Withholding Evidence In Sports Labor Disputes: What esports can learn from Brady and Elliott

ArticleQuestions of Fundamental Fairness Must Be Addressed
By Brendan Dolan and Aalok Sharma

For the uninitiated, esports consists of competitive leagues tied to video gaming, and is one of the fastest growing entertainment markets. While some chuckle at the growth of esports, others are taking notice of the industry's growing prowess. This year's Intel Extreme Master's Championship in Poland showed the strength of the current esports market - with almost 46 million people watching the championship online. Advertisers and others are capitalizing on the upward trend of the esports marketplace. However, significant legal challenges continue to hamper the industry. Namely, many esports leagues are without a collective bargaining agreement between players, game publishers and team owners. As a result, the leagues and team owners have no mechanism to discipline players for bad behavior. Without some ability to enact player discipline, many advertisers have decided to withhold their brand from the growing marketplace.

The esports industry can learn much from the current iteration of the NFL's collective agreement in shaping its own agreement(s). In particular, Article 46 of the recent collective bargaining between the NFL and the National Football League Players Association (NFLPA) has generated significant controversy. Article 46 allows for the NFL to impose some level of discipline on players for conduct "detrimental to the integrity of, or public confidence in, the game of professional football." The vague wording of this provision has given the NFL broad authority to discipline players for various offenses. Moreover, Article 46 does not describe any procedural protections for players. As a result, the NFL's ambiguous disciplinary process invites judicial scrutiny.

In 2015, New England Patriots quarterback Tom Brady was accused of participating in a scheme to purposefully deflate footballs. See Nat'l Football League Mgmt Council v. Nat'l Football League Players Ass'n, 820 F.3d 527 (2d Cir. 2016) (hereinafter "Brady"). In Brady, the NFL hired a law firm to conduct an investigation to determine the veracity of the allegations against Brady. At the conclusion of its investigation, the firm produced a report that supported the conclusion that Brady knew and/or participated in the scheme to deflate footballs. Brady sought the investigative notes and other documents that formed the basis of the law firm's report. The NFL denied Brady access to those notes and other evidence. At the conclusion of its investigation, Brady was suspended by the NFL. Brady sought an appeal before an arbitrator to contest his suspension. Again, at the arbitration hearing, Brady made a request for notes and evidence that formed the basis of the investigative report. The arbitrator denied Brady the notes because Article 46 did not afford players the opportunity for cross-examination. The arbitrator affirmed the suspension of Tom Brady. As a result, Tom Brady sought judicial intervention arguing the NFL's process under Article 46 and the Labor Management Relations Act (LMRA) was fundamentally unfair.

The Second Circuit determined that neither Article 46 nor the LMRA afforded Brady an opportunity for cross examination. Instead the Second Circuit stated:

In making these findings, the Commissioner was, at the very least, "arguably construing or applying the contract", and he reasonably concluded that he would not require the production of attorney work product he had not relied on, or even seen. Had the parties wished to allow for more expansive discovery, they could have bargained for that right.They did not, and there is simply no fundamental unfairness in affording the parties precisely what they agreed on.

Brady, 820 F.3d at 547.

Similar to Brady, Article 46 recently came under judicial scrutiny again in the Fifth Circuit. In 2016, allegations arose that star Dallas Cowboys running back Ezekiel Elliott assaulted a woman with whom he resided with in Ohio. The district attorney and the police conducted a criminal investigation. The result of that investigation found conflicting testimony and a lack of credible evidence. As a result, there were no criminal charges filed against Elliott. Nonetheless, the NFL conducted its own investigation to determine whether there was evidence of domestic abuse. During, the course of the investigation, the NFL utilized an investigator, Kia Roberts, who interviewed the accuser and compiled a report. At the conclusion of its investigation, the NFL suspended Elliott for six games. Elliott appealed to an arbitrator and requested cross-examination of the accuser, and Roberts' investigative notes. During the arbitration, Elliott's counsel learned that Roberts found the accuser's testimony inconsistent and had a recommendation that Elliott should not be suspended. Nonetheless, the arbitrator affirmed Elliott's suspension and Elliott sought judicial review in the courts. The district court agreed that Elliott's arbitration was fundamentally unfair. In particular, the district court noted that the arbitrator's did not give Elliott an opportunity to present evidence and did not give Elliott the opportunity to obtain relevant documentary evidence needed to contest the allegations.1 As a result, the Elliott court issued a stay and temporary restraining order and allowed Elliott to play during the season.

The NFL disputes in Elliott and Brady offer some guidance to the esports league. In particular, esports must determine what kind of discipline can be afforded to a sole arbitrator as opposed to an arbitration panel. Under Article 46 of the NFL's collective bargaining agreement, the Commissioner of the NFL is afforded wide latitude. This type of unbridled authority frequently is litigated in the judicial system and court of public opinion. The esports leagues must answer many questions in order to craft an effective discipline policy. First, it must determine to what extent a disciplined player will be afforded the opportunity for cross examination. Next, does the subject matter of the complaint mean a different procedure (i.e., drug abuse as opposed to domestic abuse)? And finally, should the collective bargaining agreement address what types of experts are allowable and what qualifies them as an expert? These are all issues that the esports leagues should consider. Fortunately, the NFL has created some foundation to generate discussion on this seemingly inevitable point of contention and negotiation between esports leagues, team owners and their players.

1 The Fifth Circuit reversed the Elliot decision on the basis of subject matter jurisdiction. The Fifth Circuit ruled that Elliot was required to exhaust the administrative process under the collective bargaining agreement. Elliot filed his suit in district court prior to the arbitrator's ruling.

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