Under the common law, employment contracts are submitted to civil courts to resolve disputes over interpretation, breach, and remedies. As an alternative, parties in labor contexts can agree to resolution by an impartial arbitrator, whose decision is reviewed deferentially by judges. Where employees are subject to rules of a private association, they are often contractually obligated to submit their claims to an internal association officer or committee; the common law provides for judicial review more limited than a civil contract but more searching than is the case for an impartial labor arbitrator. Recently, the National Football League and its players have gone to federal court in well-known disputes concerning employee discipline. Although the collective bargaining agreement expressly removes these issues from impartial arbitration, the cases have curiously been litigated as if the league commissioner is an arbitrator. This Article suggests that this is the wrong standard. It creates an anomaly where a unionized player’s grounds for review are narrower than a non-union employee. It also creates an inevitable incentive for federal judges to distort the deferential rules of review of labor arbitration designed for expert impartial arbitrators, when reviewing the decision of a management executive. We discuss the baseline law of private association and why it is a superior standard of judicial review in these cases.
Stephen F. Ross and Roy Eisenhardt, Clear Statement Rules and the Integrity of Labor Arbitration, 9 Y.B. Arb. & Mediation Forthcoming (2017).