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

Mike Florio

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.