Case 1:17-cv-06761-KPF Document 45 Filed 10/25/17 Page 1 of 17

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

NATIONAL FOOTBALL LEAGUE MANAGEMENT

COUNCIL,

Plaintiff,
Case No. 1:17-cv-06761-KPF
v.

NATIONAL FOOTBALL LEAGUE PLAYERS

ASSOCIATION,

Defendant.

MEMORANDUM OF LAW IN FURTHER SUPPORT OF

THE NFLPAS MOTION FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .................................................................................................... 1

ARGUMENT .................................................................................................................................. 3
I. Elliott Faces Irreparable Harm Whereas The NFL Faces None ............................. 3
II. The NFLPA And Elliott Have, At A Minimum, Raised Serious Questions
That The Arbitrators Exclusion Of Pertinent and Material Evidence
Warrants Vacatur .................................................................................................... 4
CONCLUSION ............................................................................................................................. 10

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TABLE OF AUTHORITIES

Page(s)

Cases

AllisChalmers Corp. v. Lueck,

471 U.S. 202 (1985) ...................................................................................................................7

Bell Aerospace Co. Div. of Textron v. Local 516, Intl Union, UAW of Am.,
500 F.2d 921 (2d Cir. 1974)...................................................................................................6, 7

Burns Intl Sec. Servs., Inc. v. Intl Union, United Plant Guard Workers of Am.,
47 F.3d 14 (2d Cir. 1995) ..........................................................................................................7

Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd.,
598 F.3d 30 (2d Cir. 2010).................................................................................................1, 2, 4

Dolan v. ARC Mech. Corp.,

No. 11 Civ. 09691 (PAC), 2012 WL 4928908 (S.D.N.Y. Oct. 17, 2012) .................................6

Fairfield Towers v. Fishman,

No. 02 Civ. 6402 (RMB), 2003 WL 21738976 (S.D.N.Y. July 28, 2003) ................................6

Grinnell Housing Dev. Fund Corp. v. Local 32B-32J, SEIU, AFL-CIO,

767 F. Supp. 63 (S.D.N.Y. 1991)...............................................................................................7

Gulf Coast Indus. Workers Union v. Exxon Co.,

70 F.3d 847 (5th Cir. 1995) .......................................................................................................5

Hall St. Assocs., L.L.C. v. Mattel, Inc.,

552 U.S. 576 (2008) ...................................................................................................................8

Intl Longshoremens Assn, AFL-CIO v. West Gulf Marine Assn,

605 F. Supp. 723 (S.D.N.Y. 1985).............................................................................................7

Kaplan v. Alfred Dunhill of London, Inc.,

No. 96 Civ. 0258 (JFK), 1996 WL 640901 (S.D.N.Y. Nov. 4, 1996) .......................................6

Local 210 Warehouse & Prod. Emps. Union, AFL-CIO v. Envtl. Servs., Inc.,
221 F. Supp. 3d 306 (E.D.N.Y. 2016) .......................................................................................7

Midtown Realty Co. v. Bevona,

No. 97 Civ. 9371 (DC), 1999 WL 359762 (S.D.N.Y. June 4, 1999).........................................6

Minkoff v. Scranton Frocks, Inc.,

181 F. Supp. 542 (S.D.N.Y.), affd, 279 F.2d 115 (2d Cir. 1960) .............................................7

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Move, Inc. v. Citigroup Global Mkts., Inc.,

840 F.3d 1152 (9th Cir. 2016) ...................................................................................................5

Neshgold LP v. New York Hotel & Motel Trades Council, AFL-CIO,

No. 13 Civ. 2399 (KPF), 2013 WL 5298332 (S.D.N.Y. Sept. 19, 2013) ..................................8

New Yorks Health & Human Servs. Emps. Union, 1199/SEIU, AFL-CIO v.
Grossman, No. 02 Civ. 6031(SLT), 2007 WL 2907386 (E.D.N.Y. Oct. 3,
2007) ..........................................................................................................................................7

NFLMC v. NFLPA (Brady II),

820 F.3d 527 (2d Cir. 2016)............................................................................................. passim

