United States: Neutral Arbitrators In Sports: What Makes It Fair?

"Neutrality has been defined as a state of mind, a certain distance that the arbitrator establishes vis-a-vis his or her legal, political and religious background." It is not a concept that it necessarily grounded in arbitration laws or rules. "Impartiality," on the other hand, "has been defined as the aptitude of the arbitrator to be free of bias, predisposition or affinities interfering with the conduct of his mission" ("The Arbitrator As A Neutral Third Party," by Caroline Verbruggen).

I began thinking of these definitions because recently, at the annual Sports Lawyers Association meeting in Baltimore, there was a panel discussion on the grievance and arbitration systems employed by Major League Baseball, the National Football League and the National Hockey League and the role of the arbitrator within all those systems.

In particular, the discussion revolved around NFL Commissioner Roger Goodell's role as an arbitrator and whether he or one of his designees should hear disciplinary matters. (Full disclosure: I have served as one of his designees for conduct and substance cases.) Can a commissioner really be a fair and neutral arbitrator of these types of disputes? At the core of this issue is the fact that commissioners are hired and employed by team owners and therefore, in the minds of critics, are predisposed to rule in the interest of an owner and against the interest of the player (or other employee who by reason of contract has agreed to let the commissioner be the arbiter of certain disputes).

Although Goodell's role is the one getting most of the attention, he is not the only and clearly not the first commissioner to have the power to decide disputes or dole out discipline to players and owners. The most famous, if not the first, was Judge Kenesaw Mountain Landis, who after serving for 15 years as a federal judge, was made commissioner of baseball in 1920 by the owners. He served as the autonomous head of all of baseball and was imbued with vast powers, which he unquestionably exercised when he suspended the White Sox players for gambling on baseball despite their acquittal in a court of law.

Pete Rozelle, the longtime commissioner of the NFL during the '60s, '70s and '80s, used one of his first acts as commissioner to suspended Detroit's Alex Karras and Green Bay's Paul Hornug for gambling on football games. The NBA's David Stern and MLB's Bud Selig have as well exercised disciplinary powers against players and owners in their respective sports.

Their power to do so has been codified in the collective bargaining agreements, constitutions and bylaws, and individual contracts between the clubs and employees. The NFL, NHL, NBA and MLB also employ third-party arbitrators for disputes — attorneys and mediators who are jointly agreed upon by the players association and their respective leagues. But each commissioner has retained the broadest power to "act in the best interest of the game."

The NFL system has come under the most severe criticism because of the perception that Goodell acts as judge and jury on personal conduct matters, and, until recently, on drug cases. They also charge that he is responsible for hearing any appeal from the discipline he issues. However, Goodell does have the power to, and has, designated hearing officers to consider appeals if the aggrieved employee wants to challenge his decision.

Missouri Supreme Court decision

Goodell's power to decide disputes involving the interest of a team and a nonplayer has also recently been challenged — not by the union, but by lawyers representing team employees. The case, Hewitt v. Kerr, stemmed from the St. Louis Rams moving to compel arbitration when Todd Hewitt, the team's equipment manager, filed suit against the team for his firing. In a decision issued in April 2015, the Missouri Supreme Court decided the arbitration provision of Hewitt's employment contract, which he had executed for almost all of his 40 years of employment, was unconscionable and therefore, unenforceable.

In a highly fractured decision featuring three concurrences and four dissents, the court found that arbitration was a reasonable and preferred method for resolving industry disputes, but that the NFL commissioner, as the sole arbitrator with unfettered discretion and as an employee of the team owners, was not sufficiently "neutral" enough to protect Hewitt's right to have a fair hearing. The high court directed the trial court to issue a new order compelling arbitration with a neutral arbitrator, not the commissioner.

While the Missouri Supreme Court's decision will presumably be limited to employment disputes involving Missouri-based teams (the Rams and the Kansas City Chiefs), it's certainly worth monitoring for future ramifications. Those within the NFL have also viewed the decision with a good amount of surprise and skepticism. Nonplayer employees of the NFL have been subject to the arbitration provisions of the NFL for decades without many major problems, and all contracts filed with the league must include that provision. In fact, historically, NFL commissioners, including Goodell, were known to be very employee-friendly; an aggrieved nonplayer employee more often than not came out on the plus side in those types of disputes.

Alternatives to the Commissioner?

Still, if the argument stands that a commissioner and his or her designee cannot be neutral and impartial, then what are the alternatives for sports leagues? The baseball industry argues that its procedures offer a more fair system. Under its dispute resolution process, an arbitrator is selected by both the league and the union; the arbitrator is therefore not beholden to any one side, and can be replaced by either side.

Yet some observers of the MLB system have disagreed with this conclusion. They point to the MLB replacing arbitrator Shyam Das after he overturned the suspension of Brewers star Ryan Braun in February 2012 for alleged testosterone use. Patrick Rishe, a professor at Webster University in St. Louis and contributor to Forbes Magazine, wrote when analyzing MLB arbitration in the Braun matter:

But the biggest joke of all is that the arbitration process is anything but neutral, especially in light of Ryan Bruan's suspension. Shyam Das, the MLB arbitrator who lifted Braun's suspension in early 2012 was fired by Major League Baseball shortly thereafter. Coincidence? Don't think so.

Rishe further argued that Das' replacement Frederic Horowitz, who upheld the majority of Alex Rodriquez's suspension (reduced from 211 games to 162 games) did so because "after all he wants to keep his job, too," which makes it "nearly impossible to accept that Mr. Horowitz's ruling is truly impartial."

The essence of all of these criticisms is that arbitrators will act in their own best interests. Lawyers suspect this, too. It is one of the reasons why arbitration lawyers frequently study the arbitrator's most recent decision — the arbitrator may be very mindful of his last decision when rendering her next one. Consequently, critics argue, there may be fewer differences in the perceived impartiality of Goddell and an arbitrator who is hired by both sides but can be fired by either side.

The real issue is not really who selects the arbitrator or who pays him, but whether the arbitrator can view the facts of the case, and apply the rules that govern the case consistently and fairly. As the MLB arbitrator Das said in an interview with Newsday's Steve Marcus, he "considers everything" when reaching his decisions because in "most cases, there aren't any law books to run to. The law is what's in the contract."

Nevertheless, the perception of neutrality or impartiality will continue to be debated in these arbitration cases so long as there is a winner or loser and the arbitrator can be replaced if one of the parties does not like his decision. Perhaps the solution is to provide the arbitrator with a term agreement that does not allow replacement but for a defined cause of termination. This might provide some limited security and remove the necessity of protecting one's self interest — keeping the job. Furthermore, arbitrators are often charged with issuing written opinions, a requirement that forces an arbitrator to articulate the rationale of his decision and gives some basis to evaluate if a decision is arbitrary and capricious. These safeguards may be helpful, but the efficacy of arbitration rests primarily on the integrity of the decision-maker — not who hires him.

This article originally appeared on Law360.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions