NHL Players’ Association officials are confident they’ll prevail in a lawsuit brought by the NHL to overturn a neutral arbitrator’s decision.
“We expect to win the federal court case,” NHLPA special counsel Steve Fehr stated flatly.
The NHL sued the NHLPA last month in New York federal court, asking for an order overturning the decision of a neutral arbitrator, since fired by the league, and reinstating NHL Commissioner Gary Bettman’s decision.
It is the first case involving a new right that the players bargained for in the 2013 collective-bargaining agreement, the right to have suspensions of more than six games appealed to a neutral arbitrator.
Bettman suspended Calgary Flames defenseman Dennis Wideman for 20 games after Wideman knocked down linesman Don Henderson in a January game. But in March, the neutral arbitrator, James Oldham, cut the suspension to 10 games.
The NHL fired Oldham on July 1, after it filed the lawsuit. The NHL CBA allows both the NHL and the NHLPA the right to terminate the neutral arbitrator on July 1 for any reason or no reason.
Said Fehr, “We think he [Oldham] was well within his authority in making the decision that he made, and it is difficult to overturn an arbitration award.”
Fehr said the union was confident it would win the lawsuit for several reasons, but declined to discuss any others, saying the NHLPA would make its argument in court papers. The union has until Friday to answer the NHL’s complaint.
The players fought for the right to have discipline of this kind heard by a neutral arbitrator during the 2012-13 lockout, which ended after 119 days with the agreement on the CBA.
“It’s an important case,” Fehr said. “It’s a case of first impression involving a new right that the players didn’t have before, a new provision that is new to this CBA and had never been utilized before. And secondly, it’s important to have an effective arbitration.”
NHL Deputy Commissioner Bill Daly would not comment on whether an arbitrator’s decision was difficult to overturn, but he said the case is important to the league, as well.
“We believe the arbitrator failed or refused to apply the specific standard of review that is expressly set forth in the Collective Bargaining Agreement,” Daly wrote in an email. “It was not within the arbitrator’s bargained for jurisdiction or authority to review video and make his own factual findings as to what transpired. His authority was expressly limited to ruling on whether the Commissioner’s determination was supported by ‘substantial evidence’ — period, end of story. He went well beyond doing that as made clear by his Opinion.”
The NHL is represented by Proskauer, and Joseph Baumgarten, partner and co-chair of the firm’s labor and employment law department, is the lead attorney. The NHLPA is represented by Bruce Meyer, a partner at Weil law firm, and Virginia Seitz, a partner at Sidley Austin.
The case has been assigned to U.S. District Judge Alison Nathan of the Southern District of New York, the district where the NFL Players Association appealed NFL Commissioner Roger Goodell’s discipline of New England Patriots quarterback Tom Brady. Judge Richard Berman overturned Goodell’s arbitration decision, but the 2nd U.S. Circuit Court of Appeals reversed Berman, citing appellate court deference to arbitrators. NFL players did not have neutral arbitration rights in that case.
Mark Levinstein, a partner at Williams & Connolly who represents players, teams and leagues, said that there are many differences in the cases — including that Goodell acted as an arbitrator in the Brady case and that there are no claims that Oldham was biased or involved in the underlying discipline — but that the main issue is the same.
“It’s the same question when you are reviewing the decision of an arbitrator: Did he apply the contract?” Levinstein said.
“I think the NHL has a low chance of success,” Levinstein added. “Even if they are able to convince a district judge to substitute his or her judgment for the judgment of the arbitrator, which a judge should not do, the 2nd Circuit would almost certainly reverse.”
Liz Mullen can be reached at lmullen@sportsbusinessjournal.com. Follow her on Twitter @SBJLizMullen.