NFLPA v. NFL (Elliott),

No. 17-40936, 2017 WL 4564713 (5th Cir. Oct. 12, 2017) ........................................1, 3, 4, 10

NFLPA v. NFL (Elliott),

No. 4:17-CV-00615, 2017 WL 3940545 (E.D. Tex. Sept. 8, 2017) ................................ passim

NFLPA v. NFL (Elliott),

No. 4:17-CV-00615, 2017 WL 4124105 (E.D. Tex. Sept. 18, 2017) ........................................3

Otis Elevator Co. v. Local 1, Intl Union of Elevator Constructors,

No. 03 Civ. 8862 (DAB), 2005 WL 2385849 (S.D.N.Y. Sept. 23, 2005) .................................6

Rite Aid of New York, Inc. v. 1199 SEIU United Healthcare Workers East,
No. 16-3342-CV, 2017 WL 3601240 (2d Cir. Aug. 22, 2017)..............................................3, 9

Roche v. Local 32B-32J SEIU

755 F. Supp. 622 (S.D.N.Y. 1991).............................................................................................6

Supreme Oil Co. Inc. v. Abondolo,

568 F. Supp. 2d 401 (S.D.N.Y. 2008)........................................................................................6

Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No. 506 v. E.D.
Clapp Corp., 551 F. Supp. 570 (N.D.N.Y. 1982), affd sub nom. Teamsters,
Chauffeurs v. Ed Clapp Corp., 742 F.2d 1441 (2d Cir. 1983)...................................................7

Tempo Shain Corp. v. Bertek, Inc.,

120 F.3d 16 (2d Cir. 1997).....................................................................................................5, 6

Textile Workers Union of Am. v. Lincoln Mills,

353 U.S. 448 (1957) ...................................................................................................................7

Trs. for the Mason Tenders Dist. Council Welfare Fund v. One Ten Restoration
Corp., No. 15 Civ. 10000 (JPO), 2016 WL 6780007 (S.D.N.Y. Nov. 16, 2016)......................6

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Trs. of NYC Dist. Council of Carpenters Pension Fund v. Golden Dev. & Constr.
Corp., No. 17 Civ. 1051 (VSB) (JLC), 2017 WL 2876644 (S.D.N.Y. July 6,
2017) ..........................................................................................................................................8

Trs. of NYC Dist. Council of Carpenters v. Port Parties, Ltd.,

No. 16 Civ. 4719 (KPF), 2017 WL 3267743 (S.D.N.Y. July 31, 2017) ...................................5

United Paperworkers Intl Union, AFL-CIO v. Misco, Inc.,

484 U.S. 29 (1987) .............................................................................................................2, 5, 8

Statutes

9 U.S.C. 1 ......................................................................................................................................8

9 U.S.C. 911 ..............................................................................................................................8

29 U.S.C. 141-197 ......................................................................................................................2

FAA Section 10(a)(3) ..........................................................................................................2, 5, 6, 7

FAA Section 10(c) ...........................................................................................................................7

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PRELIMINARY STATEMENT

The NFLPA hereby replies in further support of its Motion for Temporary Restraining

Order and Preliminary Injunction (Motion) (ECF Nos. 30 (Order to Show Cause), 32), and in

particular, for converting the extant TRO into a preliminary injunction.

The unusual procedural history of this dispute has yielded one of the strongest records

possible for continued preliminary injunctive relief. Two federal district court judges have

already enjoined the NFL from enforcing its suspension of Ezekiel Elliott. See ECF No. 31

(SDNY TRO); NFLPA v. NFL (Elliott), No. 4:17-CV-00615, 2017 WL 3940545 (E.D. Tex.

Sept. 8, 2017) (EDTX PI Order). Whats more, two Fifth Circuit Judges have observed that

the arguments and concerns about the arbitration process may have merit, and a third has

found that Arbitrator Hendersons misconduct impugned the integrity of the arbitration

process. NFLPA v. NFL (Elliott), No. 17-40936, 2017 WL 4564713, at *5 n.8 (5th Cir. Oct. 12,

2017) (Fifth Circuit Order); id. at *10 (Graves, J., dissenting).

