How independent are the “neutral, independent” arbitrators who handle CBA grievances?

AP

When it comes to the resolution of disputes like the Antonio Brown helmet kerfuffle, the NFL lately has been careful to push to the media the terms “neutral” and “independent” when describing the arbitrator who makes the decision. So how neutral and independent are the arbitrators who resolve so-called “non-injury” grievances?

Review of the relevant provision of the Collective Bargaining Agreements shows that they may, in the grand scheme of things, be neither.

That’s not to say they have a bias for the league. But Article 43, Section 6 of the CBA shows just how vulnerable each member of the arbitration panel maintained by the NFL and NFL Players Association is to losing the assignment.

The CBA requires the establishment of a four-person pool of arbitrators, with one of them assigned (presumably randomly) to handle each non-injury grievance. Every year, in a window that opens on July 10 and closes on July 20, the NFL and the NFLPA have the right to fire any member of the arbitration panel, no questions asked. And if one side exercises that right, the other side has the ability to fire another member of the arbitration panel within the next two days, again no questions asked.

This means that, while each arbitrator has independence over every given grievance, there’s a big-picture dance in which each arbitrator must engage in order to keep the job over the long haul. If/when an arbitrator strings together too many rulings in favor of the NFLPA, the NFL may be inclined to pull the rip cord, and vice-versa. And if the rip cord gets pulled as to one arbitrator who skews too far in the direction of one side, the remaining arbitrator of the four (now three) who is regarded as being the most favorable to the other side ends up on the endangered species list.

Not that these assignments make or break an arbitrator’s annual income. But association with pro football adds value to the arbitrator’s career as an arbitrator, just like it does for a doctor. (“Oh, so-and-so handles arbitrations for the NFL, that must be a good arbitrator!”)

When a grievance is clear-cut and open and shut, issues like this won’t matter. But legal battles present plenty of close questions, with each side having lawyers who are capable of advancing a persuasive interpretation that sets the case up to go either way. And the NFL and NFLPA surely track in exhaustive detail the decisions made by each of the four arbitrators, and the two sides undoubtedly have opinions as to whether a given arbitrator is more or less likely to see close cases their way.

So in order to ensure a long-term assignment as a non-injury grievance arbitrator for the NFL and the NFLPA, the arbitrator needs to have a big-picture reputation for being in the middle. Which means that the arbitrator needs to, over the course of resolving multiple grievances, produce a sufficiently mixed bag of rulings that prevent one side or the other from deciding that the arbitrator needs to go.

Which means that, in any given case (especially in the close ones), the arbitrator’s track record becomes relevant. If the arbitrator has been leaning toward the NFL in recent cases, it may be time for a correction, and vice-versa.

There’s another factor to consider in cases like this. If the arbitrator senses that one side feels very strongly about a given dispute and that the other side doesn’t, the arbitrator may be more inclined to take the path that will be less likely to alienate one of the parties.

Thus, while the arbitrators are neutral and independent in each given case, the broader circumstances — influenced by the annual threat of summarily being fired — makes them less neutral and independent than the labels would suggest.

What that means for Antonio Brown Helmet Grievance 2.0 can’t be determined without knowing which arbitrator was assigned to the case, and without knowing more about that arbitrator’s history of rulings and whether that arbitrator reasonaly should be concerned that the next pro-NFL or pro-NFLPA ruling could be the last one. It also can’t be determined without knowing with certainty whether one side feels far more strongly about the issue than the other side.

Here’s a semi-educated guess: The NFL cares much more about winning the Antonio Brown helmet fight than the NFLPA does. Regardless of how strongly Brown feels about it, Brown can’t fire the arbitrator; the NFLPA can. And if the NFLPA, which works jointly with the NFL to identify helmets that can and can’t be used, quietly believes that Brown should just pick a new helmet and go to work, the arbitrator may sense this, and the arbitrator may be more likely to enter a ruling in favor of the league — no matter how strong Brown’s argument that he should get a one-year grace period to keep wearing a Schutt AiR Advantage may seem to be.

19 responses to “How independent are the “neutral, independent” arbitrators who handle CBA grievances?

