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Penn State Law professor files brief with federal appeals court

UNIVERSITY PARK, Pa. – When a dispute between the national men’s soccer team and the sport’s governing board resulted in a federal court decision that threatened decades of legal precedent, Penn State Law professor Stephen F. Ross organized a group of other professors with expertise in sports and arbitration law to file a friend-of-the-court amicus brief with the United States Court of Appeals in Chicago.

Ross and his colleagues argue that the court’s decision—in which a panel of three judges unanimously overturned a decision previously reached by an arbitrator for the two parties—ignores and imperils long-standing judicial rules that limit judges’ ability to overrule a contractual interpretation reached by the arbitrator.

“The court’s duty is not to decide whether the arbitrator erred, clearly erred, or grossly erred in interpreting the contract,” the brief reads.   The professors argue that the overriding promise that labor and management make to each other is to resolve disputes via a neutral arbitrator of their choosing, not the federal judiciary. 

By asserting the power to reverse an expert arbitrator’s judgment that a contract was “ambiguous,” finding instead that the language was “plain,” the decision “threatens to undo six decades of labor arbitration jurisprudence and substantially complicate labor relations—particularly in sports—in contravention of the clear purposes of federal labor law.”

Ross and his colleagues argue that the case between the soccer federation and players’ association should be reheard by the entire bench, rather than just the panel of three judges.

“When I read this ruling, I wanted to do something, because of its potentially damaging consequences for the future of sports law,” Ross said. “This is an issue that concerns fans as well as management and players.” 

The case at issue concerns a dispute that began in 2014, when the Soccer federation used pictures of eight players in an ad for el Jimador tequila. The players’ association alleged the ad violated the terms of the players’ collective bargaining agreements, while the federation stated it was not required to obtain advance approval from the players.

The players’ association requested arbitration and an independent arbitrator ultimately sided with the association, determining that the labor bargain was unclear on whether or not advance notice is required for advertisements using the likenesses of six or more players, and that years of submitting ads for advance union approval showed the parties’ intent.  This finding that was overturned by the Seventh Circuit.

If allowed to stand, Ross and his fellow professors argue that the holding risks “strikes and lockouts because parties who might otherwise have finalized contentious negotiations cannot agree on every jot and tittle and can no longer rely on their hand-picked arbitrator to resolve ongoing differences.”

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