There also is unanimity among the federal judges who have considered the balance of the

equities: Elliott faces imminent and irreparable harm, and the [NFLPAs and Elliotts] hardship

substantially outweighs the [NFLs]. SDNY TRO at 2-3; see also EDTX PI Order at *10-*11;

Fifth Circuit Order at *11 (Graves, J., dissenting). Thus, under the controlling preliminary

injunction test, the NFLPA must merely establish serious questions going to the merits to make

them a fair ground for litigation. SDNY TRO at 3 (applying Citigroup Global Mkts., Inc. v.

VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010)). This Court need

look no further than the holdings and observations of the five federal judges who have previously

considered the merits of the NFLPAs vacatur claim to conclude that, at a minimum, the NFLPA

has presented such serious questions.

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As Judge Crotty stated: It is well established that in this Circuit the standard for an

entry of a TRO is the same as for a preliminary injunction. SDNY TRO at 2 (quoting

Citigroup). The NFLPA thus respectfully submits that there is no basis to depart from Judge

Crottys ruling entering the TRO in considering the present request for a preliminary injunction.

This Memorandum principally responds to the NFLs latest arguments that (i) Brady II

forecloses judicial review of labor arbitrations for fundamental fairness, and (ii) labor

arbitrations may be vacated under the Labor Management Relations Act (29 U.S.C. 141-197,

LMRA) only when there is a breach of a specific CBA term. See ECF No. 37 (Opposition)

at 12-14. Judge Crotty was quite right to hold that these arguments are quite wrong. SDNY

TRO at 4.

As demonstrated below, while Brady II questioned the existence of a free-floating

fundamental fairness standard in LMRA cases, it did not preclude courts from continuing to look

to the standards of the Federal Arbitration Act (FAA) to determine whether vacatur is

warranted. See NFLMC v. NFLPA (Brady II), 820 F.3d 527, 545 n.13 (2d Cir. 2016). Here,

the NFLPAs vacatur claim derives directly from the text of the FAAnot a free-floating,

rudderless notion of fairnesswhich compels vacatur when arbitrators are guilty of misconduct

. . . in refusing to hear evidence pertinent and material to the controversy. FAA, 9 U.S.C.

10(a)(3). The Supreme Court has, in fact, instructed courts reviewing labor awards under the

LMRA to look to the FAA for guidance and to fashion a uniform federal common law on that

basis. United Paperworkers Intl Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 40 n.9 (1987).

Regarding the NFLs new argument that the absence of any allegation that the NFL

violated the CBA itself is sufficient to deny the TRO (Oppn at 14), we are aware of no Court,

anywhere, that has so limited the LMRA. The NFLs position flies in the face of well-settled

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grounds for vacating labor awardssuch as arbitrator corruption and biasthat do not concern

CBA provisions but the conduct of the arbitrator and the arbitration process. See, e.g., Rite Aid

of New York, Inc. v. 1199 SEIU United Healthcare Workers East, No. 16-3342-CV, 2017 WL

3601240, at *2 (2d Cir. Aug. 22, 2017).

ARGUMENT

I. Elliott Faces Irreparable Harm Whereas The NFL Faces None

Judge Crotty has already held that, absent injunctive relief, Elliott would suffer

irreparable harm because he stands to miss more than one-third of the NFLs regular season and

[i]mproper suspensions can undoubtedly result in irreparable harm. SDNY TRO at 2; id. at 3

(Elliott stands to suffer significant harm to his career and reputation that cannot be monetarily

compensated.). This conclusion is in accord with the Texas district courts rulings, as well as

the many other courts that have considered suspensions or boycotts of professional athletes. See

EDTX PI Order at *11 (The Court joins the long line of cases that have previously held that

improper suspensions of professional athletes can result in irreparable harm to the player.)

(collecting cases).

