SCOTUS Kicks Arbitration Case

This month, the U.S. Supreme Court kicked a Kindred Healthcare arbitration case, declining to review the case for a second time. Last year, the High Court sided with Kindred in Kindred Nursing Ctrs. LP v. Clark, which related to whether an arbitration agreement signed by a Power Of Attorney (POA) is enforceable if not granted explicit permission to sign such a document in the POA. Kindred petitioned for certiorari this time arguing the Kentucky Supreme Court failed to adhere to the decision in its favor. The long term care provider asserted the state refused to honor the Justices’ interpretation of the Federal Arbitration Act (FAA). The state court declined to honor the arbitration agreement signed by power of attorney, without the nursing home resident giving express authority to sign away the right to a trial. The nursing home relied on two provisions in the power of attorney, one giving power to demand or collect money and institute legal proceedings, and another giving the power to make contracts “in relation to both real and personal property.” The court found that the arbitration agreement “was not the enforcement…of something then due or to become due” “nor was it the making of a contract…pertaining to” property. As a result, “that aspect of the Extendicare decision remains undisturbed.” The case rejected by the Supreme Court was one of three others consolidated under Clark, and was bounced back to Kentucky. Interestingly, the Kentucky high court just became the first state to find employers may not require employees to sign arbitration agreements as a condition of their employment, indicating a hostility toward FAA preemption and the arbitration process that may bleed over into this area of law as well. See more here-- https://bit.ly/2S2Wzsx and https://bit.ly/2R28ju1

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.