Marquette Law Review Volume 97 Article 7 Issue 2 Winter 2013

Making the Right Call: Why Fairness Requires Independent Appeals in U.S. Professional Sports Leagues Jeremy R. Abrams [email protected]

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Repository Citation Jeremy R. Abrams, Making the Right Call: Why Fairness Requires Independent Appeals in U.S. Professional Sports Leagues, 97 Marq. L. Rev. 469 (2013). Available at: http://scholarship.law.marquette.edu/mulr/vol97/iss2/7

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 34609-mqt_97-2 Sheet No. 132 Side A 03/17/2014 11:30:34 PM

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OWER INOWER THE ...... 495 P ...... 475 OCUMENTS D LEAGUES LEAGUES OMMISSIONER C ROCESS P ) 3/10/2014 ...... 471 OVERNING ELETE G D OT OT N O ISCIPLINARY (D MAKING THE RIGHT CALL: WHY CALL: RIGHT THE MAKING

A. Beginnings of the Commissioner in the MLB ...... 475 ...... the MLB in A. Beginnings of the Commissioner 482 ...... B. History and Issues with the NFL’s Commissioner 488 ...... The NBA C. The Basketball Czar: Commissioner 493 ... D. The Most Recent Development: The NHL Commissioner D A. The MLB’s Governing Documents ...... 495 ...... A. The MLB’s Governing Documents 497 ...... B. The NFL’s Governing Documents -10 URRENT STABLISHMENT OF STABLISHMENT FAIRNESS FAIRNESS REQUIRES INDEPENDENT C

Historically, the commissioners of the U.S. professional sports league

NTRODUCTION E M K

I

BRAMS C Y APPEALS APPEALS IN U.S. PROFESSIONAL SPORTS III. integrity of sport, this Comment body, the proposes American Sports Arbitral Tribunal (ASAT), a which would hear new independent arbitral the disciplinary appeals from these U.S. professional least removing the potential sports conflict of interest within leagues, the current systems. at Finally, this associations Comment would have to help create concludes and incorporate likely this will not ASAT, because that nearly but all of the collective bargaining negotiations the involve mainly monetary distribution. Unfortunately, this may lead to the leagues and public losing faith in these sports leagues. players’ I. have had a duty to preserve the integrity of the leagues. Developing from this concept through players’ collective associations, the disciplinary systems of the bargaining leagues are designed between to keep conflicts out of the U.S. courts. Recently, these systems have come the leagues and under considerable public effectiveness and, in some scrutiny cases, the integrity of questioning the sports. commissioners Specifically, there and have been issues their with conflict of interest of the fairness commissioners and and arbitrary decision-making This Comment in explores the disciplinary disciplining systems of players. the four professional major sports U.S. leagues to determine whether they currently preserve justice. It then examines some of the most successful international sports disputes systems as a comparison. To preserve the public’s faith in the

A II. 34609-mqt_97-2 Sheet No. 132 Side A 03/17/2014 11:30:34 03/17/2014 A Side 132 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 132 Side B 03/17/2014 11:30:34

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NITED U

(ASAT) ...... 511 ...... (ASAT) ...... 502 EVIEW THE IN R RIBUNAL T YSTEMS S ...... 510 UDICIAL

J RBITRAL A YSTEM S MARQUETTE LAW REVIEW LAW MARQUETTE ) 3/10/2014 SPECTSOF ...... 519 PORTS NTERNATIONAL NTERNATIONAL A EGAL S I ELETE L D OT OT N O (D

TATES A. The Creation and Maintenance of the ASAT ...... 512 ...... the ASAT of and Maintenance A. The Creation 514 ...... B. The Small Dispute Process 515 ...... C. The Large Dispute Process 517 ...... the Fees D. Funding the ASAT and Understanding 518 the ASAT...... E. The Potential Obstacles to Creating ONCLUSION C. The NBA’s Governing Documents ...... 498 ...... Documents Governing C. The NBA’s 500 ...... DocumentsD. The NHL’s Governing S A. The World’s Largest International Sports Court: CAS ...... 503 ...... Court: CAS Sports International A. The World’s Largest 505 ...... Sports Court: BAT B. The Newest International 507 ...... C. Another National Professional League: Australia’s NRL MERICAN -10 FFECTIVE PPLICABLE C

E A

A

BRAMS VII. VI. IV. V.

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(Apr. 19, 2012), 2012), 19, (Apr. ANK ORBES (Jan. 14, 2013), 2013), 14, (Jan. B F ARDOZO NHL NHL Playoffs 2012: 3

, USTICE J EPORT EWS R N EPORT ROFESSIONAL ROFESSIONAL MERICAN 471 471 Podell & Blum, Blum, & Podell , 11 C P R A See (2d (2d ed. 2008);

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103 , ERVICE Jeff Laniado, Laniado, Jeff S LEACHER LEACHER 2009). 2009).

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, Jan. 6, 2013, NHL Playoffs: Carl Hagelin, Matt Carkner Suspensions Continue M C

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ORRECT ORRECT . , NHL Lockout Is Over, but Will the Fans Come Back? W. LBERT LBERT (C 289–92

NTRODUCTION TO A I infra

, RIC ARR ARR ET AL INAL INAL 289,

H -F . Fairness, consistency, and flexibility: these traits are often associated The 2012 NHL playoffs were the most violent in recent years, partly 3. National Football League (NFL), National Basketball Association (NBA), 4. Major At the time of this writing, the NHL season had been delayed by a collective 1. A 2. Matthew J. Parlow, 5. Matt Brooks, M K SSOCIATED SSOCIATED UNHAM ESOL BRAMS ERSPECTIVES COTT C Y with the United States’ legal system, due to the league office’s inconsistency in doling out discipline. disciplinary systems of American professional sports leagues. http://bleacherreport.com/articles/1484307-8-nhl-teams-facing-a-big-attendance-issues-due-to- the-lockout. The lockout may have once again hindered the NHL from achieving the level same of popularity and power as the NBA, MLB, and NFL. ed. 2012); 10:55 AM), http://www.forbes.com/sites/kurtbadenhausen/2013/01/07/nhl-lockout-is-over-but- will-the-fans-come-back/. A brief view of the NHL’s structural history Part II.D., will be discussed in R S P 2013] 2013] A League Baseball (MLB), and (NHL). League Hockey (MLB), National and Baseball League bargaining dispute that finally ended well into the month of January, taking up nearly half the season. Ira Podell & Ronald A Blum, 95c2ee61e7864e6455367f9d43cab80d. 95c2ee61e7864e6455367f9d43cab80d. In conducting its second lockout in a decade, the NHL has once again limited its fan base and market power, after what appeared to be an upswing in popularity stemming from the 2012 Reasons playoffs. Hockey Is Popular Again in the US Collective Bargaining Disciplining the Disciplinary Systems in Professional Sports: An Attempt to Fix the Arbitrary and Overreaching Disciplinary Powers of Sports Commissioners D Attendance Issues Due to the Lockout http://bleacherreport.com/articles/1152971-2012-nhl-stanley-cup-playoffshow-hockey-has- once-again-become-popular-in-the-us; Steve Silverman, Numerous examples from the four major professional sports leagues Hockey League (NHL) provides several recent examples discussed that first as will an be illustration of some common problems disciplinary systems. with these the United States traits, and many of them demonstrate the lack of these will be discussed in this Comment. While examples from the National Football League (NFL), (MLB), and National Basketball Association (NBA) will be discussed in Part II, the National Badenhausen, Badenhausen, 34609-mqt_97-2 Sheet No. 133 Side A 03/17/2014 11:30:34 03/17/2014 A Side 133 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 133 Side B 03/17/2014 11:30:34

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There Will Boyle Boyle 6 [hereinafter [hereinafter

IGHTING IGHTING AND EWSDAY F , N According to to According 9 However, the the However, 10 (2012–2013)

; Katie Strang, ULES OF

R supra R. 46.2

§ 6, NHL Suspends Hagelin, Carkner When the referees failed to to failed referees the When (Apr. 13, 2012, 10:03 AM), AM), 10:03 2012, 13, (Apr. Podell, Podell, (Apr. 16, 2012, 9:59 AM), AM), 9:59 2012, 16, (Apr. 8 Rangers Vs. Senators, Game 1: Rangers NWRITTEN NWRITTEN ULES See R. 46.16. R. OST

COM R U . P

. HE T ATION note 6, § 4;

Senators’ Matt Carkner Suspended One Game for : FFICIAL ASH note 6, § 6, 6, § note O

, Apr. 15, 2012, http://www.nhl.com/ice/news.htm?id=6 2012, 15, , Apr. http://www.nhl.com/nhl/en/v3/ext/pdfs/2012- ODE (Apr. 15, 2012, 9:36 AM), http://espn.go.com/new- supra C , W , SBN COM Dominik Jansky, Jansky, Dominik note 5. 5. note supra , , Rangers’ Carl Hagelin Suspended 3 Games, Senators’ Matt EAGUE COM HE 73 73 (2006); . See L

ULES , Apr. 15, 2012, http://www.sportingnews.com/nhl/story/2012-04- MARQUETTE LAW REVIEW LAW MARQUETTE supra supra ULES , NHL. , T R ORK available at available R ) 3/10/2014 NHL Y ], EWS Boyle, Dubinsky Move on from Game 2 Sideshow N OCKEY EW ELETE H D ULES FFICIAL FFICIAL ERNSTEIN R OT OT , Apr. 15, 2012, http://www.faceoff.com/suspends+Hagelin+Carkner/6463167/st Apr. 2012, , 15, B N Carkner’s actions subjected him to a minor , a major major a penalty, minor a to him subjected actions Carkner’s O 7 PORTING COM (D , ESPNN

. OSS ATIONAL , S FFICIAL N -10 . 7. R 8. NHL O 9. Arthur Staple, 10. NHL O 6

ETALIATION IN THE BRAMS ACEOFF 13_RuleBook.pdf; Brooks, Brooks, 13_RuleBook.pdf; never threw a punch and was knocked to step in to separate of a fight as the referees traditionally signifies the end the ground, which typically the players, but Carkner kept punching involved. and the referees did not get NHL Rule 46.16, referees have discretion to impose a game misconduct penalty on an intervening player; further, the game misconduct penalty is supposed to be imposed on every additional same player altercation involved in during the the same stoppage of play. Fighting F Be . . . Blood and Stitches: Rangers, Senators Understand that Game 2 Nastiness was Beginning Just the http://www.sbnation.com/nhl/2012/4/13/2945491/new-york-rangers-ottawa-senators-game-1- nhl-playoffs-2012; Ira Podell, Game 1 Penalized Carkner 28081. It appeared that the Senators’ coach may have turned Carkner loose as a weapon to take back momentum and try to win some games. numerous players to intervene and separate the two. get involved, fellow Ranger Brandon Dubinsky was the first of R 15/2012-stanley-cup-playoffs-matt-carkner-brian-boyle-fight-rangers-senators (describing the fight). Carkner had not played earlier physical play in to the that series point. and the Enjoy Rangers had dominated the Spoils of Top Seed League’s Inconsistent Rulings 472 example, in a first round game, Ottawa Senator Matt Carkner dropped his gloves and started punching New York Ranger , who did not drop his gloves, making him an “unwilling combatant.” A york/nhl/story/_/id/7815106/2012-stanley-cup-playoffs-new-york-rangers-ottawa-senators- ratchet-nastiness. penalty, and a game misconduct penalty. ory.html (listing the penalties Carkner received). ory.html the received). Carkner (listing penalties 15, 2012, 10:04 PM), http://www.newsday.com/sports/hockey/rangers/boyle-dubinsky-move- on-from-game-2-sideshow-1.3662877. http://www.washingtonpost.com/blogs/capitals-insider/post/nhl-playoffs-carl-hagelin-matt- carkner-suspensions-continue-leagues-inconsistent- rulings/2012/04/16/gIQAzmROLT_blog.html. NHL O 34609-mqt_97-2 Sheet No. 133 Side B 03/17/2014 11:30:34 03/17/2014 B Side 133 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 134 Side A 03/17/2014 11:30:34

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note note 11. LOBE AND (Apr. 14, 2012, (Apr. 14, , supra This came came This (Apr. 15, 2012), 2012), 15, (Apr. 13 While these these While 15 , The G (Apr. 19, 2012), 2012), 19, (Apr. TAR S

EWSDAY 14 HE OURT , N C 473 473 , T (Feb. (Feb. 6, 2013 7:26 AM), S ’ RTHUR NSIDER NSIDER I A ING ING INGS Predators Match Shea Weber Offer Sheet, Keep ) 3/10/2014 K

, K

12 ELETE D OT OT , L.A. (July 24, 2012, 3:13 PM), http://www.cbssports.com/nhl/blo PM), 3:13 2012, 24, (July N Why the NHL Needs an Independent Disciplinary Appeals Part III.D. Part O (D

) Suspensions Suspensions Have Ruled the NHL Playoffs PORTS MAKING THE RIGHT CALL RIGHT THE MAKING infra

Matter of Intent ARCH See NHL Playoffs Veer Wildly out of Control M Neil’s OT Give Sens Win Over Rangers 101 (Dec. 21, 2011, 1:19 PM), http://www.sportslaw101.com/2011/12/21/ PM), 1:19 2011, 21, (Dec. 101 , CBS S , CBS AW L ORRECT ORRECT (C Matthew Heimlich, PORTS INAL INAL See -F , S (June 18, 2012, 10:24 AM), http://www.theglobeandmail.com/sports/hockey/suspensions AM), 10:24 2012, 18, (June 13. Damien Cox, Later in the series, another Ranger, who had never been suspended 14. Robert MacLeod, 12. Alex Arthur, 15. 11. Steve Zipay, The only recourse players have when disciplined by the league office M K AIL BRAMS C Y System in a head injury that caused Alfredsson to leave the game. before, was suspended checking Senator’s for captain Daniel Alfredsson into the boards, three resulting games after being penalized for http://lakingsinsider.com/2013/02/06/dubinsky-to-hear-from-nhl/. http://lakingsinsider.com/2013/02/06/dubinsky-to-hear-from-nhl/. attacked Boyle while Dubinsky stepped in to pull Carkner off of Boyle. Zipay Carkner The NHL also claims maliciously determining a penalty. that being a repeat offender is taken into consideration when http://www.thestar.com/sports/hockey/2012/04/15/cox_nhl_playoffs_veer_wildly_out_of_contr ol.html. is an appeal to the NHL Commissioner, which most players find because futile of the extremely limited success rate of appeals. just days after Shea Weber, the Nashville Predators’ Detroit captain, grabbed Red Wing Henrik Zetterberg violently smashed by his the head into back the boards of near the not suspended. and was $2,500 Weber was fined only the end of head the game; and rangers-1.3661582. rangers-1.3661582. 11:48 11:48 PM), http://www.newsday.com/sports/hockey/rangers/neil-s-ot-goal-give-sens-win-over- http://www.tuftsdaily.com/mobile/sports/alex-arthur-king-arthur-s-court-1.2732388; JonRosen, JonRosen, http://www.tuftsdaily.com/mobile/sports/alex-arthur-king-arthur-s-court-1.2732388; Dubinsky to Hear from NHL Captain in Captain Nashville in M -have-ruled-the-nhl-playoffs/article4204229/. Weber then signed a fourteen-year $110 million contract over the off-season. Brian Stubits,

2013] 2013] referees only gave Dubinsky and Carkner game misconduct penalties. A g/eye-on-hockey/19647711/predators-match-shea-weber-offer-sheet-keep-captain-in- nashville. Doing the math, his annual salary is now $7.85 million, which makes this fine about 0.03% of his annual salary and only 2.6% of his salary per game. Considering the aggressive nature of the act and the other punishments handed out for less egregious conduct, this fine is take NHL seriously. why not discipline do an many of example why-the-nhl-needs-an-independent-disciplinary-appeals-system/. why-the-nhl-needs-an-independent-disciplinary-appeals-system/. Following the game, NHL Vice President Shanahan, suspended Carkner of for one Player game, the Safety, same amount of Brendan time Dubinsky would miss from his game misconduct, despite Carkner the was fact a that repeat offender and Dubinsky was not, and despite vast difference in their penalties. the situations demonstrate the unfairness, inconsistency, and lack of 34609-mqt_97-2 Sheet No. 134 Side A 03/17/2014 11:30:34 03/17/2014 A Side 134 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 134 Side B 03/17/2014 11:30:34

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Additionally, this Comment Comment this Additionally, 16 18 MARQUETTE LAW REVIEW LAW MARQUETTE ) 3/10/2014 ELETE D Part III. Part IV. IV. Part IV. Part Part II.A–C. II.A–C. Part OT OT N infra O

(D

-10 . See . See infra . See infra . See infra It is because of this unfairness, inconsistency, and inflexibility that 16 17 18 19 Part II of this Comment will examine the history of the disciplinary

BRAMS this Comment proposes the creation of an American Sports Arbitration Tribunal (ASAT), which appeals to would disciplinary actions of the participating professional leagues. be responsible for arbitrating the with additional recommendations to make professional sports discipline look at other effective systems of sports specifically discipline the around Court the of world, Arbitration for Arbitral Sport (CAS), Tribunal the (BAT), Basketball and the system in National Australia, to provide Rugby some examples League’s of successful (NRL) structures that do not use a commissioner as the ultimate authority and determine of these systems to the the applicable Americanand inapplicable aspects States the United V will briefly analyze professional sports leagues. Part legal system’s judicial review to context. put Part VI the will introduce the ASAT American and suggest how legal it could be standard incorporated in into incorporating the different facets from American the American those of leagues’ professional the global systems CBAs analyzed in Part and IV. Part VII sports will conclude systems by process in American commissioners professional have played sports in determining leagues whether the system and is commissioner fair. Part III the will discuss the current role disciplinary processes of the the leagues under their opportunities for governing appeal and analyze documents their effectiveness. to Part fully IV will explore the recommends that the American professional sports leagues detailed provide outline of a what conduct will result in suspension and on precedent. system where punishments are based utilize a

474 flexibility in the NHL disciplinary process, such circumstances are confined merely not to the NHL; they often occur in the other three major American professional sports leagues. A ASAT would make the appeals procedure more fair problems of and the current systems, such as mitigate having the commissioner act as the the judge, jury, and executioner. This independent tribunal would provide American professional sports leagues with a truly neutral body to hear disciplinary appeals. The 34609-mqt_97-2 Sheet No. 134 Side B 03/17/2014 11:30:34 03/17/2014 B Side 134 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 135 Side A 03/17/2014 11:30:34

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See AND AND By By , 306–09 22 12:33

ATERIALS ISCIPLINARY M note 2, at

, D ASES supra C

: (referring to Major League 475 475 Id. Sirotkin, OWER INOWER THE P EGULATION

R While commissioners have been been have commissioners While see also 21 As America’s oldest sports league, league, sports oldest America’s As ) 3/10/2014 23 ROCESS Limits on the Discretionary Powers of Professional AW AND P L ELETE D OT OT N OMMISSIONER PORTS Baseball Baseball Fires the Arbitrator Who Overturned Braun’s 50- O C S

, May 15, 2012, at B15. B15. at May 2012, , 15, 1409, 1413–18 (1990) (describing several issues with the MLB (D

.,

) . MAKING THE RIGHT CALL RIGHT THE MAKING EV IMES The The National Labor Relations Board (NLRB) pointed out in 1969 ARCH R

note 2, at 181–83. M L.

. ed. 2009). ed. 2009).

Ken Belson, A

, N.Y. T , N.Y. , supra supra ITTEN ET AL A. Beginnings of the Commissioner in the MLB (2d ORRECT ORRECT

M

(C Matthew B. Pachman, Note, at 185–87. 185–87. at , 76 V J. 436 The team owners of the four major American professional professional American major four the of owners team The INAL INAL See 20 -F . Id. . See, e.g. STABLISHMENT OF OF STABLISHMENT Various situations from the MLB’s history provide examples of the Since the early twentieth century, American sports leagues have 20. Parlow, 21 22. E 23

M K ATTHEW BRAMS ROBLEMS C Y II. Sports Commissioners: A Historical and Legal Analysis Controversy of Issues Raised by the Pete Rose flaws of the commissioner system. Game Suspension recognized the need for strong central leadership to enforce the discipline the rules, players, and maintain public interest and integrity of the game. appear to be a neutral third appointed solely party by the freely member club chosen owners by themselves.” both sides, but rather an individual that the internal dispute system was flawed because the commissioner was appointed by the owners and would seemingly rule in their favor. Am. League of N.L.R.B. Prof’l 190, Baseball 191 Clubs, (1969). 180 The NLRB stated, “The almost system entirely by appears employers to and owners, have and been the final designed arbiter of internal disputes does not instrumental in these leagues’ success, they have not been perfect. P (describing several commissioner’s power). disciplinary proceedings where there was a dispute regarding 2013] 2013] more effective and consider the likelihood implemented. that the ASAT would be A Commissioner’s “nearly unbridled power”); sports leagues (NFL, MLB, authority in the position of the commissioner, giving the ultimate NBA, power and NHL) of the entire created league to this one person. central examining the history of the commissioner American system professional in the sports four leagues, major tribunal to settle disputes becomes apparent. the need for an independent the MLB has long experienced the inherent unfairness, inconsistency, Baseball’s arbitration system). However, this dispute occurred before the players association began collectively bargaining with the league, which removed the disputes from the NLRB’s jurisdiction because disputes became governed by M collective bargaining agreements. 34609-mqt_97-2 Sheet No. 135 Side A 03/17/2014 11:30:34 03/17/2014 A Side 135 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 135 Side B 03/17/2014 11:30:34

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Id. Recent Recent 24 , 21

Part III.A. Part Worried about fans’ fans’ about Worried After letting the legal legal the letting After Landis took the position position the took Landis 26 28 27 infra This decision established the the established decision This 29 1645, 1650 (1999). (1999). 1650 1645,

. EV R

., Spring 1994, 19. at ., 1994, 1, Spring L. AW In 1919, the baseball world was rocked by a a by rocked was world baseball the 1919, In L 25 For example, a player was arrested for stealing a a stealing for arrested was player a example, For MARQUETTE LAW REVIEW LAW MARQUETTE In Whose “Best Interests”?: The Narrowing Role of Baseball’s 31 An Exploration of Interesting Clauses in Sports ) 3/10/2014 PORTS ORDHAM note 28, at 1652. Landis likely chose this course of action to counter S note 2, at 183. F

&

. 12 (2011). Even the selection of Landis as commissioner can be viewed ELETE

, 67 D supra 5, NT supra supra at 1653–56 (noting Commissioner Landis’s use of broad authority during the OT OT , E N O

at 1654. 1654. at at 1653–54. 1653–54. at

PORT 30 (D S

Take Take My Arbitrator, Please: Commissioner “Best Interests” Disciplinary Authority in -10 . Id. . Id. . See id. . Id. 32 30 31 29. Pollack, Commissioner Landis used his broad power to punish anyone he 27 28. Adam Epstein, The MLB was the first professional sports league to create a 24. The disciplinary current system is CBA between laid agreement out in 2012–2016 the 25. Parlow, 26. Mark T. Gould,

SPECTS BRAMS arbitration cases over the commissioner system. in the current of the flaws prime examples use of performance-enhancing drugs are “Commissioner” office. 1920s). the seemingly unfair trial where the players’ confessions “mysteriously disappeared” and the in celebration. the their on jurors of courtroom shoulders out carried players the massive scandal when the infamous Chicago accepted “Black Sox” supposedly bribes to fix the . process play out, Landis suspended the eight implicated players for life even though they were found not guilty. criminal trial to finish, Landis suspended the player during the case. car and receiving stolen cars in 1920 and instead of waiting for the A 476 and inflexibility that the commissioner structure creates. A for the position. perception, the owners sought to create a position the that integrity would of protect the game and nominated United States District Judge MLB’s right to discipline its athletes independent and of serves the as legal precedent system for enhanced commissioner’s authority the under best interests clauses in (CBAs). later Collective Bargaining Agreements the players association and the owners that discussed is owners the and association the players Commissioner on the condition that players he in was “the granted best broad interest authority of the to game.” discipline After the player was acquitted he applied for reinstatement, but Landis Pollack, Professional Sports skeptically because he was the judge that Organized Baseball) ruled when in it favor was of sued in Major an League antitrust Baseball case (then by Federal Baseball. Jason M. believed deserved it. 34609-mqt_97-2 Sheet No. 135 Side B 03/17/2014 11:30:34 03/17/2014 B Side 135 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 136 Side A 03/17/2014 11:30:34

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Id. 12:33

at 1668. ASEBALL Id. B

35 at at 1655–56. Barnstorming ARNSTORMERS 477 477 Id. . , B , As the first commissioner, Landis Landis commissioner, first the As ) 3/10/2014 34 at 1669. 1669. at ELETE History of Barnstorming Id. D OT OT N The arbitrator overturned the suspension suspension the overturned arbitrator The O 38 (D

) MAKING THE RIGHT CALL RIGHT THE MAKING note 28, at 1658. 1658. at 28, note at 1655 n.76; n.76; 1655 at ARCH M supra In the only case to challenge his unfettered authority, authority, unfettered his challenge to case only the In

33 See id. See 39 ORRECT ORRECT (C Milwaukee Milwaukee Am. Ass’n v. Landis, 49 F.2d 298, 302 (N.D. Ill. 1931) (holding that The independent arbitrator was first utilized during the 1970 1970 the during utilized first was arbitrator independent The Commissioner Commissioner Kuhn’s power took another big hit when he attempted to suspend Pollack, at 1654–55. Then in 1921, Landis suspended Babe Ruth and any New York at 1662–63. 1662–63. at 1662. at at 1663. 1663. at 37 INAL INAL -F . Id. . Id. . See . Id. . Id. . See . Id. , http://www.barnstormersbaseball.com/index.php?option=com_content&view=article&i 38 39 35 36 37 34 33 The next major event that changed the scope of disciplinary In 1989, Commissioner A. Bartlett Giamatti regained some of the M K BRAMS it was the intentthe partieswas the it of to the make arbiter,in an made commissioner decisions whose C Y When the union filed a grievance, the arbitrator found that the suspension was the result “mere of surmise,” and Jenkins escaped suspension, despite the fact he was convicted. Texas Texas Ranger player Ferguson Jenkins after Jenkins was arrested in an airport for possession of two ounces of marijuana, two grams of hashish, and four grams of cocaine. Association (MLBPA) successfully arbitrator to handle labor disputes and conflicts arising from the bargained CBA. for an independent authority occurred in 1970 when the head of the MLB Players an Illinois district court affirmed the Commissioner’s power when it held that Landis’s decisions were absolute and binding because the intended owners to give him such power. “ good faith, upon evidence, upon all questions relating to the purpose of the organization and binding”) should absolutely be detrimental all thereto, conduct position’s power when he banned Pete Rose from baseball for betting life on for baseball games in which he was the manager of one of the d=636&Itemid=191 (last Oct. d=636&Itemid=191 visited 2013). 15, after finding that the player was “emotionally ill and disabled list.” belonged on the involves players touring the country teams for money. and playing pick-up games against non-professional COM 2013] 2013] determined the player should have been found guilty and suspended the player for life. A Yankee that “barnstormed” after winning the World Series. season when the California Angels attempted to suspend an for “lackadaisical play.” 1668–69. 1668–69. Then in 1984, a was arrested in the Dominican Republic cocaine; for possession of after the Commissioner suspended suspension. the arbitrator overturned him the MLBPA filed a grievance, but the shaped the nature of the position and want. they would established to do nearly anything future successors a precedent for his Then-Commissioner Bowie Kuhn maintained the authority issues that only involved the to integrity of the game or the public’s faith in handle baseball. 34609-mqt_97-2 Sheet No. 136 Side A 03/17/2014 11:30:34 03/17/2014 A Side 136 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 136 Side B 03/17/2014 11:30:34

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P E IME , T , 6 D note 46. This supra , the next major issue issue major next the

44 Initially, Rose challenged challenged Rose Initially, Majority Majority of Players Want Tougher 41 Baseball’s Drug Scandal , http://www.baseball- Steroid Suspensions LMANAC A Ed Magnuson, Richard Justice, Justice, Richard (2009). (2009).

See 13 at 25–29. 25–29. at

(Aug. 21, 2013, 2:54 PM), http://gamedayr.com/sports/bud- 1,

. ASEBALL Three Strikes and You’re (Not Necessarily) Out: How Baseball’s , B , MARQUETTE LAW REVIEW LAW MARQUETTE See generally (Feb. 26, 2013, 12:05 PM), http://mlb.mlb.com/news/article.jsp?ym PM), 12:05 2013, 26, (Feb. ROBS note 40, note note 40, at 15. 15. at 40, note ) 3/10/2014 P ’s Tenure as MLB Commissioner Takes Path Similar to to Similar Path Takes Commissioner MLB as Tenure Selig’s Bud

. note 40, at 31–32. This is going to be even more applicable if the MLB AMEDAYR AMEDAYR COM ELETE supra supra supra supra The MLB instituted a drug testing policy in 2005 and and 2005 in policy testing drug a instituted MLB The , G D 45

supra OT OT at 17–25. 17–25. at ONTEMP 43

, MLB. , N This policy imposes a strict liability standard using zero zero using standard liability strict a imposes policy This C 48

Foote, Foote, Foote, Foote, 47 O at 14. at When evidence came out that the steroid problem was bigger bigger was problem steroid the that out came evidence When &

(D 46 One reason for the intensity of the suspension was because because was suspension the of intensity the for reason One

Jonathan Bass, See 40 L. -10 . Steroid Suspensions . . See . Id. . See id. 46 47 45 40. Matthew A. Foote, After the recreational drug issues in the 1980s, 48. Foote, 41 42. Ohio (S.D. 1989). 918–19 906, Rose v. Supp. Giamatti, F. 721 43. 44

BRAMS PORTS Commissioner Giamatti’s gambling activities, conduct but the Ohio district court held in that Commissioner Giamatti was investigating well within the Rose’s authority granted to him illegal by the CBA. situations. tolerance that does not take into account any circumstances of particular into account tolerance that does not take Recovering Recovering Addict almanac.com/legendary/steroids_baseball.shtml (last visited almanac.com/legendary/steroids_baseball.shtml Oct. 15, 2013).

S 478 teams. A 16, 1985, at 26 (discussing drug abuse by MLB players in the 1980s). in 1980s). the players MLB by abuse drug at (discussing 26 16, 1985, Erratic Approach to Conduct Violations Is Not in the Best Interest of the Game to shape the commissioner’s ability to discipline arose at the turnplayers of the twenty-first century in the midst of what is now referred to as “the Steroid Era.” selig-mlb-commissioner-tenure-recovering-addict/; selig-mlb-commissioner-tenure-recovering-addict/; use. remains disciplinary drugs in system performance-enhancing for decides to create harsher penalties for violating the Joint extent Drug of Agreement the because of Biogenesis the scandal. Penalties PED suspension. While this was a move towards more deference to discretion, the Rose commissioner’s was disciplined as a manager, not as a player; thus, he did not have the benefit of the MLBPA or a CBA to fight the d=20130226&content_id=42006512&vkey=news_mlb&c_id=mlb d=20130226&content_id=42006512&vkey=news_mlb&c_id=mlb (noting that players are created a five-strike suspension test that started at ten days for the first offense. than he thought, Commissioner Bud Selig system created a for new disciplinary performance-enhancing positive test, drugs: one hundred games for the fifty second, and a lifetime ban games for the for third. the first Rose did not admit to gambling; in fact, fourteen years he before fought finally coming the clean. accusation for 34609-mqt_97-2 Sheet No. 136 Side B 03/17/2014 11:30:34 03/17/2014 B Side 136 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 137 Side A 03/17/2014 11:30:34 , PM

12:33 ., 2012–

N , Feb. 26, ’ Bud Selig: SS available at A IMES CBA],

, N.Y. T LAYERS P (Jan. 6, 2009, 1:36 PM), PM), 1:36 2009, 6, (Jan. 479 479 note 23. note 23. Romero served a fifty fifty a served Romero COM 52 MLB Suspends 13, Including A- ASEBALL supra supra B ESPN. ’ , While the hearing was held held was hearing the While 56 EAGUE L

Star Player First to Win Appeal on a ) 3/10/2014 53 (Mar. 2, 2013, 7:23 PM), http://espn.go.com/mlb/s PM), 7:23 2013, 2, (Mar. Braun was able to win the appeal appeal the win to able was Braun AJOR 55

M ELETE

COM D . & Id. A Flawed Policy for Drug Testing OT OT N O ALLAS LUBS (D

C ) art. XI, § A(9) (2011) [hereinafter MLB MAKING THE RIGHT CALL RIGHT THE MAKING note note 50. Luckily, the appeal took place during the World Series ARCH M , ESPND Romero did not name the particular supplement he used from GNC. GNC. from used he supplement particular the name not did Romero note 40, at 31. 31. at 40, note note 40, at 31. 31. at 40, note EAGUE

Jeré Jeré Longman, supra L Suspended Suspended Romero ‘Didn’t Cheat (Aug. 6, 2013, 12:06 PM), http://espn.go.com/mlb/story/_/id/9540755/mlb- PM), 12:06 2013, 6, (Aug. supra supra supra supra GREEMENT ORRECT ORRECT Romero took the supplement after the MLBPA had had MLBPA the after supplement the took Romero Moreover, the League suspended Romero despite the fact fact the despite Romero suspended League the Moreover, In February 2012, became the first player to to player first the became Braun Ryan 2012, February In 50 AJOR A (C 51 see also 54 Feb. 24, 2012, at A1. at A1. 2012, 24, Feb. COM at 31–32.

M , ;

The positive test resulted from a banned ingredient found in a a in found ingredient banned a from resulted test positive The INAL INAL 49 ASIC ASIC -F . Id. . Id. . Id. IMES T

54. 30 56 49. Foote, 50 One of the least fair aspects of the appeal system in the MLB is the The unfairness of such a standard was well illustrated when former 55. Ken Belson & Michael S. Schmidt, 53. Gammons, 51. Foote, 52 , ESPN. M K BRAMS C Y and Romero was permitted to pitch. permitted pitch. was to and Romero fact that the league can fire an “independent” without arbitrator cause, at and any has time, recently done so against with it. an arbitrator that ruled game suspension after he refused the MLB’s offer of a twenty-five game suspension if he would admit guilt. pitcher J.C. Romero positive was for suspended for a testing game. performance-enhancing drug before a World Series despite not challenging the science of the test or proving tampering, but simply by arguing a procedural error. he had checked with two nutritionists and his strength and conditioning coach to confirm the supplement was approved. Peter Gammons, pring2013/story/_/id/9008032/bud-selig-calls-tougher-drug-penalties-violations (explaining pring2013/story/_/id/9008032/bud-selig-calls-tougher-drug-penalties-violations that Commissioner Selig is pushing for harsher penalties); Rod bans-13-including-alex-rodriguez-new-york-yankees-2014 bans-13-including-alex-rodriguez-new-york-yankees-2014 (detailing Biogenesis scandal). the extent of the

pushing for harsher penalties in light of the Stricter Drug Penalties Biogenesis scandal); Ron Matejko, 2013] 2013] A supplement he had purchased from (GNC) that a was mislabeled local to show that General it did not Nutrition include the ingredient. Store banned N.Y. 2016 B http://mlbplayers.mlb.com/pa/pdf/cba_english.pdf; Belson, Belson, http://mlbplayers.mlb.com/pa/pdf/cba_english.pdf; http://sports.espn.go.com/mlb/news/story?id=3812334. http://sports.espn.go.com/mlb/news/story?id=3812334. successfully appeal a performance-enhancing drug related suspension in arbitration against the league. circulated a memo that said any supplements purchasable at GNC were approved. 2012, at SP9. Braun’s representatives publicly denigrated the man who collected Braun’s 34609-mqt_97-2 Sheet No. 137 Side A 03/17/2014 11:30:34 03/17/2014 A Side 137 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 137 Side B 03/17/2014 11:30:34

60 M K PM

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Id. (Mar. (Mar. 1, 2012, 6:56 (Aug. 5, 2013, 12:46 12:46 2013, 5, (Aug. Brewers’ Brewers’ Ryan Braun OST P note 54, at art. XI, A(9); §

The List of Baseball Players (Aug. 5, 2013, 1:45 PM), EADSPIN David Cornwell, Ryan Braun’s the lead arbitrator, who who arbitrator, lead the supra 57

, D (July 22, 2013, 11:51 PM), PM), 11:51 2013, 22, (July UFFINGTON UFFINGTON CBA,

, H ROGRESS P ODAY MLB HINK His ruling provided precedent for other players in , T

see see also , USA T Id. Id. (Aug. 22, 2013, 8:01 PM), http://espn.go.com/mlb/story/_/i PM), 8:01 2013, 22, (Aug. COM note 56; MARQUETTE LAW REVIEW LAW MARQUETTE note 55. This system will be tested soon when and ) 3/10/2014 supra note 23. The MLB uses a three-person arbitration panel for these note 23. The arbitrator had served for thirteen years arbitrating cases , ESPN. , (Aug. 5, 2013), http://mlb.si.com/2013/08/05/a-rod-suspended-through- ELETE supra D

supra supra 59 COM OT OT N note note 54, at art. XI, A(9). § The American Arbitration Association (AAA) Longman, Longman, O The Full List of Suspended Biogenesis Clients This situation shows that the appeals process may not actually actually not may process appeals the that shows situation This (D

58 Belson, -10 Baseball Baseball Dishes Out Biogenesis Suspensions—Don’t Expect Much Damage . . See supra A-Rod Suspended Through 2014, Will Appeal; 12 Others Given Lesser Appeal; Will Through 2014, A-Rod Suspended note 54, at art. XI, § A(9). , MLBSI.

Not only can either party fire an arbitrator, but each party can select 58. Belson, 57 60 59. According to the CBA, either the league or the players association can terminate

BRAMS an arbitrator, who is not required to be with impartial, a single to impartial sit arbitrator responsible on for the making the panel decision. between between the union and the league. similar situations to escape suspension based on procedural union are revising the of language the policy to errors, eliminate any ambiguity and make the system though the league and stricter difficult and more to appeal. http://www.usatoday.com/story/sports/mlb/brewers/2013/07/22/ryan-braun-suspended- milwaukee-season/2576215/. He finally admitted to using performance-enhancing drugs in a scripted statement he and his representatives sent out to the media in late August 2013. Full Braun’s Statement http://thinkprogress.org/sports/2013/08/05/2414251/the-list-of-baseball-players-suspended-in- the-biogenesis-scandal/. Rodriguez was one of fourteen players suspended, but was the only one to file a formal appeal and will likely Petchesky, argue that he is being treated arbitrarily. Barry d/9592973/ryan-braun-full-statement-admitting-ped-use. d/9592973/ryan-braun-full-statement-admitting-ped-use. arbitrators, one chosen disputes; by of composed the two-party league the and by players’ one by the arbitrator agreement appointed of association, one and independent both. CBA, MLB supra be impartial.

CBA, sample, calling his actions “inappropriate.” Ronald Lawyer, Blum, Criticizes Drug Collector Dino Laurenzi Jr. 480 before an “independent” arbitration tribunal, A Bans his his legal team bring their appeal to his suspension, 211-game the ever. suspension largest Ted Keith, submits a list of arbitrators to serve as MLB arbitrators, strikingby list the narrow they case, arbitratora impartial for the on agree cannot League and and when the Players Association hearing. that arbitrator the for she is or he and names only remains until one Belson & Schmidt, 2014-will-appeal-12-others-given-lesser-bans/; 2014-will-appeal-12-others-given-lesser-bans/; Travis Waldron, Suspended in the Biogenesis Scandal PM), http://deadspin.com/the-full-list-of-suspended-biogenesis-clients-1029648603; Tom Van Riper, PM), http://www.huffingtonpost.com/2012/03/01/david-cornwell-ryan-braun-dino-laurenzi_n_ PM), http://www.huffingtonpost.com/2012/03/01/david-cornwell-ryan-braun-dino-laurenzi_n_ 1315064.html. Braun would later agree to a sixty-five-game suspension for Joint violation of the Drug Agreement Suspended and publicly “apologize.” for Erik Rest Brady, of Season had served as the independent predecessors, arbitrator was fired by MLB three for months after he ruled against longer the than any league. of his any arbitrator for any reason, as long as that arbitrator is not currently hearing a case. MLB 34609-mqt_97-2 Sheet No. 137 Side B 03/17/2014 11:30:34 03/17/2014 B Side 137 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 138 Side A 03/17/2014 11:30:34

., PM

note , N.Y. 12:33 ISPUTE ISPUTE The The

D 64

supra Part V. At Part V. At ., MPLOYMENT The system system The E .

: HORNTON ET AL Parlow, Parlow,

See infra See T

UIDE K. G (2012);

EADOW ET AL 481 481

433 . art. art. XI, A(9) § -M (2d ed. 2011) (citing Federal ATRICK

RACTICE RACTICE Part V. The lack of any room for 462 P ENKEL M

ODEL J. note 54, at See infra M ROFESSIONALS P ) 3/10/2014 ALIFORNIA ALIFORNIA supra supra Though the commissioner’s power has has power commissioner’s the Though C ARRIE ARRIE 63

ELETE ., D CBA, OT OT

These are among the issues that illustrate illustrate that issues the among are These N DVERSARIAL DVERSARIAL 65 O ANAGEMENT A (D

M ) J.C. Romero, Former Phillies Reliever Suspended for Performance notes 54–60 and accompanying text MAKING THE RIGHT CALL RIGHT THE MAKING HIN ET AL C ARCH note 23. This pressure on the arbitrator to rule for the League note 28, at 1654–55.

M PORTS S W.

61 See supra supra supra EYOND THE This is unfair because the disciplinary system, much like like much system, disciplinary the because unfair is This B ORRECT ORRECT ING 62

(Jan. 10, 2012, 3:24 AM), http://www.nydailynews.com/sports/i-team/romero- AM), 3:24 2012, 10, (Jan. : (C Coffin v. U.S., 156 U.S. 432, 458–60 (1895); P 18:665 (2012); MLB (2012); 18:665 M Christian Red, Red, Christian

. THICS THICS FOR EWS INAL INAL E N -F note 54, at art. XI, § A(9); C ON . See . See H 64. Belson, 65 62. Pollack, 63 61. Since the League is more frequently involved in arbitration than the association The initial authority granted to the MLB Commissioner gave him so M K AILY AILY ESOLUTION BRAMS ITIGATION PORTS C Y U.S. societal and legal norms, is supposed to presume the innocence of the accused until proven guilty. Enhancing Enhancing Drugs, Settles Lawsuit, Says ‘Justice Is Served’ After Supplement is Tainted 2, at 201. at 2, 201. illustrates the unfairness of the arbitration system. phillies-reliever-suspended-performance-enhancing-drugs-settles-lawsuit-justice-served- supplement-tainted-article-1.1003730 (explaining that J.C. Romero was suspended games after an over-the-counter supplement for he was taking was later found to contain fiftybanned substances). system No of should strict exist in liability the sports world. the very least, players like Romero should be rewarded with the benefit they of the go doubt through when the effort to double-check with their teams substance or is the legal and League are to clearly make not sure at a fault. much power that he could discipline a player who was found not guilty of charges. D L R S (Aug. 5, 2013, 3:06 PM), http://www.forbes.com/sites/tomvanriper/2013/08/05/baseball-dishes- out-biogenesis-suspensions-I-expect-much-damage/. (because the player can “impartial” elect arbitrators have an union incentive to not representation make a but decision See against the is League office. not required to use it), the 2013] 2013] While the “independent” arbitrator ruled in this case, the was fact that he fired shows that commissioner. the ultimate authority may still lie with the A the need for a new appeal system in the MLB. system in the MLB. for a new appeal the need Arbitration Act, 9 U.S.C. 10(a) § (1925)). additional protection of impartiality, The and in fact gives MLB’s reason to believe the arbitrators arbitration would procedure provides no not impartial. be explained explained in the CBA prevents an arbitrator from making an obvious arbitrary or capricious decision, which is already generally prohibited by the laws regarding arbitration. MLB CBA, supra has the ability to fire arbitrators, which gives an arbitrator an incentive to rule in favor of the League in order to retain employment. undergone changes based on independent arbitration, the League now League has also shown inflexibility in its leaving handling of the drug violations, players manufacturer negligence. completely responsible for league, team, and 34609-mqt_97-2 Sheet No. 138 Side A 03/17/2014 11:30:34 03/17/2014 A Side 138 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 138 Side B 03/17/2014 11:30:34

L ’ M K PM

AT C Y [97:2 72 ODAY 12:33

While While OLLECTIVE OLLECTIVE 71 , USA T ., ., C 23, 32 (2008). (2008). 32 23, N

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NFL owners granted granted owners NFL &

68 . LAYERS P NT 359, 360 (2010). 360 (2010). 359,

. E

. 67 EV EV In 2000, Commissioner Paul Paul Commissioner 2000, In R

70 R

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. The Best Interests of the League: Referee Betting AL From From the Black Sox to the Box: Sky The Evolution , 10 T , 10 (2009). (2009).

45 V 45

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’ AT 137, 146–47 (2008). (2008). 146–47 137,

631,

N MARQUETTE LAW REVIEW LAW MARQUETTE . J.

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Are Commissioner Suspensions Really Any Different From Illegal ) 3/10/2014 EV & note 2, at 187. AW R

L L. ELETE

Jarrett Jarrett Bell, notes 48–53 and accompanying text. accompanying and 48–53 notes D U. supra supra

. OT OT EAGUE Rozelle attempted to institute a drug-testing policy in the the in policy drug-testing a institute to attempted Rozelle N PORTS B. History and Issues with the NFL’s Commissioner L 69 O As the League has evolved, so has the commissioner’s power; power; commissioner’s the has so evolved, has League the As ATH ; Robert I. Lockwood, Comment, Under the most recent CBA, the commissioner has the authority to name the the name to authority the has commissioner the CBA, recent most the Under (D 66

, 15 S , 15 See supra supra See -10 . See, e.g., . Id. . Id. , 58 C , 58 While the current system of NFL discipline and appeals is likely the 67 The owners first granted significant authority to Commissioner Pete 70. Colin J. Daniels & Brooks, Aaron 66. Joshua A. Reece, Note, 68. Parlow, 69 71. Marc Edelman, 72

BRAMS OOTBALL most flexible of the major American professional sports leagues, it is still American professional major most flexible of the fraught with unfairness and inconsistency. The current commissioner, Roger Goodell, has imposed a nearly dictatorial rule: he has the right to both hand out discipline, directly or indirectly, and rule on thereof. the appeal Rozelle, the third man to hold the able position, to bring partially financial because solvency to he the was League. NFL but the NFL Players Association (NFLPA) would not agree to it, and an arbitrator ruled that instituting the testing policy was beyond the commissioner’s power under the CBA. and Mechanics of Authority Commissioner of Mechanics and F error by anyone involved and only disciplining the player shows system. the flaws with the current 482 A Independent Independent Arbitrators Can Fit into the NFL’s Agreement Bargaining Collective NFL Off-Field Discipline Procedures Under the his power is dwarfed in comparison to his successor, Roger Goodell. Tagliabue gradually increased the power and authority of his position, Tagliabue was empowered to suspend players for off-the-field conduct under the League’s first Personal Conduct Policy (PCP). the NBA (Dec. 12, 2012, 3:52 PM), http://www.usatoday.com/story/sports/nfl/2012/12/11/chicago-bell- paul-tagliabue-roger-goodell-bounty-scandal-was-just-a-witch-hunt/1762007/. Scandal Brings Commissioner Authority and Collective Bargaining Back to the Frontcourt in Group Boycotts? Analyzing Whether the NFL Trade Personal Conduct Policy Illegally Restrains Rozelle similar authority to MLB Commissioner Landis, but unlike the MLB, the NFL did not have an arbitration procedure in discipline. the CBA for officer to hear a discipline appeal and can elect to hear it himself at his discretion. N it has grown to such a level that problems are becoming alter the system. to a dire need and there is more evident 34609-mqt_97-2 Sheet No. 138 Side B 03/17/2014 11:30:34 03/17/2014 B Side 138 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 139 Side A 03/17/2014 11:30:34

, 75 76 80 L. PM

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. M available available at

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C see also , 88 note 2, at 300. 300. 2, at note [hereinafter NFL PCP],

supra ) 3/10/2014 ERSONAL P

, ELETE (2012) D Overturning Overturning of Bounty Suspensions Backs Goodell into OT OT EAGUE N The The NFL Makes It Rain: Through Strict Enforcement of Its at 637. 637. at L

(Sept. 7, 2012, 6:46 PM), http://sportsillustrated.cnn.com/201 PM), 6:46 2012, 7, (Sept. After Review: An Open Letter to NFL Commissioner Roger While the PCP contains a limited list of of list limited a contains PCP the While O note 78, at 535–36. 535–36. at 78, note 77 (D art. 46, 2(a) § (2011) [hereinafter NFL CBA], OLICY

) P MAKING THE RIGHT CALL RIGHT THE MAKING note 72, at art. 46; Casinova O. Henderson, supra supra note 71, note The PCP is not part of the CBA, so any discipline discipline any so CBA, the of part not is PCP The ARCH note 2, at 301 (providing several examples of Commissioner Goodell 74 OOTBALL M F supra Soon after accepting this position, Goodell Goodell position, this accepting after Soon

L LLUSTRATED ’ 73 supra supra supra I GREEMENT (2008). ONDUCT AT

ORRECT ORRECT A C J. 167, 170–71 (2010); Sirotkin, Sirotkin, 167, (2010); J. 170–71 CBA,

(C . at 536; Michael McCann, at 638. 638. at 1087 PORTS

AW INAL INAL Sirotkin, O’Shaughnessy, , S L -F . . . Id. . Id. 1069,

. 77 In August 2006, the owners elected Roger Goodell to serve as 79 80 74. Edelman, 73. Robert Ambrose, Note, 78. Logan O’Shaughnessy, 75 76. NFL M K EV ARGAINING ARGAINING BRAMS ERSONAL PORTS C Y commissioner. that arises from it is not subject to the CBA’s arbitration provision. creates suspicion of potential arbitrariness of discipline under the PCP because it makes the commissioner “the judge, jury and executioner.” not contain an outline of potential states that disciplinary discipline will be handed sanctions, down “as warranted.” but instead strengthened the PCP by making it stricter and applying it to a broader range of conduct. P R B 2013] 2013] A conduct that may lead interpreted as broadly as to the commissioner wishes. discipline, the list is vague and can be http://nfllabor.files.wordpress.com/2013/06/personal-conduct-policy.pdf. http://nfllabor.files.wordpress.com/2013/06/personal-conduct-policy.pdf. a Corner Is Too Much for the NFL Commissioner to Have Over the Players Off-the-Field Conduct? S independent independent arbitrator. This power demonstrates the commissioner unfairness in has the no system because check the on his authority and the governing Instead, under the CBA, appointee, the is the commissioner, appellate through body for himself Goodell all has player or used discipline an his grievances. authority under athletes without the giving them PCP an opportunity to to seek an suspend appeal from numerous an 2/writers/michael_mccann/09/07/saints-suspensions-overturned/index.html. 2/writers/michael_mccann/09/07/saints-suspensions-overturned/index.html. (2011) (citing N Goodell Suggesting That Limiting Conduct Policy May Be in the League’s Best Interests the League’s Disciplinary Power Under the Personal handing discipline). out handing http://images.nflplayers.com/mediaResources/files/PDFs/General/2011_Final_CBA.pdf. http://images.nflplayers.com/mediaResources/files/PDFs/General/2011_Final_CBA.pdf. Conduct Policy, the NFL Protects Its Integrity, Wealth, and Popularity https://web.archive.org/web/20101228103442/http://images.nflplayers.com/mediaResources/im ages/oldImages/fck/NFL%20Personal%20Conduct%20Policy%202008.pdf entering (accessed URL in the by Internet Archive index)); 34609-mqt_97-2 Sheet No. 139 Side A 03/17/2014 11:30:34 03/17/2014 A Side 139 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 139 Side B 03/17/2014 11:30:34

, , 86

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Jeff 84 C Y Id. [97:2 COM . 12:33

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(Oct. 12, 2012, 8:03 PM), PM), 8:03 2012, 12, (Oct. COM

. 81 NFL The League has also come under COM at 537–38; Ray Slover, Id. EWS Id. N HICAGO One year earlier, the League League the earlier, year One , ESPN. 83 Goodell suspended Payton for a year year a for Payton suspended Goodell , ESPNC 85 PORTNING note 85. 85. note , S What Does Bounty-Gate Mean? supra supra note 78, at 539. During the 2013 summer, Goodell did not Roger Goodell: Team Punishment of Riley Cooper Is Enough note 78, at 537. 537. at 78, note MARQUETTE LAW REVIEW LAW MARQUETTE Part III.B (discussing the governing NFL documents). documents). NFL governing the (discussing III.B Part Roger Goodell Is Not Serious About Player Safety, and It’s Because supra supra supra ) 3/10/2014 ELETE (Mar. 22, 2012, 11:41 AM), http://www.forbes.com/sites/chrissmith/2012/03 AM), 11:41 2012, 22, (Mar. D For instance, a player was arrested for DUI after he hit a a hit he after DUI for arrested was player a instance, For 82 OT OT N Chris Chris Smith, O at 537–39. Cincinnati Bengals’ linebacker Rey Maualuga registered a 0.157 blood ORBES Jon Bostic Fined $21K for Hit (Aug. 1, 2013), http://www.latimes.com/sports/sportsnow/la-sp-sn-cooper-goodell- 2013), 1, (Aug. (D

, F O’Shaughnessy, Appeal Seeks Roger Goodell Recusal -10 . See . . infra generally See . Id. IMES Another example that creates questions about the objectivity and 85 84 86. 81 82. O’Shaughnessy, 83 Questions of subjective arbitrariness also arise regarding the player He also deflected a comparison of the slur Cooper used to the name Redskins, which has

BRAMS consistency of the commissioner Saints’ head coach, Sean Payton. is the suspension of New Orleans 20130801,0,3229785.story#axzz2cdh18U7E. 20130801,0,3229785.story#axzz2cdh18U7E. Goodell cited the CBA policy that does not the punish a League player for the same incident if he has already been punished Id. by his team. come under criticism of no longer being acceptable. much public disparagement for its seemingly Dickerson, arbitrary policing of fineable hits. of Money parked car and then failed a breathalyzer under test; the the League Substance fined him Abuse Policy. http://espn.go.com/chicago/nfl/story/_/id/9587983/jon-bostic-chicago-bears-fined-21000-hit- mike-willie-san-diego-chargers. L.A. T L.A. discipline system because similar consistently. situations have not been treated /22/roger-goodell-nfl-are-not-serious-about-player-safety-and-its-because-of-money/. /22/roger-goodell-nfl-are-not-serious-about-player-safety-and-its-because-of-money/. http://www.sportingnews.com/nfl/story/2010-08-17/bengals-rey-maualuga-fined-suspension- revoked. He received a suspended-seven day the girl car. in underage an having by the circumstances not help did he and ninety days, jail sentence, his license was suspended for punish Eagles’ wide receiver Riley Cooper for publicly using rant at a concert. a Sam Farmer, racial slur in a video-taped http://www.sportingcharts.com/dictionary/nfl/bounty-gate.aspx http://www.sportingcharts.com/dictionary/nfl/bounty-gate.aspx (last visited Oct. The last person to receive a full-year suspension was Donte Stallworth, who killed a person in 15, 2013). accident. a Smith, drunk-driving alcohol content when police issued the breathalyzer. Maualuga Fined; Suspension Revoked

484 documents do not provide specific guidelines for conduct that punishments to be imposed. disciplined, or the may be A suspended another player for three games under the PCP after he was accident. in an get of drunk driving, but did not arrested on suspicion http://espn.go.com/nfl/story/_/id/8493998/bounty-scandal-jonathan-vilma-others-appeal-seeks- roger-goodell-recusal-sources-say; for not stopping a “cash-for-hits” pool that the Saints operated—where players received monetary payments players, for big hits, and injuring opposing making impactful plays—dubbed “Bounty-Gate.” 34609-mqt_97-2 Sheet No. 139 Side B 03/17/2014 11:30:34 03/17/2014 B Side 139 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 140 Side A 03/17/2014 11:30:34

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12:33

, Apr. 2, IMES (May 16, 2012, 2012, 16, (May COM , N.Y. T 485 485 , ESPN. In response to the Patriots’ Patriots’ the to response In 88 note 89. In response to Senator Arlen Arlen Senator to response In 89. note Timeline Timeline of Events Surrounding Patriots’ Roundup: Roundup: All Bountygate Penalties Against ) 3/10/2014 supra ELETE May 2, 2012, http://www.stltoday.com/roundup-all- D

, Belichick Belichick Draws $500,000 Fine, but Avoids Suspension Belichick Draws $500,000 Fine, but Avoids Suspension OT OT This marked an unprecedented increase in in increase unprecedented an marked This N 92 O (July 26, 2012, 8:21 PM), http://www.nfl.com/news/story/0900 (D This was the most significant scandal since the the since scandal significant most the was This

) ISPATCH 87 Questions Linger About Why N.F.L. Destroyed Patriots’ Tapes MAKING THE RIGHT CALL RIGHT THE MAKING note 85; COM -D ARCH note 88; Bishop, Bishop, 88; note The League also claimed it destroyed the videotape videotape the destroyed it claimed also League The Patriots Were Questioned on Videotaping Claims M OST 89 Bill Bill Belichick Highest-Paid Coach—Again note 85. 85. note

P supra , NFL. 90 supra supra supra ORRECT ORRECT OUIS Additionally, Additionally, the defensive coordinator said to have run the system was (C L , Dec. 16, 2007, at SP1; ; Greg Bishop, (Sep. 14, 2007, 10:16 AM), http://sports.espn.go.com/nfl/news/story?id=3018338. http://sports.espn.go.com/nfl/news/story?id=3018338. AM), 10:16 2007, 14, (Sep.

. Belichick merely received a fine, which equates to about twelve twelve about to equates which fine, a received merely Belichick T INAL INAL 91 -F IMES . Id. . Id. COM , S T note 89. 89. note

91. Smith, 92. Kristi Dosh, 87 89 90. Battista, While Belichick explicitly broke an NFL rule and Payton condoned 88. Judy Battista, M K BRAMS C Y a system that nearly every team around the League extent, operates to some supra 5:28 PM), http://espn.go.com/blog/playbook/dollars/post/_/id/719/bill-belichick-highest-paid- coach-again; Smith, ESPN. New England Patriots and coach videotaped Bill opposing Belichick teams’ were practices. found to have 0d5d8084899e/article/timeline-of-events-surrounding-patriots-videotaping-scandal. 0d5d8084899e/article/timeline-of-events-surrounding-patriots-videotaping-scandal. suspended indefinitely, the general manager was suspended for assistant half coach of was the season, suspended and for an six games. Saints

2013] 2013] Commissioner Goodell also fined the Saints organization a half-million dollars and usurped the organization’s second-round draft pick for the next two NFL Drafts. A 2008, at D2. 2008, at D2. N.Y. they contained. evidence and originally refused to release the number of tapes or what percent of his 2007 salary, and Payton was suspended without pay for a year, to equivalent the nearly seven million dollars he would have made, and lost the opportunity to coach championship a contender. team that had been a perennial bountygate-penalties-against-saints/article_ab7bd2c6-948b-11e1-89ce-0019bb30f31a.html. bountygate-penalties-against-saints/article_ab7bd2c6-948b-11e1-89ce-0019bb30f31a.html. actions, Goodell fined the Patriots a quarter-million dollars, seized one first-round draft pick, and fined Belichick a half-million dollars, but did not suspend him. explicit punishments for these actions. Further, if the appeals that punishment and illustrates the inconsistency of Commissioner Goodell’s punishments. If the NFL explaining had the a illegal more conduct, players detailed and governing coaches conduct document to would avoid. know There what would be fewer appeals if this document had Specter’s Specter’s public demand, it has come out play-calling that the from League received eight five tapes, recording Scandal Videotaping teams in six games. 34609-mqt_97-2 Sheet No. 140 Side A 03/17/2014 11:30:34 03/17/2014 A Side 140 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 140 Side B 03/17/2014 11:30:34

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He He 100 note 86. 86. note Roundup: Roundup: All , Oct. 20, 2012, Under the the Under note 86. 86. note 94 supra supra Judge Judge Throws Out IMES , supra supra , Vilma v. Goodell, 917 F. F. 917 Goodell, v. Vilma When the players players the When 98 , N.Y. T

(Jan. 17, 2013, 7:40 PM), see also see note 86. Defensive lineman Anthony EUTERS note 86. 86. note note 86; note Goodell promptly reissued two two reissued promptly Goodell , R 97 supra , An independent arbitration panel panel arbitration independent An supra supra , , 96 at 595–96; Jonathan Stempel, note 87. note Id. Appeal Seeks Roger Recusal Goodell Roger Seeks Appeal supra supra , Appeal Seeks Roger Goodell Recusal Goodell Roger Seeks Appeal A judge dismissed the suit according to a rule that prevents

note 80; 80; note MARQUETTE LAW REVIEW LAW MARQUETTE ) 3/10/2014 note 80. note 80. note 80; note 80; Paul Tagliabue ‘Vacates All Player Discipline’ in Saints Bounty Case Tagliabue to Hear Appeals in Bounty Case supra ELETE (Dec. 11, 2012, 1:20 PM), http://www.cbssports.com/nfl/blog/eye-on- supra supra supra supra The players filed a grievance under the CBA claiming claiming CBA the under grievance a filed players The D 93

Not only did the players appeal the suspensions, but one one but suspensions, the appeal players the did only Not OT OT 99 95 N COM McCann, McCann, O . (D

Appeal Seeks Roger Goodell Appeal Roger Recusal Seeks Goodell Appeal Seeks Roger Goodell Recusal Appeal Seeks Roger Goodell Recusal Goodell Roger Seeks Appeal -10 . See PORTS 99. Judy Battista, 94 97. McCann, 98. 100. Will Brinson, 93. 95. McCann, 96. Tagliabue then issued a decision that vacated the players’ In addition to the discipline against the Saints organization and the

BRAMS Hargrove was originally suspended for suspended eight for three games; games; outside defensive end linebacker Will middle Scott Smith was linebacker Fujita suspended was Jonathan for four Vilma games; Saints Against and Penalties Bountygate was suspended for an entire season. Supp. Supp. 2d 591 (E.D. La. 2013). Defamation Case Against NFL Commissioner players from suing the commissioner for agreement’s arbitration discipline proceeding. resulting from a collective bargaining appealed appealed that decision, Goodell Commissioner, Paul Tagliabue, a lawyer, would hear the appeals instead announced that his predecessor of Goodell. as http://www.reuters.com/article/2013/01/18/us-nfl-vilma-lawsuit-idUSBRE90H00W20130118. http://www.reuters.com/article/2013/01/18/us-nfl-vilma-lawsuit-idUSBRE90H00W20130118. at D6. By doing so, the Commissioner is unfair. inherently system existed the and implicitly acknowledged that a conflict of interest CBSS suspensions but defended Commissioner Goodell’s findings.