On the other hand, the three federal judges to consider the balance of the hardships and

any harm to the NFL have uniformly held that the NFL faces no harm. See SDNY TRO at 2-3

(NFL stands to suffer little, if any harm by temporarily allowing Mr. Elliott to play and [o]n

balance, the Defendants hardship substantially outweighs the Plaintiffs); NFLPA v. NFL

(Elliott), No. 4:17-CV-00615, 2017 WL 4124105, at *6 (E.D. Tex. Sept. 18, 2017) (Stay

Order) ([T]he Court is not interfering with the [NFLs] internal procedures, but is ensuring that

the CBA is carried out in the manner pr[e]scribed.); Fifth Circuit Order at *11 (Graves, J.,

dissenting) (the NFL has failed to show any irreparable injury). Indeed, the NFL may simply

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impose the suspension over Elliott at a later time if the Defendants counterclaim for vacatur is

denied. SDNY TRO at 3. The NFLs Opposition offers no basis to upend these rulings.

II. The NFLPA And Elliott Have, At A Minimum, Raised Serious Questions That The
Arbitrators Exclusion Of Pertinent and Material Evidence Warrants Vacatur

Because, [o]n balance, the Defendants hardship substantially outweighs the Plaintiffs,

SDNY TRO at 3, the NFLPA need only establish sufficiently serious questions going to the

merits to make them a fair ground for litigation. Id. (citing Citigroup, 598 F.3d at 35). Each of

the five federal judges who have considered the NFLPAs claim that the arbitrators exclusion of

pertinent and material evidence deprived Elliott of a fundamentally fair hearing have found

those claims likely to succeed or, at the very least, that they may have merit. See id. at 3-4;

EDTX PI Order at *7-*10; Fifth Circuit Order at *5 n.8; id. at *9-*10 (Graves, J., dissenting).

These judicial opinions, a fortiori, present serious questions sufficient to carry the

NFLPAs burden. The NFL nonetheless offers the remarkable observation that the preliminary

injunction should be denied because this is an exceedingly easy case. Oppn at 13. The NFLs

position rests on two misstatements of the law.

First, the NFL asserts that in Brady II, the Second Circuit held that there is no such

thing as fundamental fairness review under the Labor Management Relations Act, Oppn at 1,

claiming it is instead a standard that applies only to cases interpreting the [FAA]. Id. at 13.

Judge Crotty swiftly rejected this contention, holding the argument that Brady II forecloses

judicial review of arbitral decision[s] for fundamental fairness was quite wrong. SDNY TRO

at 3-4. As Judge Crotty explained, the statement in Brady II that this Circuit had never held that

the requirement of fundamental fairness applies to arbitration awards under the LMRA, 829

F.3d at 545 n.13, and its determination that it need not decide whether the free-floating

procedural fairness standard of the FAA ought to be imported to our review of arbitrations

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conducted pursuant to the LMRA, id., was simply an acknowledgment that, [a]t most, . . . this

issue is open in the Second Circuit. SDNY TRO at 4.1

Whatever open issue there might be about a free-floating fundamental fairness

ground for vacating a labor award, however, the NFLPA has not presentedand Judges Crotty

and Mazzant did not applyone. Instead, the NFLPAs vacatur claim rests on the statutory text

of the FAA, which expressly requires vacatur when an arbitrators deprival of pertinent and

material evidence rises to the level of misconduct such that the arbitration is rendered

fundamentally unfair. FAA, 9 U.S.C. 10(a)(3); see also SDNY TRO at 3 (In effect,

Defendant was deprived of opportunities to explore pertinent and material evidence, which raises

sufficiently serious questions); EDTX PI Order at *7, *9-*10 (finding deprival of pertinent and

material evidence).2

The Supreme Court has specifically instructed courts applying the LMRA to look to the

FAA for such guidance in formulating a federal common law. See Misco, 484 U.S. at 40 n.9.

