America's Cup Arbitration

This month, America's Cup officials released the 2017 regatta schedule for Bermuda while continuing to remain silent about an arbitration panel decision that reportedly went against organizers and could cost them several million dollars. Team New Zealand is in line to receive a seven figure pay-out after winning a bitter dispute over a breach of contract with the America's Cup Events Authority (ACEA) that reportedly reneged on an agreement awarding Auckland hosting rights of the America's Cup qualifier. After delays of more than a year, an arbitration panel finally assembled last summer to hear the case. It is believed the panel, the make-up of which is still unknown, ruled in Team New Zealand's favor. With blanket confidentiality clauses in place around arbitration, the decision was not publicly released. Since the dispute was lodged, teams have been working on a new timetable which prevents them from launching their boats until the end of this year, making it impossible to reinstate the regatta in Auckland. The competitors voted that all and any detail surrounding any arbitration remain confidential. The decision prohibits teams and individuals from discussing or even confirming the existence of a dispute before the arbitration panel. Doing so could draw sanctions including censure and a fine of up to $1 million. In past America's Cups, quasi-judicial proceedings were conducted with a high degree of transparency as to issues, when they were being heard, and the outcome. Unlike today, previous America's Cup Arbitration Panels even adopted the practice of going a step further and allowed a couple of members of the media to observe the proceedings and report back to a general pool. The defender, Oracle Team USA, will compete in the America's Cup match next summer. The qualifiers will eliminate one of the five challengers. The remaining four will then go into a playoff to determine which team will face two-time defending champion USA. See more here-- http://bit.ly/2fhjikF and http://es.pn/2ecE3tr and http://bit.ly/2fhku7I

Deflategate and latest NFL vs. NFLPA arbitration ruling

In a decision that might impact the ongoing Deflategate saga, this month an Arbitrator ruled that NFL Commissioner Roger Goodell is acting within his rights when he places a player on the exempt list for violating the league’s Personal Conduct Policy: “The Article 46.1(a) ‘action’ that is embodied in the notice to a player and that will be at issue in the Article 46.2(a) appeal (heard either by a hearing officer or the Commissioner himself) must be an ‘action’ of the Commissioner...[T]here is no basis either in the contractual documents or the past practices of the Parties to conclude that the Commissioner may completely delegate to a disciplinary officer or anyone else...” If applied to the Brady case, this ruling could make it improper for Goodell to have delegated his powers to football operations executive Troy Vincent who imposed the punishment. Reportedly, the reason Goodell had Vincent “impose” the discipline was clear-- the commissioner wanted to serve as the arbitrator at the inevitable appeal hearing, because actual independent arbitrators had ruled against him too many times in recent cases-- a role he could not play if he were to be ruling on his own ruling. By delegating the power to Vincent, Goodell remained “impartial” in the process. Apparently, the NFLPA objected in a letter just days after the ruling, stating Vincent had no authority to impose discipline on Brady so it must be set aside. Though an arbitrator can’t force the NFL to re-do the disciplinary process, if the Brady case gets remanded to Judge Richard Berman to examine this issue, it may impact the case of Tom Brady and the NFL. Judge Berman previously used Article 46 to favor Brady’s side over the NFL’s last year, but did not reach Brady’s other claims which included improperly delegating authority to discipline players for conduct detrimental to the NFL. Evidently, NFL precedent demonstrates that, in Article 46 arbitration appeals, players must be afforded the opportunity to confront their investigators. The Deflategate case is currently being decided by a three-judge panel in the United States Court of Appeals for the Second Circuit which heard oral arguments last month. See story here-- http://cbsloc.al/1oVdYTS and http://bit.ly/1MR0UL5 and forthcoming decision at http://www.ca2.uscourts.gov/decisions.html UPDATE: A day after this post, based on a 2-1 vote of a three-judge federal panel, the appeals court reversed the district judge's ruling, siding with Commissioner Goodell over the NFL Players Association.

Arbitrate Deflategate?

This week, NFL Commissioner Roger Goodell issued a four game suspension without pay of quarterback Tom Brady and fined the Super Bowl XLIX-winning New England Patriots $1 million and draft picks for deflating footballs during last year's AFC Championship playoff game where the beat the Indianapolis Colts 45-7. Now there will be an appeal. The NFL Players Association (NFLPA) maintains the NFL's history of inconsistent and arbitrary decisions in disciplinary matters requires that a neutral arbitrator hear an appeal. The league believes Brady's suspension is a fair punishment. An attorney hired by the league to investigate found in a lengthy report that the Patriots used underinflated footballs to their advantage and that Brady probably had at least a general knowledge about it. The report points its finger at equipment assistant and Brady denies being involved. Appeal hearings reportedly begin within 10 days of the league's receipt of an appeal. An attorney for the Patriots published an extensive online rebuttal of the NFL's findings. The NFL claims the quarterback's actions were detrimental to the integrity of the sport. The NFL has not been without controversial decisions of late. Recently, a United States District Judge vacated an arbitration award that upheld Commissioner Goodell’s discipline of Minnesota Vikings running back Adrian Peterson, concluding that Goodell erred in applying a new policy which was not applicable retroactively in that matter. Prior to the vacation of that punishment, an independent and neutral arbitrator, found Goodell abused his discretion when he arbitrarily disciplined running back Ray Rice for a second time. Last month, the Missouri Supreme Court even reviewed the scope of the role of commissioner in arbitration proceedings and found terms designating the commissioner as sole arbitrator unconscionable and unenforceable, being an individual in a position of bias. Accordingly, Goodell is precluded from reviewing, and ruling on the decisions of his employer in arbitration. This aligns with the trend in employing independent and neutral arbitrators to oversee NFL disputes. See more news here-- http://bit.ly/1bTivjm and http://cnn.it/1cXtTfz and at the NFLPA https://www.nflpa.com/news/all-news/nflpa-files-appeal-on-behalf-of-tom-brady

Armstrong Arbitration

A three-arbitrator panel in Texas found 2-1 in favor of SCA Promotions, a Dallas sports insurer that paid cyclist Lance Armstrong millions of dollars in bonuses for winning seven Tour de France titles. SCA’s dispute with Armstrong began over a decade ago, after the former U.S. Postal Service team member won the 2004 Tour de France, the sixth of his seven consecutive victories. Following doping allegations, that case went to arbitration in 2005, and SCA Promotions was forced to pay $7.5 million in 2006. Evidence from the SCA arbitration dispute was used against him, including testimony from a former teammate and his wife, who said they heard Armstrong admit to using performance-enhancing drugs back in 1996. Armstrong was later banned for life by the United States Anti-Doping Agency and stripped of his seven Tour de France titles in August 2012. Armstrong did not admit to taking banned drugs until a January 2013 televised interview with Oprah Winfrey. SCA accused Armstrong of fraud and filed suit in early 2013, and after the case was sent to arbitration, Armstrong unsuccessfully tried for an appeal with the Texas Supreme Court to have the case blocked. In a filing yesterday, SCA Promotions asked a Texas state judge to confirm the arbitration award against Armstrong. It wants the court to enter a $10 million judgment against Armstrong and former team owner that may enable it to collect payment. Armstrong’s lawyer maintains that the dispute was fully and finally settled voluntarily years earlier. However, reportedly, Armstrong offered to pay SCA the entire $10 million, despite the absence of any legal basis for the sanction, and SCA refused the offer. Armstrong is also facing a $100 million fraud lawsuit from the federal government. See stories here-- http://on.wsj.com/17L3fUG and http://on.si.com/1zkTpzc