CBA, this type of arbitrators. grievance is heard by a three-member panel of of the suspensions and adjusted the remaining two. 486 resulted from disciplinary action were heard an by independent tribunal, then it could use a system of precedent and make sure the punishments are consistent. Such a system occurred from the suspensions of players involved in the scandal. may have prevented the debacle that coaches for Bounty-Gate, Commissioner Goodell suspended four Saints players accused of being the ring leaders bounty of, pool. and participating in, the A that Goodell had abused his power in suspending them. football/21362069/paul-tagliabue-vacates-all-player-discipline-in-saints-bounty-case. football/21362069/paul-tagliabue-vacates-all-player-discipline-in-saints-bounty-case. overturned the suspensions and reissue mandated the suspensions if that he found “there Goodell was intent could to creating injure incentives beyond for only performance.” also sued Goodell for defamation. 34609-mqt_97-2 Sheet No. 140 Side B 03/17/2014 11:30:34 03/17/2014 B Side 140 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 141 Side A 03/17/2014 11:30:34 ,

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,” 8 NFL (2012) This decision decision This 103 OUNTY While the ex- the While 487 487 102 /“B ERFORMANCE -P ) 3/10/2014 FOR - Tagliabue demonstrated the flexibility flexibility the demonstrated Tagliabue ELETE AY 104 D P OT OT

N O Id. http://sports.cbsimg.net/images/blogs/FinalDecision_Saints_Ap (D

AINTS ) S MAKING THE RIGHT CALL RIGHT THE MAKING ARCH The ASAT would provide an independent tribunal tribunal independent an provide would ASAT The Reviewing Reviewing the Complete Timeline of NFL, Saints Bountygate Scandal M (Dec. 11, 2012), http://bleacherreport.com/articles/1441646-reviewing- 105 available at RLEANS at 13, 22. 22. at 13, O ORRECT ORRECT EPORT at 13. Tagliabue noted that previously players had been fined, but not (C at 22. at R EW Tagliabue also determined that the players’ suspensions were were suspensions players’ the that determined also Tagliabue INAL INAL . Id. . id. See . Id. 101 -F 102 104 105. Jesse Reed, 103 101. N The circular nature of the NFL’s disciplinary process was evidenced M K LEACHER BRAMS C Y peal.pdf. peal.pdf. conduct. for suspended similar B Commissioner found that the players’ conduct was detrimental game, to the he vacated the evidence punishments and conflicting because reports from of team a officials. lack of necessary the-complete-timeline-of-nfl-saints-bountygate-scandal. the-complete-timeline-of-nfl-saints-bountygate-scandal. The NFL players; the players then initially filed grievances and appeals and one filed a suspended defamation lawsuit; the the Commissioner rejected players the filed players’ anotherappeals; the grievance; the grievance Commissioner Goodell arbitration found and to panel at for ordered look players the the case again; Goodell recused himself and appointed former-NFL Commissioner Paul Tagliabue to nightmare). the suspensions ended the (and vacated Tagliabue finally, and hear case; the unwarranted because they precedential were punishment grossly for disproportionate similar to actions. the circumstances. Thus, the NFL should take serious consideration of an independent arbitral tribunal that would make the process faster, more fair, and more consistent. that would significantly reduce the time of an appeals process, and come to a fair and consistent decision based on the totality of the

2013] 2013] believed that the process of should have taken acquiring weeks, but the facts league office was misled and by members enforcing of discipline the Saints organization, which years. caused it to take more than three A that only an commissioner independent certainly lacks, in this type of arbitrator situation. If these disputes can were truly designed to be heard by have, an independent tribunal, like the and ASAT, these procedural ills would be eliminated. that the by Bounty-Gate. implicitly stated that in suspending the players, Commissioner Goodell had been overly harsh, commissioner to determine punishments and revealed that the penalties which ultimately diminished were unfair and his inconsistent. power as (Tagliabue, Arb.), (Tagliabue, Arb.), 34609-mqt_97-2 Sheet No. 141 Side A 03/17/2014 11:30:34 03/17/2014 A Side 141 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 141 Side B 03/17/2014 11:30:34

111 M K PM

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The Spurs Spurs The Id. During his his During 106 In 1967, then- 1967, In 110 note 2, at 186. 186. 2, at note

supra supra Basketball Players’ Night Off note 69, at 149. Parlow, Parlow, supra supra note 69, at 150–69 (discussing the changes to In 1975, Lawrence O’Brien was was O’Brien Lawrence 1975, In see also see 113 O’Brien contributed to the NBA’s NBA’s the to contributed O’Brien supra , Dec. 1, 2012, at A1. The players that were rested 114 It was under Kennedy that the players players the that Kennedy under was It Prior to 1971, the League President was was President League the 1971, to Prior IMES

112 T

108 Id. note 69, at 149; Lockwood, Lockwood, , N.Y. note 69, at 150–52; Sam Borden, note 69, at 149. 149. at 69, note note 69, at 149. 149. at 69, note MARQUETTE LAW REVIEW LAW MARQUETTE supra ) 3/10/2014 NBA Global Games are Proud Accomplishment for Stern note 2, at 186; Lockwood, These examples, among others, demonstrate that the the that demonstrate others, among examples, These supra supra supra One such situation was in 1953 when the NBA NBA the when 1953 in was situation such One 107 ELETE 109 D supra supra See generally at 147–48. 147–48. at OT OT C. The Basketball The NBA Commissioner Czar: N Lockwood, Lockwood, at 150. 150. at

O (D Parlow,

. Id. . See id. . Id. . . See , Oct. 2, 2013, at C1 (stating that Stern will be stepping down as NBA Commissioner -10 114 113. Lockwood, 106. Sam Amick, 108. Lockwood, 109 110 111 112 The NBA got off to a much slower start than the MLB and NFL, as The majority of issues in the NBA’s disciplinary process have 107. Lockwood,

BRAMS ODAY it did not appoint its first commissioner until 1967, and did not give him broad authority until 1971. NBA’s policy for disciplining players and teams is unfair, inconsistent, and inflexible. President Walter Kennedy’s title was changed to Commissioner. on Feb. 1, 2014). Makes a Stand for Sitting Out President suspended a player indefinitely for gambling. stemmed from the current commissioner, David Stern. T 488 A include Tim Duncan, Manu Ginobili, and Tony Parker, who have all seasons in played the NBA, more and all than with ten their current team, the San Antonio Spurs. only lost the game by five points despite not playing their three stars and facing the defending Miami champion Heat Miami. in unionized and negotiated a CBA. appointed NBA Commissioner. responsible for player discipline, circumstances. though he only did so in limited Seeing the success of this granted the system commissioner expansive in authority the to discipline MLB, the players League’s in in best interests. 1971 the owners tenure as commissioner, Stern has instituted a players dress for code, off-court suspended conduct, and million dollars fined for resting its one star players for organization one game during a a stretch quarter- of away games. merger with the American Basketball Association, but his period as the NBA Commissioner’s authority while David Stern has held the position). the Stern held authority has the Commissioner’s while NBA David 34609-mqt_97-2 Sheet No. 141 Side B 03/17/2014 11:30:34 03/17/2014 B Side 141 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 142 Side A 03/17/2014 11:30:34

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(Oct. 20, 2005, 6:42 PM), PM), 6:42 2005, 20, (Oct. L. 489 489 COM Encyclopedia Encyclopedia Playoff Edition Additionally, the off- the Additionally, 119 PORTS S

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, 7 D S Id. , http://www.nba.com/history/players/erving_bio.html ELETE Through the best interest power, Stern Stern power, interest best the Through D 205, 209 (2007). Recently, Stern announced he will stephe announced Stern Recently, (2007). 205, 209 121 ALL . OT OT COM N EV , W

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NBA Player Dress Code Technical Foul: David Stern’s Excessive Use of Rule-Making During his tenure, Stern has used the “best “best the used has Stern tenure, his During Stern regulated both on- and off-court conduct, conduct, off-court and on- both regulated Stern (D note 2, at 186–87;

L. ) 116 117 note 117, at 57–59. at 57–59. 117, note , NBA. MAKING THE RIGHT CALL RIGHT THE MAKING note 116, at 210. at 210. 116, note ARCH note 117, at 57–58.

supra PORTS M supra 115 S supra supra

. supra supra note 116, at 210. 116, note ARQ 59–60. 59–60. ORRECT ORRECT

This This merger would secure the NBA as the dominant basketball league by Julius Erving Wilson, (C at 55–56 (quoting at Parlow, supra supra See , 18 M , 18 INAL INAL . Id. . Id. . See . Id. (Oct. 26, 2012), http://www.sportsbusinessdaily.com/Daily/Issues/2012/10/26/Leagues- -F (2010). (2010).

David Stern has held the position of NBA Commissioner since his 118. Showalter, 119. Wilson, 120 121. 122 117 115 116. Brent D. Showalter, M K AILY BRAMS C Y appointment in 1984. Biography of has also regulated comments that could be viewed critical as offensive of, to, the or referees or the League. medically necessary, to limit self-promotion. players from wearing Band-Aids on their faces during games, unless and-Governing-Bodies/Stern-retires.aspx. and-Governing-Bodies/Stern-retires.aspx. Despite naming a successor, Stern’s replacement owners. the by approved be to need will Growing Power of the NBA Commissioner http://www.nba.com/news/player_dress_code_051017.html). http://www.nba.com/news/player_dress_code_051017.html). Stern was trying to diminish the NBA’s “hip-hop” reputation that he feared was Showalter, damaging the public’s view of the game. 57–60 D

2013] 2013] commissioner was mainly notable for player discipline. economic disputes rather than A Authority absorbing the top four teams of the American Basketball Association, which prominent included such players as Julius “Dr. J” Erving. down down as commissioner in February 2014, his thirtieth year holding the position. Jason Stern Gay, Gets Ready for the Buzzer (last visited Oct. 2013). 15, Down Feb. ‘14, Announces Silver as Successor for NBA Commissioner court dress code requires whenever they are players engaged in to team or “wear league business.” Business Casual attire reasoning that Stern fined Dennis Rodman $50,000, the largest fine an of NBA player at that point, for a comment insulting Mormons after a interest clause” to expand the power of the commissioner much farther than his predecessors. including an off-court dress code and an on-court dress code that limited accessories players can wear on-court. used his authority to unilaterally create new rules and occasionally issue unprecedented punishments. 34609-mqt_97-2 Sheet No. 142 Side A 03/17/2014 11:30:34 03/17/2014 A Side 142 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 142 Side B 03/17/2014 11:30:34

: M K PM U.

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223, 248–49 (2003). Rodman

. ASKETBALL Two Suns players, players, Suns Two ASHMORE note 69 at 154. The League’s C B 126 EV R

supra LLIS L. ATIONAL notes 192–201 and accompanying text. text. and accompanying 192–201 notes Professional Professional Sports Leagues and the First N PORTS S

. While they merely stepped onto the the onto stepped merely they While THE infra infra

, at 248–49. , 248–49. at Lockwood, Lockwood, 127 ARQ OF

See 124 supra Like the NFL and MLB commissioners, commissioners, MLB and NFL the Like http://www.nba.com/media/rule_book http://www.nba.com/media/rule_book _2006-07.pdf); ULES , 13 M 130 R note 125, at 452. If the player feels the commissioner abused his This situation demonstrates the inconsistency and and inconsistency the demonstrates situation This MARQUETTE LAW REVIEW LAW MARQUETTE FFICIAL Dispute Resolution in the NBA: The Allocation of Decision Making 129 ) 3/10/2014 available at note 117, at 59–60. supra , O NBA Suspends Stoudemire, Diaw for Leaving Bench T Under the latter reasoning, Stern has repeatedly fined fined repeatedly has Stern reasoning, latter the Under ’ ELETE 123 D supra supra EP (2001). 202 (2000); McKinny, McKinny, (2000); 202

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-10 . Jeffrey A. Mishkin, 126 130 Commissioner Stern has also been criticized for his inflexible 123. Christopher J. McKinny, Comment, 127 128 129. Marc Stein, 124. Wilson, 125 EV

A–Z PERATIONS R

N BRAMS O approach to discipline under the rule that requires players to stay in “the in “the to stay that requires players under the rule discipline approach to immediate vicinity of their bench” during a fight on the court. Phoenix Suns and two-time League MVP. example of this inflexible approach occurred following the 2007 Western approach occurred following example of this inflexible Conference Semifinals, where in game four San Antonio Spurs forward Robert Horry flagrantly fouled Steve Nash, the star guard of the Commissioner Stern would be in a conflict of interest hearing an appeal Among the Commissioner, Impartial Arbitrator, System Arbitrator, and the Courts also Dallas Mavericks owner Mark media outlets. through various Cuban for disparaging the referees inflexibility of Commissioner Stern’s punishments. Additionally, under the CBA, players may only appeal to the commissioner, who made the decision to suspend them. 06–2007, § VII.c (2006), (2006), § VII.c 06–2007, including star forward Amare Stoudemire, immediately jumped up from the bench following the incident. 7:02 PM), http://www.nba.com/news/spurssunssuspension_070515.html (quoting B (quoting http://www.nba.com/news/spurssunssuspension_070515.html PM), 7:02 court, they were both suspended for one game. 16, 2007, 8:36 PM), http://sports.espn.go.com/nba/playoffs2007/news/story?id=2871615. http://sports.espn.go.com/nba/playoffs2007/news/story?id=2871615. PM), 8:36 16, 2007, power in making the decision, then the player can file a grievance against the League, which an independent arbitrator would hear. is collective discussed bargaining agreement A L. 490 game in Utah. A Amendment: A Closed Marketplace L Duncan, the San Antonio superstar court, but because the altercation occurred closer to the Suns’ bench, forward, he also stepped was onto not suspended. the was punished for saying Mormons were “asshole[s].” E 34609-mqt_97-2 Sheet No. 142 Side B 03/17/2014 11:30:34 03/17/2014 B Side 142 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 143 Side A 03/17/2014 11:30:34

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See See 12:33

(Dec. 13, 2011, 2011, 13, (Dec. PORTS S note note 23 (discussing the

491 491

supra , FOX 138 This example is another another is example This Once separated, Sprewell Sprewell separated, Once Sprewell was asked to leave leave to asked was Sprewell Belson, Belson, 131 133 132 ) 3/10/2014 See generally ELETE After performing an investigation of the the of investigation an performing After D 134 at 156. 156. at

OT OT note 2, at 195. at 195. 2, note N This situation is an example of how an an how of example an is situation This O note 69, at 152. 152. at 69, note 136 (D

Parts III.C,Parts VI. ) supra supra Cal. Penal Code §§ 240, 242 (West 2008). The arbitrator seemed seemed arbitrator The 2008). (West 242 240, §§ Code Penal Cal. note 69, note MAKING THE RIGHT CALL RIGHT THE MAKING Three Pacers players were suspended for violence violence for suspended were players Pacers Three supra See 139 In His Twilight, Stern Coming Small up ARCH infra infra This problem is likely caused by the fact that either either that fact the by caused likely is problem This M supra 137 ORRECT ORRECT Lockwood, Lockwood, discussion (C at 152–53. 152–53. at 153. at Parlow, 154; at INAL INAL . See . Id. . Id. . Id. . Id. . See -F note 193 and accompanying text. text. accompanying and 193 note 131. Mark Kriegel, 132 133 134 135 136 138 137. In this case the fact that Sprewell’s suspension was reduced is unfathomable; had 139. Lockwood, The second event involved a situation similar to the Sprewell Two other events have shaped the perception of the NBA M K BRAMS C Y against fans because the NBA determined that since the conduct side can fire an arbitrator for any reason, and would proposed ASAT be because solved the tribunal by would be the independent from both reasons for parties firing arbitrators. and require arbitration. In 2004 a brawl broke out at a Detroit Pistons game against the Indiana Pacers.

2013] 2013] to a decision in which he participated. A independent independent arbitration can be effective, likelihood but to find also a of middle ground the of punishment arbitrator’s that parties will unhappy. leave both a practice by his coach, but instead coach of to leaving, Sprewell the wrestled the ground and choked him. illustration of a situation that the ASAT would improve. illustration of a situation Commissioner and his ultimate authority. The first was the suspension of Latrell Sprewell in the winter of 1997. 11:49 AM), http://msn.foxsports.com/nba/story/nba-david-stern-running-new-orleans-hornets- rejecting-trades-has-become-incredible-shrinking-commissioner-121211. However, Sprewell filed a grievance, and the arbitrator selected by the NBA and National Basketball Players Association (NBPA) reduced the suspension to the remainder of the current season, or from eighty-two to only sixty-eight games. the coach decided to press charges, Sprewell could have easily been arrested for assault and battery of his employer. to not want to side with either party for fear of a vengeance firing infra from the other side. firing of an experienced arbitrator after an unpopular decision). If the Sprewell situation was not worthy of a full-year suspension, system. then presumably nothing will be under the current incident, Commissioner Stern suspended Sprewell for one full year. continued to destroy team grazing him with one property punch. and attacked the coach again, 34609-mqt_97-2 Sheet No. 143 Side A 03/17/2014 11:30:34 03/17/2014 A Side 143 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 143 Side B 03/17/2014 11:30:34

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147 When the 141 These examples examples These

(Nov. 21, 2004, 2:57 AM), AM), 2:57 2004, 21, (Nov. 146 COM , ESPN. This fight is yet another example of how how of example another yet is fight This 144 note 69, at 155–56.

The arbitrator found that Commissioner Stern Stern Commissioner that found arbitrator The note 69, at 157–58. 157–58. at 69, note 145 MARQUETTE LAW REVIEW LAW MARQUETTE 143 supra note 2, at 306–07. at note 306–07. 2, ) 3/10/2014 supra notes 118–29 and accompanying text. text. accompanying and 118–29 notes ELETE supra supra D However, a New York district court held that because the the because that held court district York New a However, . This incident was a severe black-eye on the NBA and clearly a situation OT OT 142 N Lockwood, Lockwood, at *11. *11. at Artest, Jackson Charge Palace Stands

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See . See . See supra . Id. . Id. . See id -10 146 147 While the Pacers and the Sprewell situations give the impression that While the Pacers and the Sprewell 143 144. Lockwood, 140. Sirotkin, 141 142. Nat’l Basketball Ass’n v. Nat’l Basketball Players Ass’n, No. 04 Civ. 9528(GBD), 145

BRAMS the independent arbitration provision in the NBA’s CBA both is processes effective, took longer than necessary were and produced unsatisfactory results that to both parties involved. system could be improved by allowing an independent tribunal to hear a greater number of disciplinary the process. fairness, consistency, and flexibility of inquiries, which would increase the http://sports.espn.go.com/nba/news/story?id=1927380. http://sports.espn.go.com/nba/news/story?id=1927380. did not have “just cause” to suspend at least one of the players, suspensions so were the reduced.

492 occurred during an NBA game, it was necessarily on-court conduct. A 2005 WL 22869, at *3 (S.D.N.Y. 2005). (S.D.N.Y. at *3 WL 22869, 2005 where the commissioner should have been able to clause. suspend players under the best interest exemplify that players have little protection from under the inconsistent current rulings disciplinary structure. Commissioner Stern has also demonstrated remarkable inflexibility in determining discipline. the current arbitration system in disappointing results. the NBA leaves both parties with arbitrator reduced the players’ suspensions, the NBA sued the NBPA, arguing that because the conduct was jurisdiction. on-court the arbitrator had no The NBPA filed a grievance grievance arbitrator, and but appealed the the NBA believed the refused suspensions suspensions were to to not subject participate the to because arbitration. it grievance arbitrator. specific conduct did not typically occur during the course of the game, it was not on-court conduct and was thus subject to appeal to the 34609-mqt_97-2 Sheet No. 143 Side B 03/17/2014 11:30:34 03/17/2014 B Side 143 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 144 Side A 03/17/2014 11:30:34 , PM

12:33

These four four These 153 , http://proicehockey. http://proicehockey. , 493 493 In addition to recent recent to addition In BOUT By disciplining all four four all disciplining By 151 154 , A , (Feb. 12, 2013, 11:30 PM),

Id. , http://www.nhl.com/ice/page.htm?id=25426 ) 3/10/2014 COM CYCLOPEDIA This position expanded the authority of of authority the expanded position This E- ELETE 149 D NHL the tenure, his of course the Over , NHL. (1998). (1998).

(June 22, 1999, 8:11 PM), http://sportsillustrated.cnn.co PM), 8:11 1999, 22, (June 150 OT OT N 136

O Bettman has also resorted to an exceptional exceptional an to resorted also has Bettman COM PORTS (D

152 ) The Sabres have never returned to the Stanley Cup finals. finals. Cup Stanley the to returned never have Sabres The 135, National Hockey League Jurisprudence: Past, Present and Future The LongestThe NHL Suspensions

MAKING THE RIGHT CALL RIGHT THE MAKING In order to lure Gary Bettman, then the General General the then Bettman, Gary lure to order In , S Id. L. ARCH 148 , CNNSI. , M notes 5–15 and accompanying text. text. accompanying 5–15 and notes PORTS S

J. ORRECT ORRECT (C

ALL H INAL INAL D. The Most Recent Development: The NHL Commissioner . See supra . Id. Bettman . Id. .Gary . Id. -F 152 153. Jamie Fitzpatrick, 149 150 151 154 148. Thomas J. Arkell, Until 1992, the most powerful position in the NHL League office M K ETON BRAMS C Y has endured three lockouts and, in an attempt to increase public interest in the game, instituted various rule changes. about.com/cs/history/a/nhl_suspensions.htm about.com/cs/history/a/nhl_suspensions.htm (last visited Sept. 1, 2013). The longest was for twenty-five and games the for shortest ten games. (last visited Dec. 31, 2013). 2013). Dec. 31, visited (last upheld the goal despite a goal crease rule that had been enforced under a no-tolerance policy throughout the season. Stanley Cup Champions and Finalists m/hockey/nhl/1999/playoffs/news/1999/06/20/sabres_bitter/. m/hockey/nhl/1999/playoffs/news/1999/06/20/sabres_bitter/. After the game, NHL officials the President to include a similar power to the commissioners of other professional sports leagues. 8 S incidents involved: one player sucker-punching another in the back the of head; one player striking another player in the one player using his player in stick the to side the strike of head; another face with his stick; and one player elbowing another in the head.