1
Your Honor has also acknowledged the Brady II statement that the Second Circuit had never
decided whether to apply a free-floating fundamental fairness standard as a viable ground for
vacatur in the LMRA context. Trs. of NYC Dist. Council of Carpenters v. Port Parties, Ltd., No.
16 Civ. 4719 (KPF), 2017 WL 3267743, at *14 (S.D.N.Y. July 31, 2017). That case, however,
afforded the Court no opportunity to examine the viability of any fundamental fairness standard
because there was no evidence petitioners had even asked the arbitrator for the relief they later
claimed was unfairly denied to them. Id. at *14-*15. As Judge Crotty noted, the same can be
said of Brady II, where the evidence deprived was found merely to be collateralnot pertinent
and material. SDNY TRO at 4 n.2.
2
The pertinent and material evidence standard has been deeply engrained in the law of
arbitration for nearly 100 years. The pertinent and material evidence basis for vacating an
arbitral award has been in the statutory text of the FAA since its enactment in 1925. Courts
including the Second Circuithave repeatedly interpreted that provision to mean that courts will
review evidentiary determinations where fundamental fairness is violated. Tempo Shain
Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997); Move, Inc. v. Citigroup Global Mkts., Inc.,
840 F.3d 1152, 1159 (9th Cir. 2016) (holding that a party was deprived of a fundamentally fair
hearing and thus entitled to vacatur under Section 10(a)(3)); Gulf Coast Indus. Workers
Union v. Exxon Co., 70 F.3d 847, 850 (5th Cir. 1995) (assessing whether the arbitration
proceedings were fundamentally unfair in LMRA case and affirming district courts vacatur
grounded in Section 10(a)(3)).

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Particularly in the context of a petition to confirm or vacate an arbitration award, [t]he policies

of [S]ection 301 and the FAA are analogous. Otis Elevator Co. v. Local 1, Intl Union of

Elevator Constructors, No. 03 Civ. 8862 (DAB), 2005 WL 2385849, at *4 (S.D.N.Y. Sept. 23,

2005) ([T]his Court considers the instant case in light of the body of law developed under

Section 301 and draws on the FAA for guidance.).

Accordingly, when considering petitions to confirm or vacate a labor award under the

LMRA, many courts in this Circuit have considered the fundamental fairness of the arbitration,

looking to the FAA to develop and apply a consistent federal common law.3 If this were not

3
E.g., Bell Aerospace Co. Div. of Textron v. Local 516, Intl Union, UAW of Am., 500 F.2d 921,
923 (2d Cir. 1974) (reviewing motion to vacate labor arbitration award under FAA Section 10 to
determine whether union had been denied a fundamentally fair hearing); Trs. for the Mason
Tenders Dist. Council Welfare Fund v. One Ten Restoration Corp., No. 15 Civ. 10000 (JPO),
2016 WL 6780007, at *3-4 (S.D.N.Y. Nov. 16, 2016) (reviewing labor arbitration, post Brady II)
(The relevant inquiry under both the federal and New York arbitration statutes is whether
misconduct by the Arbitrator resulted in a denial of fundamental fairness.); Dolan v. ARC
Mech. Corp., No. 11 Civ. 09691 (PAC), 2012 WL 4928908, at *3 (S.D.N.Y. Oct. 17, 2012)
(applying FAA Section 10(a)(3) to consider whether party to labor arbitration had been denie[d]
. . . sufficient opportunity to present proof of a claim or defense, amount[ing] to a denial of
fundamental fairness of the arbitration proceeding, so as to justify vacatur); Supreme Oil Co.
Inc. v. Abondolo, 568 F. Supp. 2d 401, 406 (S.D.N.Y. 2008) (Holwell, J.) (considering cross-
motions to confirm and vacate award under LMRA and explaining that, although [a]rbitrators
possess great latitude to determine the procedures governing their proceedings and to restrict or
control evidentiary submissions, arbitrations are still subject to review to assess whether the
process retained fundamental fairness); Fairfield Towers v. Fishman, No. 02 Civ. 6402
(RMB), 2003 WL 21738976, at *2 n.1 (S.D.N.Y. July 28, 2003) ([B]ecause this Court has
jurisdiction pursuant to the Labor Management Relations Act, see 29 U.S.C. 185, the Federal
Arbitration Act [] applies.); id. at *2 (citing Tempo Shain) (arbitration determinations may be
opened up for evidentiary review where fundamental fairness is violated); Midtown Realty Co.
v. Bevona, No. 97 Civ. 9371 (DC), 1999 WL 359762, at *4 (S.D.N.Y. June 4, 1999)
(adjudicating cross-motions to confirm and vacate under LMRA) (Misconduct warranting
vacatur pursuant to Section 10(a) of the FAA must be serious; it must amount to a denial of
fundamental fairness of the arbitration proceeding.); Kaplan v. Alfred Dunhill of London, Inc.,
No. 96 Civ. 0258 (JFK), 1996 WL 640901, at *5 (S.D.N.Y. Nov. 4, 1996) (vacating labor
arbitration award) ([T]he Court finds that the arbitrator violated 9 U.S.C. 10(a)(3) by refusing
to hear evidence pertinent and material to the controversy. This refusal prejudiced Dunhill and
deprived it of a fundamentally fair hearing.); Roche v. Local 32B-32J SEIU 755 F. Supp. 622,
624 (S.D.N.Y. 1991) (reviewing labor arbitration proceedings to determine whether [i]n the

