NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, agent of on its own behalf and on behalf of Ezekiel Elliott v. NATIONAL FOOTBALL LEAGUE; NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL
No. 17-40936
United States Court of Appeals, Fifth Circuit
October 12, 2017
Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:17-CV-615
PER CURIAM:*
On August 31, 2017, the National Football League Players Association (NFLPA) filed a complaint in the District Court for the Eastern District of Texas on behalf of Ezekiel Elliott, a running back for the Dallas Cowboys, seeking a preliminary injunction preventing enforcement of a forthcoming six-game suspension by the National Football League (NFL) and the National
On September 5, 2017, the district court held a preliminary injunction hearing. That same day, the arbitrator issued his decision upholding the NFL‘s six-game suspension of Elliott. On September 8, 2017, the district court enjoined the NFL from enforcing Elliott‘s six-game suspension. The NFL moved this court for a stay of the district court‘s injunction on September 15, 2017. We VACATE the district court‘s preliminary injunction and REMAND to the district court with instructions to dismiss the case.
The NFL contends the district court lacked subject matter jurisdiction under the Labor Management Relations Act (LMRA),
Under the LMRA, a lawsuit for violations between an employer and a labor organization must satisfy the following three elements: “(1) a claim of violation of (2) a contract (3) between an employer and a labor organization.” Carpenters Local Union No. 1846 of United Bhd. of Carpenters & Joiners of Am., AFL-CIO v. Pratt-Farnsworth, 690 F.2d 489, 500 (5th Cir. 1982);
It has long been established that “federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.” Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965). “If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement.” Id. at 653. The “grievance and arbitration procedures are part and parcel of the ongoing process of collective bargaining.” United Paperworkers Int‘l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987).
Outside of limited circumstances, the failure to “fully exhaust[]” contracted for “grievance procedures” places an employee‘s claim for breach of a collective bargaining agreement beyond “judicial review.” Vaca v. Sipes, 386 U.S. 171, 184-85 (1967) (discussing situations where an “employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures“). While courts have jurisdiction to enforce collective bargaining contracts, “where the contract provides grievance and arbitration procedures, those procedures must first be exhausted and courts must order resort to the private settlement mechanisms without dealing with the merits of the dispute.” Misco, 484 U.S. at 37. Our circuit holds that federal courts lack subject matter jurisdiction “to decide cases
The NFLPA argues, following the Supreme Court‘s decision in Arbaugh v. Y&H Corp., 546 U.S. 500, 510-11 (2006), that Meredith is no longer good law and exhaustion should not be considered as an issue of subject matter jurisdiction. Arbaugh addressed when the term “jurisdiction” is properly utilized. Id. at 510. The Court stated at times the term had been applied to procedural requirements that “are not properly typed ‘jurisdictional.‘” Id. Particularly in the “subject-matter jurisdiction/ingredient-of-claim-for-relief dichotomy,” the Court stated that it, among other courts, “ha[d] been less than meticulous” in the use of the label. Id. At issue in Arbaugh was whether the threshold number of employees for the application of Title VII to an employee‘s claim was an element of a claim for relief or a jurisdictional issue. Id. at 516. The Court held that because Congress had not ranked the statutory limitation on coverage in Title VII as jurisdictional, “courts should treat the restriction as nonjurisdictional.” Id. The Court further clarified in Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011), “that a rule should not be referred to as jurisdictional unless it governs a court‘s adjudicatory capacity, that is, its subject-matter or personal jurisdiction.” Claims-processing rules, which are rules “requiring that a party take certain procedural steps at certain specified times,” are not jurisdictional—even if mandatory—unless Congress clearly indicated the rule was “jurisdictional.” Id. at 435-46. However, the Court held there were no “magic words” Congress needed to invoke and if there was “a long line of this Court‘s decisions left undisturbed by Congress” treating a requirement as jurisdictional, the Court would “presume that Congress intended to follow that course.” Id. at 436.
The NFLPA‘s lawsuit on Elliott‘s behalf was premature.5 The procedures provided for in the collective bargaining agreement between the
We next turn to whether Elliott‘s failure to exhaust his remedies was excused. There are three exceptions to the exhaustion requirement: “(1) the union wrongfully refuses to process the employee‘s grievance, thus violating its duty of fair representation; (2) the employer‘s conduct amounts to a repudiation of the remedial procedures specified in the contract; or (3) exhaustion of contractual remedies would be futile because the aggrieved employee would have to submit his claim to a group which is in large part chosen by the employer and union against whom his real complaint is made.”
The NFLPA only argues the repudiation exception to the exhaustion requirements applies. An allegation that an employer has repudiated the grievance process is not substantiated merely by its “refusal to accept an employee‘s position with respect to a grievance.”7 Id.; see also Meredith, 209
When the NFLPA filed the complaint on August 31, 2017, the arbitrator had not yet issued his decision. Although the district court issued the injunction on September 8, 2017, and the arbitrator had previously issued his decision on September 5, 2017, jurisdiction depends on the facts as they exist when the complaint was filed. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1982). The district court, therefore, lacked subject matter jurisdiction when it issued the preliminary injunction.8
This is a case about undisclosed information, uninformed decisions, and an arguably unfair process in determining whether Dallas Cowboys running back Ezekiel Elliott should be punished for allegations of domestic violence made by an accuser who was found not credible by the NFL‘s lead investigator, who was then excluded from meetings with NFL Commissioner Roger Goodell. Because I conclude that the district court had subject matter jurisdiction, I respectfully dissent.
In 2016, allegations of domestic violence were made against Elliott in Columbus, Ohio. Columbus authorities investigated the allegations and declined to arrest or prosecute Elliott based on conflicting information and insufficient evidence.
Pursuant to its Personal Conduct Policy, the National Football League (NFL) launched a year-long investigation.1 Kia Roberts,2 NFL Director of Investigations, and Lisa Friel, NFL Senior Vice President and Special Counsel for Investigations, conducted the investigation and prepared a report. Roberts is the only investigator who participated in all 22 of the witness interviews, including those with Elliott‘s accuser, who was interviewed six different times.3 Friel was not present for any of the witness interviews. Roberts, not Friel, was then excluded from the meetings with Goodell and his outside advisors to discuss the allegations against Elliott and whether Elliott should receive any punishment. Goodell is the person solely responsible, under the
On August 11, 2017, the NFL sent Elliott a letter informing him of Goodell‘s decision to suspend him for six games. The NFLPA appealed on behalf of Elliott pursuant to the CBA. Goodell assigned the appeal to Harold Henderson.
During the arbitration proceedings, the NFLPA sought to compel the testimony of Roberts and the accuser. They also asked that the NFL provide the investigative notes. Again, Roberts was the only investigator to interview all witnesses, including the accuser, who is the sole witness to any alleged domestic violence. Two of the accuser‘s six interviews were transcribed and are in the record. Roberts took notes on the other four interviews, but the NFL did not turn those notes over to the NFLPA. Additionally, the NFL objected to the request for Roberts to testify on the basis that her testimony would be “cumulative and unnecessary” in light of Friel‘s attendance at the hearing. Importantly, Roberts had formed the opinion that the accuser was not credible.
Henderson granted the motion to compel as to Roberts, but denied the requested relief as to the accuser and the investigative notes. During arbitration, it was revealed that Goodell had met with Friel and other advisors, outside the presence of Roberts, to decide Elliott‘s punishment. The NFLPA then sought to compel Goodell‘s testimony to determine what information he had been provided before he decided to impose the suspension. Henderson denied the request. The three-day arbitration hearing ended on August 31, 2017, the record was closed, and Henderson stated that he would announce his decision shortly thereafter.
The following day, September 1, 2017, the NFLPA sued the NFL on behalf of Elliott in the Eastern District of Texas seeking vacatur of the pending
The Texas district court delayed ruling on the NFLPA‘s emergency motion and called for additional briefing due by Wednesday, September 6, 2017, on jurisdiction and the issuance of the arbitrator‘s decision. On September 8, 2017, the district court entered a Memorandum Opinion and Order granting the NFLPA‘s motion and enjoined the suspension of Elliott pending the court‘s final ruling on the petition.