2013] 2013] A players for “the rest of the setting season,” a Commissioner precedent for Bettman similar avoided conduct. Additionally, despite that the commissioner has the the authority to discipline for fact off-ice conduct, he chose not to discipline Dany Heatley when Heatley was arrested for reckless driving and charged with vehicular homicide for driving over was the President. http://www.sportsecyclopedia.com/nhl/comish/bettman.html. http://www.sportsecyclopedia.com/nhl/comish/bettman.html. These rule changes included an impromptu rule interpretation change during the 1999 Stanley Cup finals in which during the third Dallas Stars forward Brett Hull scored a goal with a skate in the crease, which had previously been characterized as a situation where a goal would referees be disallowed, but allowed the the goal and Continues Controversy the Stars won the Stanley Cup over the Buffalo Sabres. inconsistent discipline, suspension in multiple punishing cases four involving players extreme for on-ice “the rest misconduct, of the season.” Counsel of the NBA, away from the NBA the owners offered him a new position: NHL Commissioner. 34609-mqt_97-2 Sheet No. 144 Side A 03/17/2014 11:30:34 03/17/2014 A Side 144 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 144 Side B 03/17/2014 11:30:34

155 M K PM

OST note C Y [97:2 P PORTS 12:33 This This S

. 161 , Dec. 12, , Apr. 27, supra In each each In ENVER 158 ARQ COM COM Feb. Feb. 5, 2005, at , D

, , 6 M IMES , ESPN. , ESPN. T

note 66, at 361; Sirotkin,

note 23; Heimlich, , N.Y. supra supra The commissioner system system commissioner The supra 160 Nuggets’ Smith Suspended 7 Games He is limited only by vague provisions in in provisions vague by only limited is He 159 The ASAT would thus achieve the best of of best the achieve thus would ASAT The at 291, 299–302. 299–302. 291, at

note 125, at 452; Reece, Reece, 452; at 125, note 162

156 note 2, at 304–09; Belson, supra The Legal Concept of Professional Sports Leagues: The note 2, note note 157, at 67. at 67. 157, note MARQUETTE LAW REVIEW LAW MARQUETTE Little Little Charged with Felony DUI, Speeding ) 3/10/2014 the disciplinary structure outlined by each league’s league’s each by outlined structure disciplinary the supra supra supra Heatley Sentenced to 3 Years’ Probation 157 Ex-O’s Hurler Ponson Gets Five Days for DWI ELETE D , Mishkin, , Benjamin Hochman, OT OT e.g. N Sirotkin, Sirotkin, at 292–98. 292–98. at , Lentze, Lentze,

O . (1995). (1995). (D

. See . See .See, e.g. .See, . See . See .Id 67 -10

note 2, at 291, 300–01. 300–01. 291, at 2, note 162 161 156 While the advent of the commissioner has undoubtedly helped the 155. Ray Glier, 157. Gregor Lentze, 158 159 160 65,

BRAMS supra four major American professional sports leagues develop and thrive in the last century, discipline at his discretion without regard to any system of precedence or an defined explicitly code. league, the commissioner has seemingly unbeatable power to distribute has been so economically successful that it would make completely little abolish sense it, but to establishing an independent arbitral tribunal to hear appeals would make the system more fair and consistent. CBA has left much to be desired for both and leagues players. D5. L.J.

494 eighty miles-per-hour in a thirty-five miles-per-hour zone and crashing his Ferrari, which resulted in the death of his teammate and friend. A 2005, http://sports.espn.go.com/mlb/news/story?id=2256427 (explaining that Ponson’s MLB’s contract Sidney was terminated by driving the while team impaired); one week after Ponson was convicted of 15. Commissioner Commissioner and an Alternative Approach from a Corporate Perspective 2004, http://sports.espn.go.com/nfl/news/story?id=1790240 (noting that the Leonard NFL Little suspended for the first accident). a involuntary for traffic manslaughter half of the 1999 season without pay after he pled guilty to the league’s CBA or league constitution. (Aug. 28, 2009, (noting 2:53 that the NBA PM), suspended J.R. Smith http://www.denverpost.com/nuggets/ci_13223490#ixzz0ejFsIlVu for a reckless death driving of accident his resulting friend); in the This same conduct would likely have been suspension-worthy in any of leagues. the other three new structure responsibilities while retaining the commissioners’ would power to discipline. Instead, this new body would establish a system of precedent to increase alleviate the the integrity of the leagues and remove much of the commissioners public criticism of commissioners that arises of when commissioners own disciplinary hear decisions. appeal appeals to their 34609-mqt_97-2 Sheet No. 144 Side B 03/17/2014 11:30:34 03/17/2014 B Side 144 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 145 Side A 03/17/2014 11:30:34

165 166 167 90 PM

(1995), (1995), R. 9.05 R. 9.05 12:33

June June 19, (May 8, 8, (May

PORTS , S 168

ULES COM R 167,

ODAY T

L.J.

, MLB. 49 (Roger Blanpain et USINESS OF ASEBALL ASEBALL B , USA B PORTS S

495 495 . This Part explore will TATES THE THE S 164 & ARQ FFICIAL OCUMENTS AW O D (Joseph (Joseph Gordon Hylton & Paul M. L NITED

, 5 M U HE 131

T

DITION : E

129, ) 3/10/2014 USTICE AW IN THE OVERNING , 2012 J ELETE L G D OT OT N PORTS EGULATION PORTS O S ASEBALL S

R

, (D

,

B art. VI, § E (providing the procedures and rules regarding salary ) The CBA for each league establishes the the establishes league each for CBA The

note 54, at art. VI, § E, arts. XI, VI, XII. § art. at 54, note & Suspensions Suspensions Doled Out for MLB Brawl MAKING THE RIGHT CALL RIGHT THE MAKING (July 30, 2012, 8:55 PM), http://www.cbssports.com/mlb/blog/eye- URRENT 163 at C ARCH

Hamels Suspended 5 Games for Hitting Harper ITTEN AW BRAMS http://mlb.mlb.com/mlb/downloads/y2012/Official_Baseball_Rules.pdf; http://mlb.mlb.com/mlb/downloads/y2012/Official_Baseball_Rules.pdf; A. The MLB’s Governing Documents M Player Discipline in Team Sports supra L COM M EAGUE

A .

Devin Mesoraco Likely Faces Suspension After Making Contact with III. L J. I. art. XII, § A–B, art. XI, C(1)(a)–(b). § These hearings usually arise from CBA,

ORRECT ORRECT

PORTS PORTS PORTS AJOR AJOR at (C S OGER M R

ATTHEW ATTHEW INAL INAL available available at . Id. . See generally id. See M , CBSS -F

167 166 164. Jan Stiglitz, 163. Each of the professional American sports leagues are governed by 165. MLB The MLB has three different systems of arbitration: one for salary M K , Matt Snyder, BRAMS C Y suspensions due to a fight on the field, touching an umpire, or a pitcher intentionally hitting a batter. arbitration of MLB players). Umpire on-baseball/19691226/devin-mesoraco-likely-faces-suspension-after-making-contact-with- umpire; Todd Zolecki, al. eds., Wolters Kluwer 2011). Kluwer 2011). al. Wolters eds., various documents, including constitutions, league importantly, bylaws, CBAs. and most

(2010); 2013] 2013] both worlds by maintaining the power of the commissioner to act in the best interests of the increasing public trust in the system and the sport. league while curtailing negative publicity and A Anderson eds., 1999). eds., Anderson interest of Baseball,” players participate in Executive Vice President, Administration, or the a MLB Commissioner. hearing in front of the Salary arbitration will not be discussed in this Comment because it is a completely separate system that does not For appeals involve of discipline player stemming discipline. from on-field conduct or that “conduct is materially detrimental or materially prejudicial to the best (2012), e.g. procedures the disciplinaryand scope of system. 2012, 4:27 PM), http://mlb.mlb.com/news/article.jsp?ymd=20120507&content_id=30648282&v PM), 2012, 4:27 key=news_mlb&c_id=mlb; reprinted in the arbitration provisions in the governing documents of the MLB, NFL, documents of the provisions in the governing the arbitration NBA, and NHL. It will also assess what aspects are effective and can be incorporated into the ASAT, as well as those ASAT. by the be changed how they should that are ineffective and disputes, one for on-field discipline, and one for all other grievances. 34609-mqt_97-2 Sheet No. 145 Side A 03/17/2014 11:30:34 03/17/2014 A Side 145 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 145 Side B 03/17/2014 11:30:34

174 M K PM

C Y [97:2 12:33

at art. XI, § A(1). at A(1). art. § XI, These impartial impartial These http://bizofbaseball.com/ http://bizofbaseball.com/ The ASAT would would ASAT The 173 Id. 169

available at Additionally, the best interests interests best the Additionally, 168 art. XII, § D. art. XII, § D.

. art. II, §§ 2–3 (2008), (2008), . art. 2–3 II, §§

170 This impartial arbitrator must be agreed upon upon agreed be must arbitrator impartial This ONST 172 note 54, at 54, note note 54, at 54, note MARQUETTE LAW REVIEW LAW MARQUETTE C which is composed of two-party arbitrators (one (one arbitrators two-party of composed is which ) 3/10/2014 171 supra supra

ELETE EAGUE D L art. XI, B. § These grievances include suspensions under the drug policy as

CBA, CBA, art. XI, § A(9). A(9). art. § XI, B. art. § XI, OT OT

N 176 at at None of these policies would be incorporated into the the into incorporated be would policies these of None at O AJOR Part V. Part 175 (D

. Id. . Id. . Id. . Id. . Id. -10 infra 170. MLB 169. M 168. MLB 171 172 173 174 175 176. Further discussion of the ASAT specific policies and proposed provisions can be The arbitration system for all other grievances under the CBA takes

BRAMS docs/MLConsititutionJune2005Update.pdf. docs/MLConsititutionJune2005Update.pdf. arbitrators can be fired at any time, for any reason, by either the League or the Association, so long as they are not currently handling a case. by the League and the Association, otherwise the American Arbitration Association (AAA) submits a League and list Association must narrow of down to one. potential arbitrators that the 2007, http://usatoday30.usatoday.com/sports/baseball/2007-06-18-brawl-suspensions_N.htm. 496 uses evidence the League to all given the right cases, players are In these in an investigation regarding that player’s discipline and can challenge the just cause for their punishment. A much more time arbitration to panel, resolve because they are conducted by the clause can be found in commissioner may investigate and punish anything he believes is “not in the MLB Constitution, establishing the best interests of the national game of Baseball.” that the well as all other non-disciplinary grievances allowable in well CBA. all non-disciplinary allowable the as other grievances found off-field conduct. The ASAT would incorporate the MLB’s approach to appealing discipline by providing all evidence investigation, the but the league challenge hearing used would in be conducted the by ASAT instead of by the League. not alter the first step in these punishments; the League CBA would still govern player discipline and allow the commissioner, or a representative of the commissioner’s office, to impose penalties on players for on- and appointed by the League and one by the Players’ Association) and one “impartial” arbitrator. Decisions by the panels may not binding. create precedent and are final and ASAT; in fact, the ASAT would use essentially provisions. the opposite of these 34609-mqt_97-2 Sheet No. 145 Side B 03/17/2014 11:30:34 03/17/2014 B Side 145 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 146 Side A 03/17/2014 11:30:34

,

184 PM

Id. See id. 12:33 Still, Still,

183 (Oct. 19, 2013, These These arbitrators His power to to power His 179 Id. PORTS art. VIII, § 8.3 (2006), Additionally, his his Additionally, S

180 The CBA provides provides CBA The 497 497 182 , NBC EAGUE L art. 43, § 6. The most senior non-injury

OOTBALL at F L Id. ’ § 2(i). ) 3/10/2014

Instead, the commissioner assigns a a assigns commissioner the Instead, arts. 6, 8–10, 13, 21, 23, 26. The system arbitrator

AT 178 N at arts. 1, 4, 6–19, 26–28, 31, 68–70. The league and the

ELETE Id. D at OT OT Id. N O The commissioner can elect to hear the appeal himself at his

(D

) MAKING THE RIGHT CALL RIGHT THE MAKING note 72, at arts. 15, 16, 43. The impartial arbitrator has authority authority has arbitrator impartial The 43. 16, 15, arts. at 72, note note 72, at art 46, art at 72, note However, player discipline doled out by the NFL NFL the by out doled discipline player However, YLAWS OF THE ARCH B 177 B. The NFL’s Governing Documents M supra supra AND AND Carolina Safety Mike Mitchell Takes Thinly Veiled Shot at Ndamukong Suh Since the league office has handed down the punishment, this in essence (Oct. 28, 2013, 5:04 PM), http://detroit.cbslocal.com/2013/10/28/carolina- . art. 46. ORRECT ORRECT

These appeals are heard between eight to thirteen days days thirteen to eight between heard are appeals These Unfortunately, the CBA does not articulate what these terms mean. at art 46, § 2(a). (C at at art. at VIII,§ 8.3(E). art. at 1(d). 46, § Id. 181 http://static.nfl.com/static/content/public/static/html/careers/pdf/co_.pdf. ONST INAL INAL . Id. . Id. ETROIT ETROIT . Id. . Id. . Id. -F 178 179 The NFL employs three types of arbitrators that each rule on 177. NFL CBA, 181 182.CBA, NFL 183 184 180. C M K BRAMS C Y different conflicts: an impartial arbitrator, system a arbitrator. notice arbitrator, and a players association agreed on a notice arbitrator, who non-injury grievance is or impartial responsible arbitrators. for selecting the four is responsible for all other issues. grievance arbitrator is next in line for the position of notice arbitrator. in window July. ten-day during only a but reason, any fired either for can be by side also discretion. League officer representative to hear a player’s appeal. for a minimum fine for season, the each league and the NFLPA agree year on a schedule of fines. and, before the beginning of the CBS CBS D

2013] 2013] A detrimental to the football.” best interests of the League or professional disciplinary powers include the power to punish any “conduct to rule over decisions involving free agency, rookie compensation, the draft, some salary cap concerns, and most non-injury issues. available at 7:40 AM), http://profootballtalk.nbcsports.com/2013/10/19/merton-hanks-i-fined-ndamukong- vague terms CBA the by keeping cause its help not does league The suh-to-get-his-attention/. because questions of subjectivity are Head Coach inevitable. Mike Shanahan, would like to see the procedure change so Additionally, that the appeals are many, including conducted in a more timely manner and players would miss less Redskins time while the League makes allows the same party to be the police, prosecution, judge, and jury. jury. and judge, prosecution, police, the party be allows same to the the league may increase fines or warrant,” including suspensions where infractions “[w]here were “flagrant circumstances and gratuitous.” Commissioner is not included in any of the provisions that fall under any that fall of the provisions Commissioner in any is not included of these arbitrators’ jurisdiction. safety-mike-mitchell-takes-thinly-veiled-shot-at-ndamukong-suh/; safety-mike-mitchell-takes-thinly-veiled-shot-at-ndamukong-suh/; Michael Merton Hanks: I Fined Ndamukong David Suh to Get His Attention Smith, from the player’s filing for appeal of punishment. hear these appeals is found in the NFL Constitution. Ashley Dunkak, Various Various players believe the league is “out to get them” and for some it is with good reason. 34609-mqt_97-2 Sheet No. 146 Side A 03/17/2014 11:30:34 03/17/2014 A Side 146 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 146 Side B 03/17/2014 11:30:34

M K PM

C Y [97:2 12:33

., NBA N ’ SS

A 191 (Oct. 25, 2013, 2:54

LAYERS LAYERS P , ESPN

The grievance arbitrator arbitrator grievance The 192 ASKETBALL ASKETBALL B L ’ AT N

arts. XXXI & XXXII (2011) [hereinafter NBA NBA [hereinafter (2011) XXXII & XXXI arts. & These fines do not contribute to the the to contribute not do fines These

N ’ 186 Also, while the NFL provides a policy for for policy a provides NFL the while Also, On the other hand, the league can only only can league the hand, other the On 187 If the athlete receiving discipline decides to If the athlete receiving SS 190 185 189 A GREEMENT A MARQUETTE LAW REVIEW LAW MARQUETTE note 72, at art. 46, 1(d). § 46, art. at 72, note note 78. 78. note Coach: Coach: Appeal Process Needs Change ) 3/10/2014 C. The NBA’s Governing Documents The NFL does a commendable job of attempting attempting of job commendable a does NFL The supra http://www.nbpa.org/cba/2011. http://www.nbpa.org/cba/2011. The system arbitrator handles mostly supra supra ELETE 188 ASKETBALL ASKETBALL D B ARGAINING ARGAINING OT OT L ’ B N at art. at 5(c). 46, § art. at 2(a). 46, § 2(i). art. at 46, §

O . 1(d). art. at 46, § AT (D

. Id. . Id. . Id. . Id. .Id available at -10 186.CBA, NFL 187 188 189 190 191 192. N 185. NFL PCP, Unlike the NFL and MLB, the NBA uses only two arbitrators: a While the appeals from player discipline are not currently delegated

OLLECTIVE BRAMS reduce a fine “if it exceeds 25 percent of one week of a for player’s a salary first offense, and 50 percent of one week of a player’s salary for a second offense,” or if the player argues that the warrant circumstances do the not scheduled fine. increasing fines according to a particular more detail as schedule, to what conduct it is “flagrant and should gratuitous,” as it provide would to the ASAT panel. of such conduct prove the extent have to appeal, the League would also have to provide any evidence used give reasoning and for the fine or suspension if it differed from punishments set forth in the CBA. One aspect certainly of be the imitated is NFL the distribution CBA of that player fines, would which would most go to one of a list of charities. C CBA], CBA], grievance arbitrator and a system arbitrator. to an arbitrator under the NFL’s CBA, these appeals would be handled by the ASAT.

its decision. John Keim, 498 Additionally, players can be punished by the PCP, league for which violating the outlines the detrimental to types the league. of behavior the commissioner finds A expeditious hearings, and a similar provision would be in ASAT to ensure place players would not in miss unnecessary time the or play when they should be suspended. PM), thinks-appeal-process-change. http://espn.go.com/nfl/story/_/id/9877119/mike-shanahan-coach-washington-redskins- the NFL and NFLPA agree. the NFL and NFLPA League workers’ salary, instead half assistance trust and the remaining half are donated to a charity on which of the fines go to the players’ 34609-mqt_97-2 Sheet No. 146 Side B 03/17/2014 11:30:34 03/17/2014 B Side 146 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 147 Side A 03/17/2014 11:30:34

199 PM

12:33

The grievance grievance The 193 it would have to be be to have would it 499 499 art. XXXII, § 1. art. § XXXII, 1.

203 at Id. Further, while the NBA NBA the while Further, 202 Part V.A. ) 3/10/2014

infra 200 ELETE D at art. XXXI, § 7(b). XXXI, at 7(b). § art. OT OT N Id. O (D

For these smaller appeals, the commissioner has has commissioner the appeals, smaller these For ) note 192, at art. XXXI, § 9. § 9. XXXI, at art. 192, note Additionally, hearings cannot take place place take cannot hearings Additionally, MAKING THE RIGHT CALL RIGHT THE MAKING 194 197 ARCH M supra In preparation for the hearings, the parties must submit a at art. VI. VI. at art. For the larger appeals, the grievance arbitrator must use use must arbitrator grievance the appeals, larger the For 198 art. XXXI, § 9(a). art. XXXI, § 6. art. XXXI, § 5(a)–(b). art. XXXI, § 4(a). ORRECT ORRECT

195 Like the NFL, the NBA has a list of some of the off-court off-court the of some of list a has NBA the NFL, the Like (C at at at at art. at XXXI, § 9(a)(4). art. at XXXI, § 9(b). at at art. at XXXI, § 9(a). at art. XXXI, § 7(a). If the arbitrator is fired and the league and the players players the and league the and fired is arbitrator the If 7(a). § XXXI, art. at 196 a system the ASAT would alter. would ASAT the system a INAL INAL 201 . Id. . Id. . Id. . Id. . Id. . id. See . Id. . Id. . Id. -F 202. Further this discussion system of 203.CBA, NBA 201 200 199 The NBA uses a structure that only allows for an arbitrator to rule 195 196 197 198 194 193 M K BRAMS C Y house, on the most serious penalties while handling smaller penalties in- decision. an “arbitrary and capricious” standard of review of the commissioner’s joint statement of the issue and evidence to are the other side required at least to a week present in advance all of the relevant hearing. provides a schedule for fines and suspensions, conduct that will result in punishment and a schedule of fines, but not it is very specific. immediately, or even quickly, because each days’ notice. side is guaranteed thirty arbitrator is responsible for those handling disputes arising from disciplinary a fine of disputes, at least fifty-thousand but dollars or a suspension only of at least twelve games, anything less can only be appealed to the commissioner. agency. related disputes, those free to monetary including 2013] 2013] is scheduled to serve for the length of the CBA, but can be terminated by either party during a six-day window each summer. A the authority to affirm or reduce increase it. the fine or suspension, but cannot more fully developed to include more specific conduct so the arbitrators could avoid having to schedule for hearings would also be changed interpret to be more efficient, while ambiguous CBA provisions. The The arbitrator is granted broad authority to make decisions related smaller to issues, such as procedural matters and jurisdiction, her decision is final and binding. and his or association cannot agree on Resolution a submits and Prevention list of eleven the that lawyers choose parties can to from the next arbitrator, the arbitrator. grievance be next the International Institute for Conflict 34609-mqt_97-2 Sheet No. 147 Side A 03/17/2014 11:30:34 03/17/2014 A Side 147 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 147 Side B 03/17/2014 11:30:34

, N M K PM ’

SS C Y [97:2 A 12:33 If a a If

211 S ’ EPTEMBER Id. EAGUE AND L LAYER 2012–S P

For the on-ice on-ice the For 16, 207 OCKEY

H 204 EAGUE

L http://www.nhl.com/nhl/en/v3/ EPTEMBER S

ATIONAL ATIONAL : N OCKEY By including “resulting in in “resulting including By H Either party may dismiss this this dismiss may party Either 208 available at notes 5–15 and accompanying text. accompanying and 5–15 notes 205 L ’ at art. 18, § 4(b)(ii). ETWEEN AT Id. SSOCIATION B N A

See supra ’ art. art. 18, 2. § For instance, a particularly hard hit in a &

Id. at

LAYERS The NHL CBA allows the commissioner to to commissioner the allows CBA NHL The P GREEMENT EAGUE 206 A L For suspensions up to five games or fines over over fines or games five to up suspensions For note 205, MARQUETTE LAW REVIEW LAW MARQUETTE 210 ) 3/10/2014 EAGUE D. The NHL’s Governing Documents supra L OCKEY ELETE note 193 and accompanying text. text. accompanying and 193 note H D ARGAINING ARGAINING art. 18, 2. § This factor creates considerable confusion and the appearance of art. 18, §§ 1–2. art. 18, 1–2. §§ OT OT

L

’ B N OCKEY at at at art. 18, §§ 4(b)(i), 8(a). The league is also required to give the NHLPA any any NHLPA the give to required also is league The 8(a). 4(b)(i), §§ 18, art. at at arts. 18, 18-A. 18-A. 18, arts. at

O H AT (D Id. Id. In determining the punishment, the League office considers the the considers office League the punishment, the determining In

. Id. . See supra . Id. . Id. 209 -10 210. NHL CBA, 211 Similar to the MLB and NFL, the NHL and the National Hockey 204 205. N 207. 208 209. 206

ATIONAL OLLECTIVE BRAMS to serve for the duration of the CBA. League Players’ Association (NHLPA) appoint an impartial arbitrator subjectivity in discipline because the league player’s the intent. than perhaps so more has given it great weight in decision-making, hearing. to the prior to use plans evidence it close game may not result in a suspension where it might is not if game lopsided. result it the in close may a game where suspension player’s intent, the specific conduct, any resulting injuries, past offenses, and game situations. C N [hereinafter § NHL (2012) 6 CBA], 15, art. 2022 17, ext/CBA2012/NHL_NHLPA_2013_CBA.pdf. The impartial arbitrator must be a member of of the Arbitrators. National Academy 500 maintaining effectiveness, and authority to rule the on smaller issues, such as arbitrability arbitrators and procedural issues. would These arbitrators have would also have similar the year, except similar that in order to be fired, a party must provide just cause security throughout reason. any to firing for as opposed for termination, A discipline players for both on-ice and off-ice conduct. with the League, which is held as soon as reasonably possible. five-thousand five-thousand dollars, the player has the right to a telephonic hearing discipline, the commissioner, or his suspension on designee, a player for may “the use of impose excessive and unnecessary a force and fine or reckless acts resulting in injury.” impartial arbitrator each year by giving the arbitrator written notice on or before September 1. player decides to commissioner decides whether another hearing (either telephonic or in- appeal the League’s disciplinary decision, the injury,” the NHL distinguishes itself greatly from the NFL, MLB. NBA, and 34609-mqt_97-2 Sheet No. 147 Side B 03/17/2014 11:30:34 03/17/2014 B Side 147 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 148 Side A 03/17/2014 11:30:34

PM

Id. 12:33

available at During this this During Id. Like the the Like 218 501 501 If a player elects to to elects player a If at art. 18, § 14(c). In fact, the the fact, In 14(c). § 18, art. at 216 Id. art. VI, 6.3(b), § (j),

Under the CBA, the the CBA, the Under , Like the other leagues, the the leagues, other the Like 221 214 EAGUE L ) 3/10/2014 art. 18, § 9.

ELETE

OCKEY D at

215 H OT OT N L ’ O If the commissioner hears the appeal, he he appeal, the hears commissioner the If In these appeals, the commissioner’s ultimate ultimate commissioner’s the appeals, these In AT (D

If a hearing is necessary after dismissing one one dismissing after necessary is hearing a If ) 212 213 N note 205, note MAKING THE RIGHT CALL RIGHT THE MAKING 219 Under this provision, the commissioner must must commissioner the provision, this Under ARCH 222 M supra supra OF THE THE OF . at art. 18, § 13(b). 13(b). at § art. 18, ORRECT ORRECT at art. 18-A, 2(a)–(c). § While cancelling a contract is very unlikely, For these more serious suspensions, the player may appeal appeal may player the suspensions, serious more these For at art. 18, 13(c). § The NDA’s decision is final and binding. (C at art. 18, § 12. art. at 18, § at art. 14(d). at 18, § § 2. art. at 18-A,

at art. 18, § 14(a). The NDA is supposed to have “substantial experience as an an as experience “substantial have to supposed is NDA The 14(a). § 18, art. at at art. 18, § 12. 12. § 18, art. at Id. 217 ONST 220 INAL INAL . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. -F 218 217 219 220 221 222 216. NHL CBA, The commissioner also has the power to discipline players for 212 213 214 215. C For suspensions of six games or more, players have a right to an in- M K BRAMS C Y arbitrator or judge,” but no sports familiarity is required. or potential New the hearings. for York other is ability prerequisite Toronto the to in be against the welfare of the League or the game of hockey,” similar to the other leagues’ best interests clauses. violation of off-ice League rules or conduct “that is detrimental to or entire process, the player is prevented from playing in a game, at least up to the length of the suspension. http://www.bizofhockey.com/docs/NHLConsitution.pdf. http://www.bizofhockey.com/docs/NHLConsitution.pdf. disciplinary decision is final and binding. impartial arbitrator, the NDA is appointed to serve for the duration of the term but may be discharged each year by either party on upon notice or before July 1. the commissioner’s decision to a Neutral Discipline Arbitrator (NDA), who will conduct a third in-person hearing suspension to determine whether was the supported by “substantial evidence.” NHL Constitution also grants the commissioner the authority issue discipline. disputes and to hear NDA but before replacing her, the hearing. impartial arbitrator conducts the commissioner can suspend or expel a player, fine a player, or player’s cancel a contract.

2013] 2013] person) is necessary. A person hearing with a League representative. hearing with the standard. player using the same “clear and convincing” appeal that decision, the commissioner must conduct an in-person determines if the convincing League’s evidence.” decision "was supported by clear and 34609-mqt_97-2 Sheet No. 148 Side A 03/17/2014 11:30:34 03/17/2014 A Side 148 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 148 Side B 03/17/2014 11:30:34

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C Y [97:2 PORTS What’s What’s 12:33 S

J.

ALL ALL 225 H note 192, at arts.

ETON supra , July 22, 2010, at D6. The note note 205, at arts. 17, 18, 18-

, 19 S (July 12, 2013, 1:17 AM), AM), 1:17 2013, 12, (July YSTEMS OST S Basketball Basketball Arbitral Tribunal P

. supra ODAY T ASH

, W , USA NTERNATIONAL I note note 22, at 321; Ian Dobinson & David Thorpe, note 54, at arts. XI–XII; NBA CBA, supra

., note 72, at art. 46; NHL CBA, CBA, NHL 46; art. at 72, note note 205, at art. 18-A, §§ 3(d), 4. 4. 3(d), §§ 18-A, at art. 205, note MARQUETTE LAW REVIEW LAW MARQUETTE supra FFECTIVE

) 3/10/2014 , http://www.innovatingjustice.com/innovations/Basketball-Arbitral- E

These three systems do not use a commissioner commissioner a use not do systems three These supra supra supra 226

ELETE IV. D 224 NHL Fights Back in Contract Battle USTICE ITTEN ET AL J OT OT The impartial arbitrator considers the surrounding surrounding the considers arbitrator impartial The N M MLB CBA, at art. 18-A, § 4. § 4. art. at 18-A, 223 O L. 105, 110–11 (2009); Dirk-Reiner Martens, (D

. Id. . See . See . -10 NT Throughout the world numerous international sports courts and 223. NHL CBA, 224 225 While certain provisions of the MLB, NFL, NBA, and NHL CBAs 226

E

BRAMS NNOVATING I professional sports are the Court of Arbitration for Basketball Sport Arbitral (CAS), Tribunal the (BAT), and Australia’s League National (NRL). Rugby professional sports leagues discipline. have Three developed that have their elements been particularly own successful that and systems contain of could be successfully incorporated in American parties eventually restructured unexpectedly retired in the summer 2013; leaving $77 million of the the total $100 million on the deal, table and returning to which Russia to play in the the Russian Hockey Ilya League instead. Kovalchuk NHL Kevin Allen, Says accepted, He’s Retiring but from NHL Kovalchuk & Commissioner Bettman cancelled a contract between Ilya Devils because Kovalchuk he believed the and parties were attempting to the circumvent the League New salary cap. Jersey Tarik El-Bashir, 502 conduct a hearing, the result of which can be appealed to the impartial arbitrator. A arbitral tribunal would not provisions alter of the CBAs; it would the only affect the appeals current procedures, as immediate will disciplinary be discussed in Part VI. Thus, bargain the leagues could still for collectively punishment, disciplinary and the types of penalties that can be procedures, imposed; the ASAT agreements. by these abide would make sure that the leagues conduct that will result in could be incorporated into an effective and efficient arbitral body, most provisions would run counter to the goal of the ASAT. The proposed circumstances, the proportionality of the penalty to the offense, and the interests of both the League punishment and player in determining is whether unreasonable. the supported by substantial evidence and is not http://www.usatoday.com/story/sports/nhl/devils/2013/07/11/ilya-kovalchuk-announces- retirement-new-jersey-devils/2509857/. Wrong With the Commissioner? Some Lessons from Downunder VI, XXXI; NFL CBA, A. 34609-mqt_97-2 Sheet No. 148 Side B 03/17/2014 11:30:34 03/17/2014 B Side 148 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 149 Side A 03/17/2014 11:30:34

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R. 43 12:33

While ODE TAS/CAS, and are are and 234 C

, 233 The ICAS is is ICAS The 230 TAS/CAS in , and resolves various various resolves and 503 503 227 § 1 (2013) [hereinafter CAS ODE C

Statutes of the Bodies Working for the The applicable division of CAS CAS of division applicable The , Procedural Rules Procedural 235 , ) 3/10/2014 PORTS TAS/CAS S PORTS S in ELETE , D OT OT N note 227, §§ 2, 4, 6. 2, 6. 4, §§ 227, note O

(D

231 ) These arbitrators are listed publicly, listed are arbitrators These MAKING THE RIGHT CALL RIGHT THE MAKING supra

232 , ARCH http://www.tas-cas.org/d2wfiles/document/4962/5048/0/Code2020132 http://www.tas-cas.org/d2wfiles/document/4962/5048/0/Code2020132 RBITRATION RBITRATION FOR RBITRATION FOR RBITRATION M A A ICAS members are elected to renewable four-year four-year renewable to elected are members ICAS 229 TATUTES 13–14. 13–14. ORRECT ORRECT S

The International Council of Arbitration for Sport (ICAS) (ICAS) Sport for Arbitration of Council International The § 4–5. § (C § 15. 15. § 18. § § 6.3, § .7. § available at available 228 OURT OF OURT OF A. The World’s Largest International Sports Court: A. CASThe World’s Largest International ], INAL INAL . Id. . Id. .History of the CAS: Types of Disputes Submitted to the CAS the to Submitted Disputes of Types CAS: the of .History . Id. . Id. . Id. -F 233 234 235. C 228 230 231 232 229. CAS 227. C The CAS maintains more than 150 arbitrators with legal and training The CAS is located in Lausanne, Switzerland M K BRAMS TATUTES C Y 0corrections20finales20(en).pdf. 0corrections20finales20(en).pdf. CAS decisions are publicly available if all parties agree, the arbitrators are bound by a confidentiality. of duty sports backgrounds. is a group of twenty members that governs creates and CAS. amends the code that S international sport disputes, including Olympic sports, disputes international football, involving and any other athletes sport disciplinary in cases that involve athletes with a contracts. CAS arbitration provision in their http://www.tas-cas.org/en/infogenerales.asp/4-3-239-1011-4-1-1/5-0-1011-3-0-0/ http://www.tas-cas.org/en/infogenerales.asp/4-3-239-1011-4-1-1/5-0-1011-3-0-0/ (last Jan. 2013). 13, visited 11, 2013). Tribunal Feb. (last visited 2013] 2013] structure and have alternative arrangements that this Part will explore. Much like Part III, this Part will assess the effectiveness of each aspect of these systems and incorporated determine into the whether proposed they ASAT. features can, from various different structures, the By ASAT would and balance the integrating should, the effective be challenges faced by the individual systems and ultimately could be create the most fair what and consistent disciplinary structure in the world of sports. A periods by the International Committees, and the International Olympic Committee. Sports Federations, National Olympic responsible for appointing and removing CAS arbitrators and supervises the CAS Court Office. expected to perform their duties objectivelyexpected to perform their duties and independently. Settlement of Sports-Related Disputes 34609-mqt_97-2 Sheet No. 149 Side A 03/17/2014 11:30:34 03/17/2014 A Side 149 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 149 Side B 03/17/2014 11:30:34

239 M K PM at

A A C Y [97:2 Id. supra supra 238 12:33 ,

237 R. 64.2. It

at When an an When 80 (2008). 80 (2008). The

Id. TATUTES 242 71,

L.J.

. NT E

& R. 64.1. 64.1. R. The panel would then

http://www.tas-cas.org/d2wfiles/ at note 54, at art. XI, § A(9). PORTS Id. The parties can either elect elect either can parties The S

. 241 The panel has the authority to to authority the has panel The A supra supra 240

Athlete Eligibility Requirements and Legal R. 64.1. available at at available

, 8 V ], at note 235, at R. 39. The claimant is required to to required is claimant The 39. R. at 235, note CBA, note 235, at R. 44.3. at note 44.3. 235, R.

Id. ULES R supra supra

, MLB , with note 227, 20.b. § 227, note ULES ULES

R R 245 All arbitrators can be challenged within a week of of week a within challenged be can arbitrators All MARQUETTE LAW REVIEW LAW MARQUETTE supra

ROCEDURAL , 236 ) 3/10/2014 at R. 40.2, 40.2, R. at ELETE D Whatever the result, all CAS decisions are final and and final are decisions CAS all result, the Whatever The CAS can affirm a Federation’s decision, make a new new a make decision, Federation’s a affirm can CAS The ROCEDURAL ROCEDURAL TATUTES R. 46. R. 46. The only recourse one can have from a CAS decision is an appeal to R. 57. R. 49. R. 45, 58. OT OT P

P S

244

243 N at at § 34. 34. § at at at R. 50. 50. R. at O (D

. Id. . Id. . id. Compare . Id. . Id. . Id. . Id. -10 245 239 240 244 236. CAS 243 237 238. CAS 241. CAS The CAS arbitrators have the authority to determine if the case is 242

BRAMS the Swiss Federal Tribunal (SFT) because the seat of CAS is in Lausanne, Switzerland. R. 47; Matthew J. Mitten Protection of Sports Participation & Opportunities Timothy Davis, can also award reasonable attorney’s fees. can award also reasonable note 227, 19. note § 227, organization disciplines an athlete, that athlete has three weeks to file an has three weeks athlete disciplines an athlete, that organization appeal, unless another time limit exists in the organization’s governing documents. binding on the parties. binding on the require either party to produce any documents or other evidence that it believes is likely to exist and is relevant. pay 1,000 Swiss francs for the CAS to hear the case. that the panel apply general principles of fairness and justice or request that the panel apply the laws of a particular jurisdiction. within CAS jurisdiction, so no outside court assistance is necessary. determine an estimate cost of the proceeding that must be paid in advance.

P CAS (2013) [hereinafter 504 for American sports leagues is the Appeals Arbitration Division, which resolves disputes between athletes other sports bodies. and federations, associations, or A document/4962/5048/0/Code20201320corrections20finales20(en).pdf; document/4962/5048/0/Code20201320corrections20finales20(en).pdf; CAS S decision that replaces it, or Federation. annul it and refer the case back to the Usually, both the claimant and respondent select a single arbitrator, and those two arbitrators select the third; however, unlike the MLB system, all three arbitrators must be impartial. SFT SFT will only review cases on very limited grounds: erroneous jurisdiction; failure to rule on panel contains three arbitrators, unless organization’s otherwise determined document by containing the the CAS arbitration provision. the party finding the other party. grounds and arbitrator between the previous relationship for a challenge, such as subjectivity or 34609-mqt_97-2 Sheet No. 149 Side B 03/17/2014 11:30:34 03/17/2014 B Side 149 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 150 Side A 03/17/2014 11:30:34

, , , PM

12:33

(Dec. (Dec. 4,

J.

. T EDERATION S EGULATIONS R. 8.1 (2012) F http://www.tas- R NHL Nationalit

The BAT, BAT, The , ALL 248

, W ULES R at 86. at 86. NTERNAL NTERNAL ASKETBALL ASKETBALL I Id. 505 505

B TAS/CAS, As will be discussed in in discussed be will As , http://www.quanthockey.com , http://www.quanthockey.com 246 BAT arbitrations are are arbitrations BAT

, 249 Record-Tying 84 International 84 International Record-Tying , FIBA COM . RBITRATION RBITRATION A NewsBank, NewsBank, Rec. No. D9TV1DV81; Joel

, See Percentage of Foreign Players Rises NTERNATIONAL NTERNATIONAL 321.

(Oct. 31, 2012, 1:20 AM), http://www.nba.com http://www.nba.com AM), 1:20 2012, 31, (Oct. ) 3/10/2014 EDERATION The arbitrator has the authority to to authority the has arbitrator The F

250 UANTHOCKEY COM 247 RIBUNAL ELETE T http://www.fiba.com/downloads/v3_expe/bat/BATArbi , Q D available at note 22, at note OT OT N , NBA. note 227, § note 1; I O

(D supra ASKETBALL ASKETBALL

) 252 ., B RBITRAL RBITRAL MAKING THE RIGHT CALL RIGHT THE MAKING supra available at available , A ], ARCH M , Apr. 5, 2012, ULES This arbitrator can be challenged if there are legitimate legitimate are there if challenged be can arbitrator This TATUTES B. The Newest International Sports Court: BAT ITTEN ET AL ET ITTEN RESS R. 8.3. ORRECT ORRECT 251 S

P M (C at at R. 1.2–1.3. 1.2–1.3. R. at ASKETBALL NTERNATIONAL NTERNATIONAL See History of the CAS: Origins CAS These These Days, Everybody’s All-American Just May Be a Haitian INAL INAL . See . . Id. . Id. -F note 248, at bk. 3, ch. VII, § 295. 246. 247 The International Basketball Federation recently established an 249 250. B While the ASAT would solely involve disputes involving leagues 251 252 248. I M K SSOCIATED BRAMS C Y independent independent arbitral tribunal specifically for basketball. from North America, like the CAS it would involve athletes from across the globe who speak many different languages. /2012/news/10/30/international-players-on-opening-night-rosters/index.html. /2012/news/10/30/international-players-on-opening-night-rosters/index.html. conducted before a single arbitrator, President who on a is rotational appointed basis. by the BAT [hereinafter BAT R cas.org/en/infogenerales.asp/4-3-234-1011-4-1-1/5-0-1011-3-0-0/ cas.org/en/infogenerales.asp/4-3-234-1011-4-1-1/5-0-1011-3-0-0/ (last visited Dec. The 31, need for 2013). an internationally conscious system players is apparent with in the increase the of foreign North American leagues. the next Part, the ASAT would likely incorporate many policies of the because CAS’s it is to date the tribunal specifically dedicated to sports-related largest issues, and, like the and goal most prominent arbitral of ASAT, it only hears appeals. bk. 3, ch. VII, § 289 (2010). 289 (2010). § bk. VII, 3, ch. supra panel formation. claim; unclaimed irregular and issues; ruling on A 2013] 2013] A 2009, 12:01 AM), http://online.wsj.com/news/articles/SB125987130978175269; http://online.wsj.com/news/articles/SB125987130978175269; AM), 2009, 12:01 to 2013–14 1917–18 from y Breakdown (last visited 7, Feb. 2013); /TS/TS_PlayerNationalities.php Rosters Players Opening-Night on doubts about his or her independence; such a challenge must be brought “within seven days after the ground for the challenge” becomes known to the BAT President. like CAS, was established in Switzerland. trationRules1May2012.PDF. trationRules1May2012.PDF. Millman, rule on jurisdiction issues as well as to stop the proceedings if he or she believes the arbitration rules are not the appropriate realm the to dispute. resolve 34609-mqt_97-2 Sheet No. 150 Side A 03/17/2014 11:30:34 03/17/2014 A Side 150 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 150 Side B 03/17/2014 11:30:34

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C Y [97:2 12:33 The The

The The 253 259

260

A quirk to this system is is system this to quirk A Each hearing requires a a requires hearing Each 256 254 Within six weeks of the the of weeks six Within 258 The arbitration can proceed only if The arbitration 255 Arbitrators are not required to follow follow to required not are Arbitrators 257 These aspects could help to make the the make to help could aspects These 262 While some aspects of this structure are are structure this of aspects some While 261 MARQUETTE LAW REVIEW LAW MARQUETTE ) 3/10/2014 ELETE R. 0.1, 1.2–.3, 3.1, 8.1, 12.1–.2, 15.1.

D at R. 0.2–.3. R. 17.3. R. 15.1. R. 12.3. R. 1.1. R. 17.1. R. 11.2, 12.1. 12.1. 11.2, R. R. 9.1. OT OT

N at at at at at at at at at R. 16.3–.4. 16.3–.4. R. at O (D

. id. See . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. -10 262 261 259 260 258 257 256 255 254 253 To start a proceeding, a party must submit a complaint that contains This system was established to provide an effective, efficient, and

BRAMS defendant is required to ignored unless answer, the arbitrator requests them. but any additional filings will be “[a]ll written evidence on which the Claimant intends to rely.” simple method of resolving professional basketball. disputes in the world of international result of this award determines proportions of those arbitration costs. costs and the what party is responsible for paying both parties agree in writing to arbitrate the dispute, typically through an arbitration clause in the player’s contract. nominal fee depending on the value of the case that is no less than 1,500 than 7,000 euro. euro, but no more system of discipline in American professional sports faster, and more consistent. more fair, a code, there are other aspects that selected by an arbitrators as, having the professional sports leagues, such would make sense for American independent body and having them evidence, determine and issues procedure. of jurisdiction, unrealistic to bring to the U.S., like the single arbitrator and the lack of

506 A hearing, the arbitrator must otherwise mandated file by the an arbitrator award, or the which BAT is President. public unless the typical arbitration ruling. that arbitrators can promote a settlement between the parties instead of any particular set of governing documents, but instead make rulings on the general principles of fairness and justice, unless otherwise stipulated in the contract between the two parties. 34609-mqt_97-2 Sheet No. 150 Side B 03/17/2014 11:30:34 03/17/2014 B Side 150 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 151 Side A 03/17/2014 11:30:34

: PM

12:33

Nov. 21, ONDUCT

, C Under Under ROCEDURE Dobinson Dobinson & UN

P 263 S If he fights it, it, fights he If ODE OF C 270 ODE OF

, is administered administered is C 264 ALTIMORE ALTIMORE In all, this process process this all, In , http://www.nrl.com/nrlhq/r 507 507 , B 271 EAGUE Reed’s Reed’s Suspension Lifted: After Moreover, players are L COM 267 UDICIARY J

http://media.dailytelegraph.com.au/m UGBY , NRL. R NRL

, L ’ N (last visited Sept. 1, 2013). 2013). (last visited 1, Sept. ’

AT Further, each grade has an explicit explicit an has grade each Further, ) 3/10/2014 American Football or Rugby: Which is More 265 OMM available at note 263. 263. note C ELETE D note 226, at 124. 124. at 226, note 124. at 226, note supra supra ,

OT OT EAGUE N 268 L O supra supra supra supra NRL Judiciary Report NRL Judiciary (D

2012 (2012), (2012), 2012

) 272 MAKING THE RIGHT CALL RIGHT THE MAKING OF Homa Khaleeli, UGBY 1 1 R ARCH O M See See N 27. 27. http://www.rugbyleague.com.au/nrl/nrl_code_of_conduct.pdf; – Players are given written notice of a charge and have have and charge a of notice written given are Players The player then has one business day to respond either either respond to day business one has then player The 266 ORRECT ORRECT note 226, at 110; 269 (C at 127. 127. at NRL Judiciary Report Judiciary NRL at 124, 127. 127. 124, at 126 at The NFL currently has a similar system for on-field conduct, as evidenced by by evidenced as conduct, on-field for system similar a has currently NFL The ; , SHORTCUTSBLOG (Jan. 28, 2013, 11:50 AM), http://www.theguardian.com/sp AM), 11:50 2013, 28, (Jan. SHORTCUTSBLOG , USTRALIAN TATEMENT C. Another National Professional League: Australia’s NRL INAL INAL supra . Id. . Id. . Id. . Id. . Id. . Id. S available at -F

270 271 272 This system works quickly and effectively because the match review 263. A 266 267. Dobinson Thorpe, & 268 269 264. Rugby is one of the most violent games in the world, but it is no more violent than 265. Dobinson Thorpe, & Australia’s NRL is now governed by a system that includes a “Code M K BRAMS OLICY C Y ultimedia/2012/07/NRL_Judiciary_Polic.pdf; ultimedia/2012/07/NRL_Judiciary_Polic.pdf; N Ed Ed Reed’s successful appeal. Jeff Zrebiec & Aaron Wilson, Successful Appeal on Helmet Hit, He Defends Hard-Nosed Style committee must submit the notice of offense the next business day after the match. rewarded with a lesser point value if they plead guilty and get increased points for repeat offenses. Thorpe, Thorpe, eferencecentre/judiciary/tabid/10435/default.aspx these rules, the discipline for on-field violence of Conduct, Anti-Doping Rules, Anti-Vilification Code, Judiciary Code of Procedure and Appeals Committee Procedural Rules.” takes a maximum of appeal. discipline and four days to complete the entire process of

P (2007), 2013] 2013] A with a guilty plea or notice that he will fight the charge. number of demerit points, punishment. which also contribute to developing the American football. Dangerous? ort/shortcuts/2013/jan/28/american-football-rugby-more-dangerous. Thus, an analysis of the be administrated just easily in as football. disciplinary should system rugby violence of in three options: plead guilty, plead guilty to the offense but not guilty to the grade, or plead not guilty to the offense. the hearing is held the following day, procedural with infractions a the day potential after for the appeal hearing. for according to a set of specific violations that have specific based on punishments the grade of the offense. 34609-mqt_97-2 Sheet No. 151 Side A 03/17/2014 11:30:34 03/17/2014 A Side 151 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 151 Side B 03/17/2014 11:30:34

M K PM

C Y [97:2 12:33 This This

The The 274 276 Like a a Like 282 The evidence evidence The 281 A group of three is is three of group A

279 The ultimate decision of of decision ultimate The 278 The Judiciary Counsel is is Counsel Judiciary The 275

note 226, at 131. 131. at 226, note 280 supra supra

On On appeal, the League reduced the suspension to a fine because MARQUETTE LAW REVIEW LAW MARQUETTE Id. ) 3/10/2014 Id. ELETE D at 133–34. at 133–34. OT OT This combination provides the legal formality to the the to formality legal the provides combination This The Chairman decides all questions of law, evidence, and and evidence, law, of questions all decides Chairman The N at 133. 133. at 134–35. at 135. at 138. at 277 134. at 273 O (D

. Id. . Id. . Id. . Id. . id. See . Id. . Id. . Id. . Id. -10 The NRL has a judiciary branch that includes a Chairman, a Video evidence is usually presented and all the evidence and the 273. Dobinson Thorpe, & 274 275 276 277 278 279 280 281 282

BRAMS responsible for prosecuting players on the league’s behalf. Counsel is composed of attorneys. former rugby league players who are also Judiciary Counsel, and an Adjudicating Panel, which consists members. of three selected from a pool of five, and acts as the jury in the case, responding to the cases presented by both by the Chairman. explained sides and the burdens and standards that goes to the player so that he can develop a defense. of a particular case must be included in the notice of charge document 2012, at D1. Ed Reed is Ravens, was suspended by the League a for an illegal hit because the League believed he Pro-Bowl had a caliber safety who, while history playing of illegal for hits. the Baltimore 508 A procedure, but does not participate in the decision of the appeal. defendant in a criminal trial, the charged player’s previous suspensions and fines are excluded from the hearing unless the Panel determines the player is guilty, at which time the Panel needs to know the player’s grading are recorded so the Panel can follow precedent. whether a charge should stand rests with the Adjudicating Panel, which, like the Counsel, is composed of former players. Chairman must be serving, or Australian have state served, or as federal a court criminal judge because in case the either system where an is proceedings there similar to to is a secure an just emphasis outcomes. on the fairness of the proceedings and has a whoprosecutor truly understands the position the players are in during the heat of competition. Reed was able to show that he did not have the history as a repeat offender that the League had. he initially believed 34609-mqt_97-2 Sheet No. 151 Side B 03/17/2014 11:30:34 03/17/2014 B Side 151 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 152 Side A 03/17/2014 11:30:34 , PM

New COM PORTS 12:33

S NRL.

, AHOO If a player player a If 283 , Y

note 72, at art. 46. 46. art. at 72, note 284 (Sept. 7, 2012, 7:52 AM), AM), 7:52 2012, 7, (Sept. supra 509 509 Players must pay a a pay must Players 286 COM , NFL. , http://www.cbssports.com/mlb/salaries/ , http://www.cbssports.com/mlb/salaries/ COM

. ) 3/10/2014 290 art. XI, § C;CBA, NFL The Appeals Committee is a panel of of panel a is Committee Appeals The

287 PORTS ELETE This three-person panel has the final final the has panel three-person This D note 226, at 143. 143. at 226, note 288 OT OT N , CBSS , These decisions are final and binding on the the on binding and final are decisions These O

note 54, at supra supra 285 (D 289

) MAKING THE RIGHT CALL RIGHT THE MAKING supra

ARCH Average Salaries in the NBA, NFL, MLB, and NHL M CBA, MLB Salaries MLB

ORRECT ORRECT MLB at 143. The NRL salary cap is $5.15 million for the twenty-five highest paid (C at 141–42. 141–42. at 142. at 142–43. at at 143–44. 143–44. at

Joe Dorish, Salary Cap Breakdown: NRL Payments for the Top 25 2013 Cap See INAL INAL See . Id. . Id. . Id. . Id. . Id. . Id. -F An appeal is heard by the Appeals Committee, which can affirm, 283 284 285 286 287 While some aspects of this system may not work in the United 288. Dobinson Thorpe, & 289 290. M K BRAMS C Y quash, find the player guilty of a lesser offense, or increase the penalty imposed on the player. wishes to appeal, he has a week to ask for an appeal from the Chairman, is who will a grant good likelihood it of if success. there States, the specificity of rules and punishments as well as former player would vastly improve the current structure of in the process involvement discipline in American sports currently leagues. have quick appeals for on-field While conduct, there many are aspects these of of three disciplinary the systems leagues that can make more fair, consistent, and efficient. the American systems player. http://www.nrl.com/nrlhq/referencecentre/salarycap/tabid/10434/default.aspx http://www.nrl.com/nrlhq/referencecentre/salarycap/tabid/10434/default.aspx (last visited Oct. per player, or over of just 5% of salary $176,000 4, average 2013). This to maximum equates a the average MLB player’s salary, less than 3.5% of the average NBA player’s salary, 7.3% of the average NHL player’s salary, and only slightly higher than a typical NFL practice squad (Nov. 12, 2011), http://sports.yahoo.com/nba/news?slug=ycn-10423863; Brian McIntyre, England Patriots Have Top-Paid NFL Practice Squad

2013] 2013] disciplinary past to decide the intensity of the punishment. A athletes. authority to determine supported by evidence. whether the decision was reasonable and three people: the President of the Appeals Committee, who must have served as a judge, and both the players association selecting and the one Chairman person each. http://www.nfl.com/news/story/0ap1000000059339/article/new-england-patriots-have-toppaid- nfl-practice-squad; avgsalaries (last visited Oct. 4, 2013). avgsalaries visited (last 2013). Oct. 4, $5,000 security fee before the appeal, which they get back only win, to if avoid frivolous they appeals. parties and no new evidence may be entered. 34609-mqt_97-2 Sheet No. 152 Side A 03/17/2014 11:30:34 03/17/2014 A Side 152 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 152 Side B 03/17/2014 11:30:34

, : 1, M K PM

. AW C Y [97:2 L EV (2000). 12:33

R

note note 292, 296 L.

. T 66–67 NITED DMINISTRATI

S

supra . U A All appeals appeals All 55, 293 LEV UBLIC ONSTITUTIONAL THICS C E , P , 42 C

The judge is supposed supposed is judge The Structure of Federal Courts

EGAL 297 L

The established appellate appellate established The ROPERTY EVIEW THE IN J. MERICAN

. P 294 A R Traditionally, lower court court lower Traditionally,

, Judicial Judicial Bias EO 291 YSTEM S However, if a judge does not not does judge a if However, ARR 298 T RIVATE at 64. 64. at 14 G

” The goal is to eliminate bias and and bias eliminate to is goal The , : P 45, 54 (2009). (2009). 45, 54 299 (8th (8th ed. 2010);

UDICIAL LAN . EGAL

J A L

EV 31 R G. note 292, note IBERTY

L. L &

. (2011).

Appearance Appearance of Impropriety: Deciding When a Judge’s supra supra ND TATES FOR

S B.J. 279, 285–86 (2002); Chad M. Oldfather & Matthew M.

Standards of Appellate Review in the Federal Circuit: Substance . note 292, at 286, 309–11; Oldfather & Fernholz, 20–21 SPECTSOF OSSUM , 43 I 43 , One of the biggest concerns about lower court court lower about concerns biggest the of One note 296, at 70. at 70. 296, note MARQUETTE LAW REVIEW LAW MARQUETTE IR R A OVERNMENT

295 ESIGN C AW ) 3/10/2014

G . A. L supra , D supra ED ELETE http://www.uscourts.gov/educational-resources/get-informed/federal-court- D

ALPH , at 66. at 66. R ULE OF OT OT PSTEIN

, 11 F Further, a lower court judge’s discretionary decision is is decision discretionary judge’s court lower a Further, N 1 R

O GOV 292 . PPLICABLE PPLICABLE Comparative Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a (D A. E A. See Casey et al., Oldfather & Fernholz,

A

. . . id. See TRUCTURE TRUCTURE OF -10 S V. OURTS The structure of the U.S. court systems generally involves a lower Congress understands the importance of this perception, which is 291. 297.(2006). 28 455 § U.S.C. 298. Abramson, 299. 28 U.S.C. 144 § (2006); Donald C. Nugent, 292. Kevin Casey et al., 293 296. Leslie W. Abramson, 294 295

AND THE , ICHARD BRAMS HE court that initially hears cases and at jurisdiction least one that appellate court hears in potential the review. why it codified the requirement that impartiality a “might reasonably be questioned.” judge disqualify herself if her usually reviewed under an “abuse of discretion” standard. in this system are conducted by a completely separate court to reduce, and ideally eliminate, the potential for bias. determinations of fact face a clearly erroneous appellate standard courts, whereas of the review lower court’s by legal holdings are reviewed de novo. Fernholz, Fernholz, Review Appellate Process of USC Other important features of the legal system include the right to be heard, notice of laws and charges, the right to cross-examine witnesses, and the right R to receive a reasoned decision. T 510 A ON to act sua sponte and recuse herself. procedure not only serves to preserve justice, lower but court also judges. as a check on basics/structure-federal-courts.aspx (last visited Oct. 4, 2013). (last 2013). Oct. basics/structure-federal-courts.aspx visited 4, and Semantics judges is maintaining impartiality, or at least the perception of it. at least judges the is maintaining perception of impartiality, or recuse herself, either party may file a motion to remove the judge from the proceeding by filing an affidavit with the facts and reasons why the party believes the judge is biased. Impartiality “Might Reasonably Be Questioned at 54. at 54. 34609-mqt_97-2 Sheet No. 152 Side B 03/17/2014 11:30:34 03/17/2014 B Side 152 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 153 Side A 03/17/2014 11:30:34 PM

, 87 AJOR 12:33

M § 4.05 § (5th at 55 (James with

10,

notes 25–27 and . THICS O E

N 304 (ASAT) (ASAT) By including the 302 See supra 511 511 R. 1.2 (2011) (requiring that a EDERALIST EDERALIST F ONDUCT AND RIBUNAL C The rule states: “A judge judge “A states: rule The T HE 301 ONDUCT ONDUCT http://bizofbaseball.com/docs/MLCons http://bizofbaseball.com/docs/MLCons C R. 1.2 (2011). A concept first articulated by R. 1.2 (2011) omitted). (asterisks R. (2011) 1.2 UDICIAL J

., ) 3/10/2014 RBITRAL A

UDICIAL ONDUCT ONDUCT J ELETE available at available 300 C C D The The Supreme Court recently reaffirmed the objective OT OT

EYH ET AL N PORTS O G Judicial Disqualification in the Federal Appellate Courts S ODE OF (D

UDICIAL UDICIAL ) C J J (2002). MAKING THE RIGHT CALL RIGHT THE MAKING

ARCH M ARDNER ARDNER 1233 ODEL

G M ODE OF ODE OF C C at 886–87. at 886–87. MERICAN . art. II, §§ 2–3 (2008), (2008), 2–3 §§ . II, art. 1213, A ORRECT ORRECT

Id. . The language in that rule is very similar to the reasoning (C at R. 1.2 cmt. 3. 3. cmt. 1.2 at R. 303 ODEL ODEL EV HARLES ONST VI. R

INAL INAL C .Compare . Id. .Compare -F L. (1994). (1994).

302. M 300. C The ASAT would incorporate some particularly effective 303 304 301. M To demonstrate the importance of public confidence further, the M K BRAMS EAGUE C Y OWA ititutionJune2005Update.pdf (explaining the commissioner’s responsibility best baseball). interests to of promote the efficient, and effective as possible. This Part will explain the of structure components from each of the professional American well sports CBAs as as the However, international various aspects of systems the ASAT would previously create processes new for and handling assessed unique disciplinary appeals to in make the system as Part fair, IV. James Madison, who recognized that men cannot completely control their biases and must be protected from themselves for the good of the public. T behind granting the commissioner a best interest power. the commissioner behind granting shall act at all times in a manner that promotes public confidence in the shall avoid and and impartiality of the judiciary, integrity, independence, impropriety and the appearance of impropriety.” led to the MLB making Judge Landis text. accompanying the first commissioner. Madison) (Harvard University Press 2009). Ironically, it was such a crisis of confidence that American Bar Association “Promoting Confidence (ABA) in the Judiciary.” published a model rule titled: L 23–24 2013] 2013] enhance public confidence objective in test the of whether justice a disinterested impartiality. doubt the judge’s system observer would by significantly employing an A ed. 2013); Debra Lyn Bassett, I reasonable prudent person Caperton standard v. A.T. Massey Coal Co., 556 U.S. to 868, 887 (2009). The Court found a determine judge must recuse the himself judge’s if ability the contributions. to case be involved impartial. someone who had given him significant campaign judge act to promote public confidence in the independence of the judiciary), appearance of impropriety, the ABA recognizes that public perception of the system is nearly as important, if not more so, than the the justice of system itself, and that the public will impartial. distrust a system that is not 34609-mqt_97-2 Sheet No. 153 Side A 03/17/2014 11:30:34 03/17/2014 A Side 153 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 153 Side B 03/17/2014 11:30:34

307 M K PM

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Using a similar similar a Using 311 the ASAT would be be would ASAT the

306 The tribunal would be be would tribunal The 309 a similarly structured court court structured similarly a 308 By having the Board select these these select Board the having By 312 note 226, at 133. A fund would also be created from also be would created from A fund at note 133. 226, The separate code would establish the the establish would code separate The supra 305 MARQUETTE LAW REVIEW LAW MARQUETTE ) 3/10/2014 note 231 and accompanying text. text. 231 accompanying and note Part IV.A–B. IV.A–B. Part text. 232 accompanying and note ELETE Like the NRL structure, former-athletes could apply for for apply could former-athletes structure, NRL the Like D A. The Creation and Maintenance of the A. ASAT The Creation and Maintenance 310 OT OT N Dobinson & Thorpe, & Dobinson Thorpe, O (D See

. See supra . See supra . See supra -10 Like the CAS and BAT, the ASAT would be an independent body 312 310. Ideally the NBA, NBPA, MLB, MLBPA, NFL, NFLPA, NHL, and NHLPA would 311. 305 306 307. For example, the International Institute for Conflict Prevention & Resolution, the 308. For example, the CAS, the BAT, and the International Arbitration Association. 309. The decision regarding whether the independent arbitrator has sufficient

BRAMS with its own governing documents and involved code, in regardless of the the dispute. sport a position on the ASAT if they can prove in their applications that they have legal experience or training, or them to related effectively adjudicate these types of skills hearings. that would enable composed of a group of established arbitrators that have experience in one of the major North American arbitration associations, structure of the proceedings and codify rules that arbitrators must abide by when making decisions. Similar to the CAS, arbitrators, it is responsibility much to less rule on likely behalf of that one of an the arbitrator parties in would the dispute. feel a the fines to provide for athletes’ post-career legal education to help prepare athletes for this position.

512 the ASAT, including how the procedures would work, and will explore ASAT. the proposed feasibility of the potential A experience and education would be at the discretion of the Board. Board. of the at discretion be the would education and experience all participate, but there would requirement would be incorporating language be into its governing documents giving the ASAT no bar on authority effectively. to function what league could participate. The only AAA, and the Judicial Arbitration and Mediation Services. Mediation Services. and Arbitration AAA, Judicial the and Additionally, anyone who has served as a league arbitrator would have sufficient experience to considered. be composed of at least ten original arbitrators have to apply and be appointed by the participating leagues and players’ (the Board), who would associations. group of twenty would then select ten more, and so on until at least fifty arbitrators had been appointed. election policy as the CAS, the Board would then select ten more; that around the world, sufficiently related experience or and education. any independent arbitrator who can show international sports arbitral tribunals, 34609-mqt_97-2 Sheet No. 153 Side B 03/17/2014 11:30:34 03/17/2014 B Side 153 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 154 Side A 03/17/2014 11:30:34

318 314 PM

note MLB

12:33

note note 235, supra , supra , This policy policy This 316 note 227, 18; § TATUTES ULES R supra , 513 513 R. 43; CAS S

TATUTES ROCEDURAL either party would have the the have would party either 315 note 235, at ) 3/10/2014 R. 8.3; R. 8.3; CAS P

ELETE supra 317 , D OT OT N ULES O This requirement would protect arbitrators arbitrators protect would requirement This R § A(9).