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correct, then the very protections the LMRA affords labor arbitrations would be undermined;

parties to CBAsboth management and laborwould have fewer protections from biased and

fundamentally unfair arbitral processes than parties to non-labor arbitrations have under the

FAA.

As Your Honor has found, federal labor policy is on all fours with this analysis:

[Section 301] jurisdiction includes actions to vacate or confirm arbitration awards

under collective bargaining agreements. See Burns Intl Sec. Servs., Inc. v. Intl
Union, United Plant Guard Workers of Am., 47 F.3d 14, 16 (2d Cir. 1995). The
Supreme Court has held that Section 301 is a congressional mandate to the
federal courts to fashion a body of federal common law to be used to address
disputes arising out of labor contracts. AllisChalmers Corp. v. Lueck, 471 U.S.
202, 209 (1985) (citing Textile Workers Union of Am. v. Lincoln Mills, 353 U.S.

instant case, plaintiff received a fundamentally fair hearing under FAA 10(c)); Grinnell
Housing Dev. Fund Corp. v. Local 32B-32J, SEIU, AFL-CIO, 767 F. Supp. 63, 67 (S.D.N.Y.
1991) (test[ing] awards under FAA 10(c) to determine whether petitioner was denied a
fundamentally fair hearing and consequently suffered prejudice by exclusion of evidence); Intl
Longshoremens Assn, AFL-CIO v. West Gulf Marine Assn, 605 F. Supp. 723, 727 (S.D.N.Y.
1985) (explaining that a labor arbitrators ruling on procedural issues may be overturned under
FAA Section 10 where it had the effect of denying the parties a fundamentally fair hearing, or
was otherwise an unreasonable decision that prejudiced the rights of a party); Minkoff v.
Scranton Frocks, Inc., 181 F. Supp. 542, 547 (S.D.N.Y.), affd, 279 F.2d 115 (2d Cir. 1960)
(finding that claims under FAA Section 10 of fraudulent procurement, arbitrator misconduct, and
refusal to hear pertinent and material evidence, if properly supported, would be sufficient to
vacate the [labor arbitration] award); see also, e.g., Local 210 Warehouse & Prod. Emps.
Union, AFL-CIO v. Envtl. Servs., Inc., 221 F. Supp. 3d 306, 312-13 (E.D.N.Y. 2016) (citing
Brady II and Bell Aerospace) (The Second Circuit has consulted the Federal Arbitration Acts []
standards for vacatur to determine when vacatur is appropriate under the LMRA. Under section
10(a)(3) of the FAA, a court may vacate an award if the arbitrators were guilty of misconduct ...
in refusing to hear evidence pertinent and material to the controversy. The Second Circuit has
held that an award may be vacated under section 10(a)(3) of the FAA only if fundamental
fairness is violated.); New Yorks Health & Human Servs. Emps. Union, 1199/SEIU, AFL-CIO
v. Grossman, No. 02 Civ. 6031(SLT), 2007 WL 2907386, at *13-*14 (E.D.N.Y. Oct. 3, 2007)
(deciding motion to vacate labor arbitration award under FAA 10(a)(3) by evaluating whether
[p]etitioner was . . . deprived of a fundamentally fair arbitration proceeding or otherwise
prejudiced); Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No. 506 v. E.D.
Clapp Corp., 551 F. Supp. 570, 577-78 (N.D.N.Y. 1982), affd sub nom. Teamsters, Chauffeurs
v. Ed Clapp Corp., 742 F.2d 1441 (2d Cir. 1983) (vacating labor arbitration award under FAA
Section 10(c) because principles of fundamental fairness were violated when union was not
given the chance to present its case in full).

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448 (1957)). . . . Though the Federal Arbitration Act [] does not apply of its own
force to contracts of employment of workers engaged in foreign or interstate
commerce, courts have often consulted the FAA for guidance in labor
arbitration cases, especially given the grant of authority under the LMRA to
fashion rules of federal common law to govern suits for violations of
collective bargaining agreements. Misco, 484 U.S. at 40 n.9 (quoting 9 U.S.C.
1). The FAA creates mechanisms for enforcing arbitration awards: a judicial
decree confirming an award, an order vacating it, or an order modifying or
correcting it. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 582 (2008)
(citing 9 U.S.C. 911).

Neshgold LP v. New York Hotel & Motel Trades Council, AFL-CIO, No. 13 Civ. 2399 KPF,

2013 WL 5298332, at *3-*4 & n.4 (S.D.N.Y. Sept. 19, 2013) (emphasis added); see also Trs. of

NYC Dist. Council of Carpenters Pension Fund v. Golden Dev. & Constr. Corp., No. 17 Civ.

1051 (VSB) (JLC), 2017 WL 2876644, at *3 (S.D.N.Y. July 6, 2017), report and

recommendation adopted, 2017 WL 3309737 (Aug. 2, 2017) (invoking application of FAA in

LMRA case, post-Brady II).

Thus, there is both good reason and extensive Circuit precedent for recognizing

fundamental fairness as a valid ground for vacating labor awards when the textual protections of

the FAA are violated. See supra note 3. The NFLs contrary position is, indeed, quite wrong.

SDNY TRO at 4.

Second, the NFL raises in its Opposition, for the first time, the equally spurious argument

that vacatur under the LMRA may only be premised on an alleged breach of the CBA. Oppn at

13-14. This proposition is flatly contradicted by the legion of Second Circuit cases, cited above

(supra note 3), that apply a fundamental fairness test in LMRA cases.

Furthermore, there are a number of well-settled extra-contractual restraints on the

arbitration process (contra Oppn at 14)derived from the text of the FAAthat have always

applied to the judicial review of labor arbitration awards under the LMRA. The NFL will not

dispute, for instance, that a labor arbitration award may be vacated on account of an arbitrators

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corruption (e.g., taking a bribe) even if the parties have not negotiated for an express prohibition

on arbitrator bribes in their CBA. See, e.g., Rite Aid of New York, 2017 WL 3601240, at *2

(Second Circuit conducted FAA evident partiality analysis in review of labor arbitration where

party alleged that arbitrator may have been biased, or unduly influenced in opposing partys

favor). It is for good reason that the NFL never once before advanced this argument, which no

court anywhere has adopted.4

Finally, we reply briefly to the NFLs misleading claim that Friels arbitration testimony

establishes that the Commissioner was aware of Roberts concerns prior to making his

disciplinary determination. Oppn at 15. The NFLs quotation snippet conspicuously ignores

Friels inconsistent and incoherent testimony on this subject. See EDTX PI Order at *9 n.9. For

example, within the space of a few minutes of cross-examination, Friel testified every which way

but Sunday about what the Commissioner was told: Thats not to say that [Roberts] views

were not communicated to [the Commissioner] in some other fashion. I dont know the answer

to that. Ex. C, Arb. Hrg Tr. (Aug. 30) 322:10-12; see also id. 322:15-17 (Friel: I dont know

if [Roberts views] were or they werent [communicated to the Commissioner] Im just saying

thats certainly possible.), 324:8-15 (Q. Did you convey to [the Commissioner] specifically

4
Even if the LMRA did require allegations of CBA breaches as the basis for vacatur, there
would be no doubt about the existence of CBA breaches here. Article 46 of the CBA requires
that the NFLPA . . . have the right to present, by testimony or otherwise, any evidence relevant
to the hearing. Ex. A-NFLPA-58 at 209. The NFL, however, intentionally and systematically
withheld from the NFLPA and Elliott the most relevant evidencenamely, access to the only
witness who accused Elliott of wrongdoing; access to Commissioner Goodell to determine
whether he took into account that his lead investigator Roberts had concluded there was no
credible evidence to support discipline; and the NFLs orchestrated effort to conceal these facts
from the NFLs independent reviewers and from the arbitrator. See, e.g., EDTX PI Order at *4
(Thus, the Court finds, the NFL further sought to ensure that the NFLPA and Elliott would
never find out about Robertss opinions by arguing that her testimony would be cumulative of
Friels and unnecessary in the arbitration.). Judge Mazzant has already found that both the NFL
and Arbitrator Henderson breached the CBA. See id. at *4, *5.

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that Ms. Roberts had expressed the view that the corroborating evidence was insufficient to

proceed? Was that stated to the Commissioner? A. I dont recall whether it was stated in those

words. Q. Okay. In any words? A. I dont recall.).

It was this varying testimonyby an experienced attorney no lessthat led Judge

Mazzant to conclude that the arbitral record was less than convinc[ing] that the Commissioner

was aware of Roberts conclusion that the accusers claims against Elliott were incredible,

uncorroborated, and insufficient to impose any discipline. EDTX PI Order at *9; see also Fifth

Circuit Order at *9 (Graves, J., dissenting) (The revelation of Roberts exclusion suggests that

Goodell was not fully informed before making his decision about the appropriate punishment.).

Judge Crotty likewise found that Defendant was also denied the opportunity to question NFL

Commissioner Goodell regarding whether he was aware that the accuser of domestic violence

was not credible. SDNY TRO at 3.

In sum, as all of the federal judges to consider the merits of Elliotts vacatur claim have

found, there are at least serious questions presented by the NFLPA as fair grounds for litigating

whether the Award here should be vacated for depriving the NFLPA and Elliott of pertinent and

material evidenceincluding the testimony of the lone accuser whom the NFLs own lead

investigator found to be incredible and bereft of corroborating evidencerendering the

arbitration process fundamentally unfair.

CONCLUSION

For all of the reasons set forth above, and in Defendants Motion, the NFLPA

respectfully requests that the Court convert the extant TRO into a preliminary injunction

prohibiting the NFL from suspending Elliott until the parties competing claims and

counterclaims for confirmation and vacatur are finally decided on the merits.

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 Case 1:17-cv-06761-KPF Document 45 Filed 10/25/17 Page 16 of 17

Dated: October 25, 2017 By: s/Jeffrey L. Kessler

Jeffrey L. Kessler
David L. Greenspan
Jonathan J. Amoona
Angela A. Smedley
Isabelle Mercier-Dalphond
WINSTON & STRAWN LLP
200 Park Avenue
New York, New York 10166
Tel: (212) 294-6700
Fax: (212) 294-4700
jkessler@winston.com
dgreenspan@winston.com
jamoona@winston.com
asmedley@winston.com
imercier@winston.com

Counsel for the National Football League

Players Association and Ezekiel Elliott

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 Case 1:17-cv-06761-KPF Document 45 Filed 10/25/17 Page 17 of 17

CERTIFICATE OF SERVICE

I, Jeffrey L. Kessler, hereby certify that on October 25, 2017, I caused a copy of the

foregoing Memorandum of Law in Further Support of the NFLPAs Motion for Preliminary

Injunction to be served upon the counsel for defendant named below by ECF and electronic mail:

Daniel L. Nash
Akin Gump Strauss Hauer & Feld LLP
1333 New Hampshire Avenue, N.W.
Washington, DC 20036

Dated: October 25, 2017

/s/ Jeffrey L. Kessler

Jeffrey L. Kessler

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