Their post-hoc

objections to the delay of the Awards is not a basis for vacatur.

Moreover, by Plaintiffs’ own admission (ECF No. 42 at 4), any claim by Plaintiffs

that the Hearing Officer’s decision on the merits was influenced by his conversation with

Pash would be purely speculative and insufficient to sustain their burden to demonstrate

bias and misconduct to vacate the Awards, Ormsbee Dev. Co., 668 F.2d at 1150 (bias

must be “direct, definite and capable of demonstration rather than remote, uncertain, or

speculative”); Amicorp, 2007 WL 2890089 at *5 (“speculative” claims of arbitrator bias

“cannot sustain a vacatur of [an] arbitration award”), aff’d 284 Fed. Appx. 527 (10th Cir.

2008); see also Winfrey, 495 F.3d at 553 (denying party’s motion to vacate arbitration

award where party could not prove that alleged partiality of party-selected arbitrator

“prejudiced [the party’s] ability to present its case, or in any way affected the award”).

B. The Timing of The Awards Is Not A Basis For Vacatur.

Plaintiffs’ contention that the Awards should be vacated because the Hearing

Officer issued the Awards more than five days after the close of the records also fails to

meet Plaintiffs’ heavy burden.

As a threshold matter, the players have waived their right to challenge the

Hearing Officer’s authority to issue a decision more than five days after the record


27

closed by asking the Hearing Officer to rule on this question. Kennecott Utah Copper

Corp., 186 F.3d at 1267-68. Once a party submits a question to the arbitrator for

consideration, that decision “is entitled to the same ‘extreme deference’ as [his]

determinations on the merits.” Burlington N. & Santa Fe Ry. Co., 636 F.3d at 568.

Indeed, “federal courts are to give even greater deference to an arbitrator’s decision on

matters of procedure . . . [which] lie solely within the discretion of the arbitrator.”

Kennecott Utah Copper Corp., 186 F.3d at 1267 (quoting United Steelworkers of Am. v.

Ideal Cement Co., 762 F.2d 837, 841 (10th Cir. 1985)).

The Tenth Circuit’s decision in Kennecott Utah Copper Corporation v. Becker,

186 F.3d 1261, 1267-68 (10th Cir. 1999) is instructive. There, the parties’ collective

bargaining agreement required the union to submit grievances within 15 days of the

incident giving rise to the grievance. Id. at 1267. The arbitrator rejected the employer’s

claim that the union had failed to comply with this requirement, and the district court

confirmed the award. Id. On appeal, the employer urged the Court to review the

arbitrator’s ruling on timeliness “nondeferentially” based on its position that timeliness

should be treated as a jurisdictional requirement. Id. The Tenth Circuit disagreed,

noting that the CBA did not “specify the consequences of filing a grievance late,” and

finding that, by submitting the question of timeliness to the arbitrator, the employer had

“waived any right to de novo judicial review” of that issue. Id. at 1268. The Court

“accepted without review the arbitrator’s factual findings bearing on timeliness” and

considered whether the arbitrator “arguably constru[ed]” the contract “only to ensure

that any dubious interpretation or application of a CBA’s time limits was at worst a

‘serious error,’ and not evidence that the arbitrator completely disregarded the CBA in


28

order to ‘dispense his own brand of industrial justice.’” Id. (quoting United Steelworkers

v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960)). Applying this deferential

standard of review, the court upheld the arbitrator’s ruling. Id.; see also Swinerton &

Walberg Co. v. United Ass’n of Journeymen & Apprentices, 806 F. Supp. 913, 916-17

(D. Colo. 1992) (recognizing that questions of procedure must be made by the arbitrator

and refusing to vacate award based on arbitrator’s interpretation of time limits for

seeking arbitration).

As in Kennecott, the Policy does not “specify the consequences” of the Hearing

Officer’s failure issue a decision within five days. Plaintiffs submitted motions to dismiss

to the Hearing Officer, challenging his jurisdiction to issue Awards more than five days

after the players’ hearings. The Hearing Officer denied the players’ motions, ruling that

he delayed his decisions to “afford an opportunity for the parties to the governing

collective bargaining agreement, the NFL and the NFLPA, to explore an agreed

resolution of this dispute . . . consistent with past practice.” (Ex. H; see also Ex. I

(decision delayed “pending discussions by the parties to the governing collective

bargaining agreement . . consistent with past practice where those parties saw fit to

explore amicable resolution of the dispute prior to a decision by the hearing officer”).)

The Hearing Officer construed the Policy’s time limit provision, including the

absence of any language revoking his jurisdiction following expiration of the five-day

period and based on his consideration of the parties’ past practice. That interpretation,

and the Hearing Officer’s fact finding, must be “accept[ed] without review.” Kennecott


29

Utah Copper Corp., 186 F.3d 1261 at 1267.5 Indeed, Plaintiffs fail to cite any case

vacating an award based on the arbitrator’s delay in issuing the award when the parties

did not expressly agree that the failure to issue an award within the specified time

period revokes the arbitrator’s jurisdiction. To the contrary, courts consistently recognize

that where, as here, an arbitrator issues a decision after the time period set forth in the

agreement, that decision will not be overturned absent explicit language in the parties’

agreement terminating the arbitrator’s authority. See, e.g., Local Union 560, Int’l Bhd. of

Teamsters v. Anchor Motor Freight, Inc., 415 F.2d 220, 226 (3d Cir. 1968) (“The

requirements of federal labor policy will be served by requiring that if the parties intend

to provide for the automatic invalidation of a late award they must say so in unequivocal

language.”); see also McKesson Corp. v. Local 150 IBT, 969 F.2d 831, 834 (9th Cir.

1992) (“An arbitrator could quite reasonably have concluded that the time limit was

precatory and did not limit his authority to issue an award after the 60 day period had

run.”). No such explicit language exists here, as the parties’ past practice

demonstrates. See, e.g., Williams, 582 F.3d at 871 (hearing officer issued awards

under the Steroid Policy more than five days after the hearing, and the players’ attorney

– the Plaintiffs’ attorney here – did not object).

Nor is there any merit to Plaintiffs’ assertion that Award should be vacated

because the timing of the Award was “fundamental[ly] unfair[].” (Mem. at 16.) “A

fundamentally fair hearing requires only notice, opportunity to be heard and to present

5 In fact, although Plaintiffs erroneously rely on Colorado state law, United Ass’n of Journeymen & Apprentices of the Plumbing & Pipe Fitting Indus., Local No. 57 v. Bechtel Power Corp., 834 F.2d 884, 888 (10th Cir. 1987), even the case Plaintiffs cite recognizes that “the time requirements for the issuance of an award are directory, not mandatory and jurisdictional.” Sopko v. Clear Channel Satellite Servs., 151 P.3d 663, 666 (Colo. Ct. App. 2006); (Mem. at 17).


30

relevant and material evidence and argument before the decision makers, and that the

decisionmakers are not infected with bias.” Bowles v. Fin. Group, Inc., 22 F.3d 1010,

1012-13 (10th Cir. 1994). Plaintiffs’ speculative claims that they will be prejudiced by

the timing of the Awards “because their salaries will be higher in the 2012 season than

in the 2011 season” (Mem. at 18), and about the impact on the Broncos’ likelihood of

success in 2012 (id. at 17-18), even if true, do not meet this standard. Indeed, “[l]osing

the case later, rather than sooner, does not justify the setting aside of an arbitration

award.’” Green v. Ameritech Corp., 12 F. Supp. 2d 662, 665 (E.D. Mich. 1998), rev’d on

other grounds, 200 F.3d 967 (6th Cir. 2000)); see also, e.g., City of New Orleans v.

United Transp. Union, 170 L.R.R.M. 3112 (E.D. La. 2002) (upholding award though

delay in issuance of award increased amount of back pay due).

In any event, Plaintiffs’ post-hoc assertions that the Hearing Officer’s delay in

issuing the Awards resulted in prejudice rings hollow. In fact, attorneys for both players

requested to postpone the hearing dates assigned by the NFL. (See Ex. A at 27; Ex. D

at 7-8.) Tellingly, Plaintiffs did not raise an objection to the until January 14, 2012, more

than a month after the close of the hearings and exactly two days after the Broncos

were eliminated from the playoffs.6 Surely, had Plaintiffs wanted to obtain a decision on

their appeals on an expedited basis, no requests for additional time would have been

made, and the parties would have inquired about the decisions prior to the conclusion of

the Broncos’ season. Int’l Shipping Agency, 21 F. Supp. 2d at 105 (denying motion to

6 The NFL respectfully requests that this Court take judicial notice of the 2011-2012 game schedules publicly posted on the NFL’s website, http://www.nfl.com/teams/denverbroncos/schedule?team=DEN&id=1400. See, e.g., O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1224-25 (10th Cir. 2007) (Taking judicial notice of information posted on party’s website and observing, “It is not uncommon for courts to take judicial notice of factual information found on the world wide web.”).


http://www.nfl.com/teams/denverbroncos/schedule?team=DEN&id=1400�

31

vacate based on delay; “had plaintiff been genuinely concerned about the amount of

time the arbitrator was taking to render his award, plaintiff could have” objected sooner).