(D note 250, at R. 8.3; CAS S note 250, at 319

) MAKING THE RIGHT CALL RIGHT THE MAKING ARCH supra supra

, , M and would be subject to the standards of the code as as code the of standards the to subject be would and Part III.C.Part III. Part 313 ROCEDURAL ULES ULES ORRECT ORRECT (C note 54, at art. XI, INAL INAL . See supra . See supra -F supra

313. BAT R 314. (2012). 10 Federal § Act, U.S.C. Arbitration 9 315. BAT R 316. 10. 9 § U.S.C. 317. CAS P All arbitrators could be fired by any league or association during a As in most of the organizations discussed previously, the arbitrators 318 319 M K BRAMS C Y right to challenge the decision disclosure, impartiality, based abuse of power, on and misconduct. the FAA requirements for from retribution from one party against simply that party, and because increase the public’s the view of the arbitrator integrity of the ruled system. These requests would be handled in a confidential manner the arbitrator so would be unaware of who requested the termination, but would know the reasoning for the request. The Board would review the request and determine whether to keep the arbitrator on staff. These specified week in the summer each year, similar to the NBA CBA; CBA,

2013] 2013] Whenever an arbitrator retired or was discharged, the members of the ASAT would have the duty to select a replacement if there were fewer than fifty left; if there were more than fifty, discretion as to the whether to add a replacement. members Maintaining at least fifty would have qualified arbitrators is important to prevent too frequently. league a particular dealing with any one arbitrator from would be independently expected to perform their duties objectively and A would provide a safeguard for players or leagues that do not get hearing a or fair decision. While the decisions of the panels would be public, all proceedings, documents, and statistics, including the identity of the arbitrators, would be confidential, and if any party were confidential to reveal information, any that party would be subject fine, similar to CAS decisions. to a substantial at R. 34. however, unlike the current structures for sports the leagues, American this request professional for dismissal must be accompanied cause by just for termination. Adapting the CAS and BAT policies, well as the requirements of the Federal Arbitration Act (FAA). 227, 19. § 34609-mqt_97-2 Sheet No. 154 Side A 03/17/2014 11:30:34 03/17/2014 A Side 154 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 154 Side B 03/17/2014 11:30:34

M K PM

C Y [97:2 12:33

This approach approach This 322

Similar to BAT arbitrators, arbitrators, BAT to Similar 321 the ASAT would have at least least at have would ASAT the 320 R. 12.3. R. 12.3.

note 250, at B. The Small Dispute Process MARQUETTE LAW REVIEW LAW MARQUETTE ) 3/10/2014 supra , notes 195–96 and accompanying text. text. accompanying and 195–96 notes text. 178 accompanying and note ELETE D These small hearings would involve both parties and and parties both involve would hearings small These ULES 323 R. 8.1. OT OT

N at O (D

. Id. . See supra . See supra -10 323 The small issues would be handled by a single arbitrator, like BAT 320 321 322. BAT R Slightly altering the NBA system, which lets the commissioner

BRAMS arbitrations. ASAT arbitrators would have the authority between the parties, or make an to independent decision. broker an agreement no more than five days after the filing of the complaint. This timetable would ensure the efficient resolution of these disputes and would get would be conducted via video or telephone conference to eliminate the costs and delay of provide written travel. notice to both the ASAT and The the opposing party, complainant who would would be required be to required file an conference to would answer take place within at a two time agreed upon business by the days. parties, no later than two business days after the but ASAT received the answer and The

514 procedures would ensure that the accused arbitrators organization that accused never them, so the arbitrators cannot learn develop a bias the against the organization if the Board decides to keep the arbitrator on staff. This system would prevent dismissals and requests without merit requesting dismissal. to the leagues and bring accountability decide on small fines and penalties, A determination of which disputes would be considered small and which would be considered large would be CBAs handled and by not the codified leagues by in the their ASAT. three arbitrators on call for small issues that could be settled much more quickly than the large issues, which may require a full trial process. The would remove the chance of bias or partiality, perception of it. or at least the public’s would allow the leagues to determine which discipline they believe must be determined quickly and efficiently to maintain justice, such as cases the facts would be would relatively define the straightforward. issues and punishments that Further, would fact-finding require the intensive and a leagues larger investigation, which more would require court-like a trial. longer, Removing the appeals procedure would bring commissionergreater integrity to each sport because it entirely from the 34609-mqt_97-2 Sheet No. 154 Side B 03/17/2014 11:30:34 03/17/2014 B Side 154 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 155 Side A 03/17/2014 11:30:34 PM

note note 12:33

The The note 226, 324 supra , supra note note 192, at art. ULES R supra 515 515 ROCEDURAL Differing from the CAS CAS the from Differing 326 Like the power of the NBA NBA the of power the Like 327 ) 3/10/2014 R. 16.5; R. 16.5; CAS P note 235, at R. 50. at 50. note 235, R.

ELETE Due to the limited fact-finding required, required, fact-finding limited the to Due D supra , 325 OT OT N note 54, at art. XI, B; § NBA CBA, O ULES note 250, at R (D

note 72, at art. 46, § 2(d); Dobinson & Thorpe, Thorpe, & Dobinson 2(d); § 46, art. at 72, note ) note 192,at art. XXXI,§ 9(a)(4). note 192,at art. XXXI,§ 9(a)(4). C. The Large Dispute Process MAKING THE RIGHT CALL RIGHT THE MAKING supra supra

supra ARCH supra , M supra supra the panel would have authority to affirm or reduce the the reduce or affirm to authority have would panel the 328 ULES ROCEDURAL ORRECT ORRECT P

(C at R. 40.2. This algorithm would prevent the arbitrators from becoming too too becoming from arbitrators the prevent would algorithm This 40.2. R. at INAL INAL . Id. -F 327 328.CBA, NBA 324.CBA, NBA 325. BAT R Large disputes would be heard by a panel of three impartial 326. CAS M K BRAMS C Y familiar familiar with any particular league or players association, which biases from coming would into play avoid even subconsciously. The any system benefits from previous the arbitrators’ legal and Unfortunately, analytical the author is not a mathematician skills and unable to present an example algorithm. of rather said than their familiarity with any particular sport. Commissioner, would be final and binding. parties would make the entirety of their arguments during this hearing, and there would be no required brief or discovery the process because limited of facts involved. evidence they The believe necessary parties to convince the would arbitrator with need during this conference so the opposing to party would have a chance to dispute it. provide any Like the decisions of most of the leagues’ arbitrators, these decisions 235, at R. 46; MLB CBA, league’s decision, but league’s decision, to not increase it. Additionally, comparable to the NRL system, these decisions precedent would for each be league documented that would and be would applicable in set similar future

2013] 2013] innocent players back playing as early as possible. Similar to the power of the NBA Commissioner, affirm the or arbitrator reduce the would league’s have decision, but authority not to to increase it. A these smaller disputes would likely be resolved quickly. would be documented to establish a All system of precedent, so the disputes decisions could be resolved documentation would make sure the players know fairly exactly what type of and conduct would make them referenced liable for specific suspensions and fines in and under the CBAs.currently exists ambiguity that would eliminate the future cases. This arbitrators, similar to CAS proceedings. would be created to prevent disputes predominantly from any one sport. individual arbitrator from hearing system, these arbitrators would be randomly selected and an algorithm XXXI, § 6; NFL CBA, at 142–43. at 142–43. 34609-mqt_97-2 Sheet No. 155 Side A 03/17/2014 11:30:34 03/17/2014 A Side 155 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 155 Side B 03/17/2014 11:30:34

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note note 192, at supra

then the brief would would brief the then 332 Thus, no punishments punishments no Thus, note 226, at 124–27. As opposed to 330 Additionally, if the CBAs still still CBAs the if Additionally, supra supra 331 note 226, at 135. 135. at 226, note 138. at 226, note supra supra supra Moreover, the totality of the circumstances circumstances the of totality the Moreover, 329 MARQUETTE LAW REVIEW LAW MARQUETTE note 72, at art. 46, 1(d). § 46, art. at 72, note ) 3/10/2014 supra notes 49–53, 64 and accompanying text. text. accompanying 49–53, and 64 notes ELETE D OT OT N at art. 46, § 2(i); Dobinson & Thorpe, Thorpe, & Dobinson 2(i); § 46, art. at O (D Id.

. See supra -10 329. Dobinson Thorpe, & 330 331. Dobinson Thorpe, & 332.CBA, NFL 333. The ASAT would not hand out discipline; it would still be up to the The hearing would take place between a week and ten days after the

BRAMS

516 situations per league. A would come into play for each hearing to through reasonable prevent efforts a to make player sure he who was went not breaking the rules from being disciplined, like J.C. Romero. when the punished player disputed the discipline and wished to appeal the decision. The arbitrators would analyze the league’s decision based on the league’s governing documents and a reasoned brief submitted by the league. This brief would provide the ASAT with any evidence, such as previous conduct or applicable confirm the decision and so that the player could effectively make his or precedent, that it would her defense, akin need to the NRL to system. would be handed out with a strict liability standard, and their name. to truly clear opportunity would have the all appellants individual leagues to determine initially enforce the those rules. rules Instead, the and tribunal would only punishments be used and to be submitted within five business process efficient. to keep the player’s appeal days of the written notice of the notice of appeal, and the parties would submit briefs to the ASAT panel at least two days in advance, similar to the NRL and NFL structures. need to clarify the explicit increased type penalty of by conduct giving examples that of would past similar conduct by players result in similar suspensions situations. This brief would have to or in fines the for Though not required, a would player have the right to be represented by an attorney or a union representative. The appellant player would have to prove that the league was being arbitrary and capricious, abusing its power, or not following its own rules discipline. in handing down the The particular player including could on- use and off-court the conduct, totality other players’ of punishments, the and circumstances, had ambiguous language, like standard for the increasing NFL’s fines and “flagrant suspensions, and gratuitous” art. XXXI, § 4. the NBA system, which allows for a much greater timeframe. NBA CBA, 34609-mqt_97-2 Sheet No. 155 Side B 03/17/2014 11:30:34 03/17/2014 B Side 155 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 156 Side A 03/17/2014 11:30:34 PM

note note 12:33

Like Like 11.

note 226, 334 P.

. supra , IV supra C

note note 192, at art. ULES R.

R . ED supra F The hearing would would hearing The See 517 517 336 ROCEDURAL ) 3/10/2014 R. 16.5; R. 16.5; CAS P note 235, at R. 44.3. at note 44.3. 235, R.

ELETE D supra , OT OT N note 54, at art. XI, B; § NBA CBA, These rates would be determined by the the by determined be would rates These O ULES note 250, at 338 R (D

note 72, at art. 46, § 2(d); Dobinson & Thorpe, Thorpe, & Dobinson 2(d); § 46, art. at 72, note ) note 54, at art. XII, § D. XII, § art. at 54, note MAKING THE RIGHT CALL RIGHT THE MAKING supra supra

supra ARCH , supra M supra

ULES ROCEDURAL CBA, Further, the player would be entitled to any evidence used used evidence any to entitled be would player the Further, ORRECT ORRECT

P

D. Funding the ASAT and Understanding the Fees 335 (C

337 INAL INAL -F 336. MLB 337. BAT R The Board and arbitrators would be paid using only the arbitration 334. member by active office of any commissioner’s be the represented The could league 335. CAS 338. The incremental expenses could be imposed for excessively long hearings, M K BRAMS C Y one for large, explained and in the additional code. incremental increases as would be rates, for which there would be two base rates, one for small issues and 235, at R. 46; MLB CBA,

2013] 2013] any other evidence that could show injustice. have the right to participate in the hearing, but would not be required The to league would also participate if the evidence submitted in the brief was sufficient. A who participated in the original disciplinary decision. decision. disciplinary original the in participated who average of the arbitration agencies. fair These fees would be shared market equally by the union representing rates the player and of the league, but the would winning be party refunded major by to the the opposing North side. Any would American fines be that the payable panel to affirms the league and CBA to determine the the use of those funds. Embracing an element league of the would follow its own basis for how to handle future situations. These publications would be anonymous, like the CAS decisions, unless the appellant waived his or her right to privacy. future disputes This because documentation players would penalties hopefully would for prevent their better actions understand and precedential the decisions to determine future discipline. the Like the decisions likely league would be able of most to of the look leagues’ arbitrators, at these decisions would binding. be final and not have a particular time limit, but must allow for each party to present all of its evidence reasoned decision to for each case, ensure which the justice. league could then use as Arbitrators a would publish a in the investigation, much like the MLB system. XXXI, § 6; NFL CBA, the CAS policy, discovery requests discretion. would be granted at the panel’s at 142–43. at 142–43. procedures to strike a particular arbitrator for a previous relationship with a party, or similar circumstances that would make that particular hearing norm, similar Rule to of 11 the FederalCivil Rules Procedure. of longer and more difficult than the 34609-mqt_97-2 Sheet No. 156 Side A 03/17/2014 11:30:34 03/17/2014 A Side 156 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 156 Side B 03/17/2014 11:30:34

. 343 M K PM

NT C Y [97:2 12:33

, 19 UCLA , E 19 (Gary A. Uberstine

345 § 4.9

This phenomenon is is phenomenon This 346 PORTS S Like the BAT system, the the system, BAT the Like 340 Further, the panel could award award could panel the Further, MATEUR A 341 R. 17.3. R. 17.3.

All Four Quarters: A Retrospective and Analysis of the 2011 note 342, at 11–14. note 250, at In fact, during the most recent collective collective recent most the during fact, In MARQUETTE LAW REVIEW LAW MARQUETTE note 72, at art. 46, 5(c). § 46, art. at 72, note ROFESSIONAL AND 344 P supra ) 3/10/2014 note 2, at 203. supra , supra ELETE any fine imposed by the arbitrators for conduct against against conduct for arbitrators the by imposed fine any D supra supra AW OF ULES 339 E. The Potential Obstacles to Creating the ASAT OT OT 1 L N at 44–63, 65–66. 65–66. 44–63, at 63–65. at O The current state of the economy has only made these issues issues these made only has economy the of state current The (D

1, 7 (2012). 342 . See . Id. . Id.

-10 . 342 Historically, CBA negotiations have often focused around monetary 341. BAT R 339.CBA, NFL 340. One of these grant would would scholarships which be tofund, an athlete education While the NFL Commissioner’s disciplinary power had been a 343. Parlow, 344. Deubert et al., 345 346 EV

R

BRAMS issues. the rules of the ASAT, such as disclosure of unreasonable confidential delay, information,or bad faith, would be directly paid to the ASAT, which would delegate the charities funds based to on one of five selected the recommendation of the opposing party. popular topic of discussion and most players were not happy with it, the new CBA left the structure nearly unchanged. more important and made it more difficult to come to an agreement. arbitrator would determine what would proportion be required of to expenses pay, responsible with each for the their own side exception witnesses. that parties would be L.

518 NFL’s CBA, A retired athletes looking to gain a legal education to eventually become an arbitrator. arbitrator. an become eventually legal to education a gain retired to athletes looking ed., 2012); Chris Deubert et al., Collective Process Bargaining Agreement and in the National Football League bargaining negotiations between significant changes were in terms of the the revenue split, the salary cap and NFL and minimum NFLPA, the most contracts, and drug testing. spending compensation, guaranteed requirements, bonus forfeitures, rookie These issues have included free agency, salary caps, wage and restrictions, revenue splits. frivolous claim. These rules would make sure that no athlete would be unable to bring a case due to expense, arbitrators and would would guarantee be that the paid a unduly fair delay rate, and the that repercussions of fines. proceedings neither party or would act with malice because of the attorney’s fees if it found that one party acted in bad faith or filed a 34609-mqt_97-2 Sheet No. 156 Side B 03/17/2014 11:30:34 03/17/2014 B Side 156 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 157 Side A 03/17/2014 11:30:34

349 PM

text text COM 12:33

note note 54, supra MLB.

, supra

see also These most most These (Dec. 3, 2011, 9:01 348 COM note 78; MLB CBA, MLB (4th ed. 2009). ed. (4th 519 519

, ESPN. supra but that does not fully fully not does that but

see also 177–81 351 AW AW L ) 3/10/2014 ONCLUSION C

ELETE D note 192, at art. XXXI, § 9. PORT AND THE OT OT S VII.

, N Key Points of Collective Bargaining Agreement O supra (D

) note note 192, at art. VI; NFL PCP, MAKING THE RIGHT CALL RIGHT THE MAKING note 72, at art. 46, § 1(a), (d); (d); 1(a), § 46, art. at 72, note EALEY H ARCH Breaking Breaking Down Changes in New CBA M supra supra The NFL and NBA have attempted to create conduct conduct create to attempted have NBA and NFL The 350 Similarly, the new MLB Basic Agreement involved a a involved Agreement Basic MLB new the Similarly, EBORAH ORRECT ORRECT Anthony Anthony DiComo, 347 D (C INAL INAL . See . See -F 350. NFL CBA, 347. Larry Coon, Since it is highly unlikely that during the next round of CBA 349 351. NBA CBA, Whether the ASAT is a realistic concept that can effectively be 348 M K BRAMS C Y it is probably up to procedure up themselves. However, doing so the would involve giving up a leagues to take significant power the that the issue leagues have of over the fair players, likely which appellate be would met by the leagues money in asking exchange, which they are for very unlikely to do. the Therefore, it is players to give unlikely up more that there American will be sports any leagues, Comment disciplinary proposes; however, similar let systems changes have been established alone in in other the something nations major as and drastic internationally, as showing that this it can be done. recent CBA negotiations suggest that disciplinary issues important to the players or the players’ unions. are not very negotiations disciplinary appeals will suddenly become more important, policies, which work to varying degrees, incorporated into the American sports governance structure remains to be seen. One thing is certain, changes need to be disciplinary made. The current provisions in professional the sports leagues are ambiguous, CBAs at best, as of to what will result conduct in the punishment, and the extent of the punishment four that will be major handed down. American variety of changes to monetary issues, but, other than a change to drug testing, no other mentions of disciplinary provisions.

2013] 2013] not unique to the changes NFL; the to new NBA provisions. monetary CBA also involved issues, mostly and did not address disciplinary A (Nov. 22, 2011, 2:45 PM), http://mlb.mlb.com/news/article.jsp?ymd=20111122&content_id=26 PM), 2:45 (Nov. 2011, 22, 026776. at art. XII, § A–B, NBA CBA, at CBA, art. § NBA XII, A–B, 185. note accompanying Unfortunately, this means that the players and the fans will likely have and inflexible. a system that is unfair, inconsistent, to deal with PM), http://espn.go.com/nba/story/_/page/CBA-111128/how-new-nba-deal-compares-last-one. PM), http://espn.go.com/nba/story/_/page/CBA-111128/how-new-nba-deal-compares-last-one. 34609-mqt_97-2 Sheet No. 157 Side A 03/17/2014 11:30:34 03/17/2014 A Side 157 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 157 Side B 03/17/2014 11:30:34

, 354 M K PM

C Y [97:2 the the 12:33 355

Thus, it is a a is it Thus, notes 263–68 and 358 (Jan. 14, 2013), 2013), 14, (Jan. NFL, NFL, Referees End OST P

.

(Sept. 27, 2012, 1:52 AM), ASH see see also supra , W ODAY T

and the punishment of the San San the of punishment the and 356 Unfortunately, leagues are unlikely unlikely are leagues Unfortunately, , USA N.B.A. N.B.A. Reaches Tentative Deal to Save Season 359 as well as many other situations. This This situations. other many as well as note note 226, at 110–11; 357 supra supra Howard Beck, Beck, Howard

note 23. 23. note MARQUETTE LAW REVIEW LAW MARQUETTE 352 See ) 3/10/2014 supra notes 126–29 and accompanying text. text. accompanying and 126–29 notes notes 78–79, 86–90, 118–22 and accompanying text. text. accompanying and 78–79, 118–22 86–90, notes II. Part text. accompanying and 85–95 notes ELETE note 162 and accompanying text. text. accompanying and 162 note D OT OT N As was evidenced in Part II, a commissioner will rarely, if if rarely, will commissioner a II, Part in evidenced was As supra Belson, O , Nov. 27, 2011, at A1 (detailing changes in NBA CBA after lockout); Katie 353 The NHL CBA: Analyzing What’s New (D

. See supra . See supra . See . See supra . See supra . See -10 IMES T

357 358. As evidenced by the NHL’s recent CBA negotiations that resulted in a lockout, as Furthermore, the system of appeals that allows the commissioner’s 359. Dobinson & Thorpe, 352 353 354 355 356 Therefore, although the proposed arbitral body would increase the

BRAMS office to hear an appeal on discipline it handed out is a clear conflict of interest that must integrity. be removed from the system to give it more well as the recent NBA and NFL lockouts that little produced to no change in the disciplinary provisions of the CBA. N.Y. Antonio Spurs in the NBA, burden on the leagues conduct will be disciplined, and themselves the specifics of the punishments, similar to more explicitly to the NRL governing documents. lay out what accompanying text. text. accompanying http://usatoday30.usatoday.com/sports/nfl/story/2012/09/27/nfl-referees-end-lockout-after- reaching-new-labor-deal/57846906/1 (detailing the major issues negotiated during referee’s lockout). the NFL Ryan Braun situation in the MLB,

520 encompass the breadth of discipline. conduct for Too which many sufficient reasoning. they of these have decisions doled are out arbitrary and without A http://www.washingtonpost.com/wp-srv/sports/capitals/2013/cba/index.html http://www.washingtonpost.com/wp-srv/sports/capitals/2013/cba/index.html (detailing major changes to the NHL the CBA Lockout after After the lockout); Reaching Mike Garafolo, New Labor Deal Carrera, Carrera, problem will not likely be fixed by each league’s next CBA unless it explicitly is brought up beforehand. CBA only negotiations on the money too and leave the often rest of the focus CBA alone. in disarray, as exemplified by the Bounty-Gate mess in the NFL, The current state of disciplinary systems in the American sports world is ever, overturn or reduce a punishment that he had a hand in creating. fairness, consistency, and flexibility of the current likely be systems, implemented and the it disciplinary procedures of each will league is not to do so because discretionary power. process and giving up it would require transparency in the disciplinary 34609-mqt_97-2 Sheet No. 157 Side B 03/17/2014 11:30:34 03/17/2014 B Side 157 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 158 Side A 03/17/2014 11:30:34 * PM

12:33

BRAMS A

Marquette Law R. EREMY J 521 521 ) 3/10/2014 ELETE D OT OT N O (D

) MAKING THE RIGHT CALL RIGHT THE MAKING ARCH M ORRECT ORRECT (C INAL INAL staff for spending countless hours on all the details that make this publication -F M K BRAMS C Y providing guidance, insight, and constructive criticism. Thank you to Atty. Jesse Beringer for working tirelessly with me to improve Review this Comment. Thank you to possible. the Thank you to my parents, Malva Rabinowitz and what Steve it Abrams, who means taught to me work and Thank have you to my served sisters, Jenessa as and Jessica Abrams, my for their encouragement role and support. models Finally, for thank you to my nearly fiancé, Jazz Glastra, a for being so quarter patient with me, understanding century. of my time commitments, and making my life better just by be being you. I cannot fully express it. rest showing the of lives our to spend plan but in I words, my for love you College. Thank you *Candidate to Dean for Matthew Anderson, J. J.D., Parlow, Prof. Prof. 2014, Chad Matthew J. Marquette Oldfather, Mitten, Prof. Prof. University Paul Andrea M. Law Schneider, School; and Prof. B.A., Melissa 2007, Greipp Kenyon for 2013] 2013] likely to remain game. the of preserve the integrity order to necessary in unchanged until a tremendous scandal makes it A 34609-mqt_97-2 Sheet No. 158 Side A 03/17/2014 11:30:34 03/17/2014 A Side 158 No. Sheet 34609-mqt_97-2