  1. I think we all saw in the Deflategate saga and even the Ray Rice incident that no league investigation or grievance is neutral or independent. The front office of the NFL, specifically the Commissioner and his lead counsel, is full of liars and dishonest people. To claim that their main priority is for the integrity of the game is an absolute joke. They constantly move the goalposts (no pun intended) in their claims to make themselves feel better in their bubble of dishonesty whether it’s claiming they never saw the elevator video or that the Wells Report was independent even though NFL lead counsel Jeffrey Pash actually oversaw the report.

    This thing with the helmet can be easily resolved but won’t because the NFL is too worried about money from the helmet companies or probably more from future grievances filed by disabled players, which I completely understand the latter. They could grandfather Brown’s helmet by simply making him sign a waiver. We’re talking about maybe a handful of players that are “more probable than not” a little upset over the helmet ruling. So, make them sign a waiver that the league cannot be sued over any concussion issues at all by these players who sign the waiver. Might be too simplistic, but it seems pretty simple to me. These players would still have deal with concussion protocols if they do sustain a concussion, but they cannot sue the league over concussions for any reason. With that, another colossal waste of time, energy and resources can be avoided.

  2. They have to Schutt this thing down before the Schutt hits the fan. Get a friendly arbitrator in there and make it an open and Schutt case.
    Schutt yeah.

  3. Name me any business that relies on arbitrators that won’t get rid of those, that more often not, rule against them

  4. I’ve never met a human being who was completely independent of anything. If you’re looking for someone who is brain dead, then I probably wouldn’t want them being an arbitrator. Trying to find something that doesn’t exist is not a very good use of time. I love the NFL, even if it’s the only thing in the world that isn’t perfect. From the looks of the revenue they’re pulling in every year, I’m not the only one that feels that way.

  5. Brown or anyone else signing a waiver to hold the NFL blameless for concussion and other head injury issues would be nearly worthless protection for the NFL. In the end, someone would still bring suit against them and if they got it to a jury, they would prevail. It’s too easy to argue the NFL was still responsible.

  6. You make some interesting points. The key to ensuring the arbitrators are independent is to ensure that income from the NFL makes up a small portion of their total income from acting as an arbitrator (and of course that their non-arbitrator income, if any does not create any conflicts of interest).

    If the arbitrator is acting like an activist judge and makes erroneous decisions, others will not trust them to act as an arbitrator, and they will lose other non-NFL income. This would make getting fired from their NFL not a huge deal, but making a bad decision potentially something that will harm their career.

    I am not sure if the above is the case or not, however based on the number of grievances reported on every year, I think there is a good chance the arbitrators can’t earn a living from their NFL money alone.

  7. You have half a pie on this one. We have several years of data that is not brought forward. Over the course of this CBA… How many have been fired? By which side? What were the rulings? Did the arbitrator seemed biased or just randomly received cases that had clear outcomes? While asking the right question, it would seem like the answer is knowable. Unless the two sides keep it confidential. Which would be another story. This has power of the press written all over it. No?

  8. This we do know: The NFL front office is run by jealous social justice warriors who can’t be trusted. And some in the media carry their water and cover for their transgressions. This ain’t your mothers NFL

  9. if you rule for the league and lose your gig, they’ll find some other well paid gig for you, not so if you rule for the player. we have seen that the league obviously pays investigators to give them the result they want no matter the evidence to the contrary.

  10. The NFL can’t even find any neutral/independant refs as is seen in almost every game and you think they can find any true neutral/independant arbitrators, KEEP DREAMING!

  11. “Should have known” = guilty in the NFL and they can suspend, fine and take away draft picks for a player destroying their own phone? BUT both teams footballs were found to be under the required PSI but only one team was fined/suspended and docked draft picks = enough said!

  12. I can tell you he KNEW about the helmet change a long time ago! There is an entire wall in the Steeler locker room that explains the uniform requirements. I’ve seen it, and I assume every locker room has something similar. If he felt so strongly about the helmet, he should have tried to get grandfathered when they were first informed, like Brady and Rodgers. Even Tom Brady is going with the

  13. (Sorry, bumped “post” button before I finished my comment) Even Brady and Rodgers are switching at this point. And his reason is ridiculous! It looks funny and it’s too big. Well, AB needs to go on with that bigger helmet to fit his big head!
    For the past year, all of this is to keep focus on HIM. He’s taking his ball and going home like a child. Forget the Steelers and Raiders. AB plays for AB. That’s all. Sorry Raiders, but he’s your problem now…

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