3. Governing law requires that the Commissioner Arbitration Award be vacated in its entirety for each one of the identified legal defects: disregard for the “essence of the CBA” and industrial due process, evident arbitrator partiality, and lack of arbitral jurisdiction.
And, while this article does not set out to argue each point in the respective cases, it does serve as a basis upon which to evaluate the claims of Ginsberg and the NFLPA.
What is industrial due process (IDP) and what elements must the NFL follow?
The best discussion on point I could find was a paper presented in 2007 by Richard Kaspari and Kathryn Engdahl which was presented at the American Bar Association Section of Labor & Employment Law’s Annual CLE Conference entitled “Analysis of Investigation, Evidence, Communication and Implementation: Due Process Rights in Investigations.”
The following are largely extracts from the paper. (See links to documents at the end of this article).
The principles of due process have long been established for employees represented by unions. Due process upholds the rights of the accused in a workplace investigation.
These rights have been in place in union workplaces through labor arbitration for years, and there is case law on the matter. The Saints lawsuits exemplify the belief that the NLF has not adhered to good IDP practices.
Labor arbitrators have recognized at least five elements of this industrial due process: (1) notice to the accused of the specific accusations; (2) an opportunity for the accused to respond to the accusations before determination of discipline; (3) a fair investigation; (4) timely employer action; and (5) no double jeopardy.