V. THE AWARDS DO NOT VIOLATE PUBLIC POLICY.

Plaintiffs also argue that the Awards should be vacated because they “contradict

the established laws of the international sports community and the public policy

underlying those laws.” (Mem. at 17.) Plaintiffs’ argument misapprehends what

constitutes a “violation of public policy” sufficient to overturn an arbitration award. In

any event, there is no public policy that requires vacatur of the Awards.

The circumstances under which an arbitral award may be vacated on public

policy grounds are exceedingly narrow. See, e.g., Misco, 484 U.S. at 43 (observing that

Supreme Court precedent “does not . . . sanction a broad judicial power to set aside

arbitration awards as against public policy); E. Assoc. Coal Corp. v. Mine Workers of

Am., Dist. 17, 531 U.S. 57 (2000); Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1151

(10th Cir. 2007) (“We have emphasized the narrow application of the public policy

exception . . . .”). An award must be upheld unless it violates an “explicit public policy”

that is “well-defined and dominant.” Misco, 484 U.S. at 43 (quoting W.R. Grace & Co. v.

Int’l Union of Rubber Workers, 461 U.S. 757, 766 (1983)); E. Assoc. Coal Corp., 531

U.S. at 62. The relevant policy must be “ascertained ‘by reference to the laws and legal

precedents and not from general considerations of supposed public interests.’” Id.

Plaintiffs argue that the Awards violate public policy because the Hearing Officer

did not accept their arguments that certain alleged deficiencies in the testing process

materially affected the validity of their violations. (Mem. at 18-19.) This argument

misapplies the public policy exception. The exception does not permit a court to

“second guess the arbitrator’s findings or conclusions.” See, e.g., Denver & Rio Grande


32

W. R.R. v. Union Pac. R.R., 119 F.3d 847, 850 (10th Cir. 1997) (refusing to assess

findings of arbitrator under public policy exception). The court asks “only whether the

award itself (i.e., reinstatement), and not the underlying reasons for the award, violate

public policy.” Kennecott Utah Copper Corp., 195 F.3d at 1205.

Plaintiffs’ public policy arguments are based solely on their contention that the

Hearing Officer’s factual findings and legal interpretations are inconsistent with Plaintiffs’

view of the facts and the law. (Mem. at 18-19.) Plaintiffs do not and cannot allege that

enforcing the Awards themselves (i.e., the players’ suspensions) would violate the law

or some “explicit . . . well-defined, and dominant” public policy. Misco, 484 U.S. at 43.

Because Plaintiffs’ alleged “[e]rrors in either the arbitrator’s factual findings or his

interpretation of the law . . . do not justify review or reversal on the merits of the

controversy,” their argument fails. Denver & Rio Grande W. R.R., 119 F.3d at 849.

Plaintiffs’ public policy arguments further fail because there is no “explicit . . . ,

well-defined and dominant” public policy that would be violated if the Court enforced the

Awards. Plaintiffs do not identify any domestic law or policy to support their argument.

Instead, they rely on two arbitral decisions from the Court of Arbitration for Sport that

they claim reflect the “established laws of the international sports community.” (Mem. at

17.)7 These decisions do not constitute an “explicit, well-defined, and dominant” public

policy sufficient to overturn an arbitral award. Misco, 484 U.S. at 43.

The Court of Arbitration for Sport is a non-governmental organization that offers

arbitration services to sports-related bodies “only insofar as the statutes or regulations

7 Plaintiffs also rely on press reports regarding an arbitral decision made under Major League Baseball’s drug program. (Mem. at 18.) These arguments are irrelevant because the decision interprets a different drug policy under different arbitral procedures and has no binding effect here.


33

of the said sports-related bodies or a specific agreement so provide.” See Code of the

Court of Arbitration for Sport, Art. A, § 1 (2004 ed.) (available at: http://www.tas-

cas.org/statutes). It does not purport to create “established law[] of the international

sports community” for entities, such as the NFL and NFL Players Association, that do

not agree to be bound by its decisions. Id. Nor could it. Private arbitral decisions do

not have the force and effect of law on entities that are not parties to the dispute. See,

e.g., Comedy Club, Inc. v. Improv W. Assoc., 553 F.3d 1277, 1287 (9th Cir. 2009).

In short, there is no “explicit . . . well-defined and dominant” law that imposes a

strict liability requirement on drug testing procedures, and Plaintiffs’ public policy

argument therefore fails as a matter of law.

VI. THE HEARING OFFICER DID NOT “MANIFESTLY DISREGARD” THE LAW.

Plaintiffs next contend that the Awards should be vacated because the Hearing

Officer manifestly disregarded the law of criminal procedure with respect to chain of

custody. An arbitrator’s disregard of the law is not a ground for vacatur under the

LMRA. Even if it were, Plaintiffs’ allegations fall far short of the conscious disregard of

clearly applicable law necessary to satisfy the standard.

Following the Supreme Court’s decision in Hall Street Associates, LLC v. Mattel,

Inc., 552 U.S. 576 (2008), it is an open question in this Circuit whether manifest

disregard of the law is even a proper ground for vacating an arbitration award under the

FAA. Hosier v. Citigroup Global Mkts., Inc., --- F. Supp. 2d ---, 2011 WL 6413812, at *3

(D. Colo. Dec. 21, 2011). It certainly should not be extended to the LMRA context,

where the Supreme Court has held that an arbitration award must be confirmed unless

“the arbitrator strays from interpretation and application of the agreement and effectively

dispense[s] his own brand of industrial justice.” Major League Baseball Players Ass’n v.


34

Garvey, 532 U.S. 504, 509 (2001) (per curiam) (internal quotation marks omitted;

alteration in original).

But even if a labor arbitration award could be vacated for an arbitrator’s manifest

disregard of the law, Plaintiffs’ allegations fall woefully short. As this Court has recently

explained, “manifest disregard requires a party to establish that the arbitrators acted

with ‘willful inattentiveness to the governing law’; that is, ‘the record must show the

arbitrators knew the law and explicitly disregarded it.’” Hosier, 2011 WL 6413812, at *3

(quoting Hollern v. Wachovia Sec., Inc., 458 F.3d 1169, 1176 (10th Cir. 2006)). Plaintiffs’

claim that the Hearing Officer disregarded criminal procedure law governing the

admission of evidence in a criminal trial comes nowhere close to alleging “willful”

inattentiveness to “governing” law. Hollern, 458 F.3d at 1176.

Even if such law were applicable, which it clearly is not, Plaintiffs have not

alleged the arbitrator knew that law was applicable and willfully disregarded it. Hollern,

458 F.3d at 1176 (for manifest disregard, “the record must show the arbitrators knew the

law and explicitly disregarded it”). Nor could they; nothing in the record references

criminal procedure law. Hosier, 2011 WL 6413812, at *4 (no manifest disregard where

plaintiff “does not claim that it presented these cases to the [arbitrator], and there is no

evidence that the [arbitrator] was aware of this supposedly controlling law”).

Furthermore, the law of criminal procedure is not “governing” for the resolution of

Plaintiffs’ Policy violations. Plaintiffs are not claiming error in the admission of real

evidence during the hearings. See Hosier, 2011 WL 6413812, at *4 (federal securities

law not governing when arbitration addressed state-law claims). The Policy specifies

the standard by which any errors in the chain of custody are to be evaluated: “the


35

League shall have the burden of establishing that the departure [from the Steroid Policy

protocols] did not materially affect the validity of the positive test or other violations.”

(Ex. A at 110.) The Hearing Officer applied that standard. (Ex. J at 3, Ex. K at 6.)

CONCLUSION

For the foregoing reasons, this Court should grant summary judgment in favor of

the NFL.

Dated: April 17, 2012

Respectfully submitted, s/ Steven T. Collis John Husband Steven T. Collis Holland & Hart LLP 555 17th St., Suite 3200 Denver, CO 80202 Phone: (303) 295-8228 Fax: (303) 975-5381 [email protected] [email protected]

Daniel L. Nash Stacey R. Eisenstein (admission pending) Marla S. Axelrod (admission pending) AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Ave., N.W. Washington, DC 20036 Phone: (202) 887-4067 Fax: (202) 887-4288 [email protected] [email protected] [email protected] ATTORNEYS FOR DEFENDANT


36

CERTIFICATE OF SERVICE

I hereby certify that on April 17, 2012, I have caused to be electronically filed the foregoing with the Clerk of Court using CM/ECF system which will send notification of such filing to the following e-mail addresses:

Marci Gilligan Ridley McGreevy & Winocur, PC 303 16th St., Suite 200 Denver, CO 80202 [email protected] Peter R. Ginsberg Peter R. Ginsberg Law, LLC 12 E. 49th St., 30th Fl. New York, NY 10017 [email protected] Harvey Steinberg Springer & Steinberg, PC 1600 Broadway, Suite 1200 Denver, CO 80202 [email protected] Peter J. Schaffer 400 S. Steele St., Suite 47 Denver, CO 80209 [email protected]

s/ Steven T.Collis John Husband Steven T. Collis Holland & Hart LLP 555 17th St., Suite 3200 Denver, CO 80202 Phone: (303) 295-8228 Fax: (303) 975-5381 [email protected] [email protected]

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