On September 11, 2017, the NFL filed a notice of appeal and an emergency motion to stay the injunction in the district court. The NFL acknowledged the existence and requirements of Rule 8 of the Federal Rules of Appellate Procedure, but included the following statement: “Absent an order from this Court granting a stay, Respondents intend to seek a stay from the Fifth Circuit tomorrow morning.” Also on September 11, the district court entered an order for expedited briefing on the NFL‘s emergency motion for stay. The NFL‘s reply was due September 13 at 5 p.m. and the NFLPA‘s response was due September 15 at 5 p.m. Both parties filed their briefs on September 13.
Rather than wait for the district court to rule on its motion, the NFL then filed on September 15, 2017, an Emergency Motion for Stay Pending Appeal with this court seeking a ruling by September 19 and no later than September 26. The district court denied the NFL‘s stay on September 18. This court allowed both deadlines to pass, as there is no emergency. However, panel
The majority now concludes that the district court lacked subject matter jurisdiction when it issued the preliminary injunction, vacates, and remands with instructions to dismiss. I disagree and conclude that the district court indeed had subject matter jurisdiction.4 I agree with the majority that this court reviews questions of subject matter jurisdiction de novo. But I disagree with the majority‘s repeated suggestion that we are here on the appeal of the district court‘s preliminary injunction as opposed to the NFL‘s motion for stay.
The majority adopts the NFL‘s position that the district court lacked subject matter jurisdiction because the NFLPA filed the action prematurely without having exhausted contractual procedures under the CBA, i.e., awaiting the issuance of the arbitrator‘s written decision. Specifically, they assert that exhaustion is required under the Labor Management Relations Act (LMRA) and that exhaustion means the final decision of the arbitrator must have issued. However, neither the NFL nor the majority cites a single case where a court held that the petitioner failed to exhaust in a situation like this. Instead, both cite various cases which are dissimilar and ignore cases which do not support a conclusion of lack of subject matter jurisdiction.
The district court granted the preliminary injunction, saying: “Based upon the preliminary injunction standard, the Court finds, that Elliott did not receive a fundamentally fair hearing, necessitating the Court grant the request for preliminary injunction.” The court concluded that it had jurisdiction under section 301 of the LMRA. As the court said in its September 8 order granting the stay:
For a federal court to maintain jurisdiction over the alleged
breach of a collective bargaining agreement, an LMRA “claim must satisfy three requirements: (1) a claim of a violation of (2) a contract (3) between an employer and a labor organization.” Carpenters Local Union 1846 of United Bhd. of Carpenters & Joiners of Am., AFL-CIO v. Pratt-Farnsworth, Inc., 690 F.2d 489, 500 (5th Cir. 1982). As long as these three requirements are met an individual can sue for breach of the collective bargaining agreement. DelCostello v. Int‘l Bhd. of Teamsters, 462 U.S. 151, 163 (1983) (citing Smith v. Evening News Ass‘n, 371 U.S. 195 (1962)). Here, the NFLPA alleges a violation of a contract, the CBA. The CBA was entered into by the NFLPA, a labor organization, and the NFL, an employer.
Further, as the NFL conceded at oral argument, there is no explicit requirement of exhaustion in the LMRA. The LMRA states:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
The NFLPA asserts that the district court correctly exercised jurisdiction under the LMRA and cites Houston Refining, L.P. v. United Steel, Paper & Forestry, Rubber, Mfg., 765 F.3d 396 (5th Cir. 2014), for the proposition that “an ‘alleged violation’ [of a CBA] satisfies section 301(a)‘s jurisdictional requirement.” Id. at 403 (citing Textron Lycoming Reciprocating Engine Div., AVCO Corp. v. United Auto., Aerospace & Agric. Implement Workers of Am., Int‘l Union, 523 U.S. 653, 658 (1998)). Further, “the alleged violation of a labor contract is both necessary and sufficient to invoke federal subject-matter jurisdiction under section 301(a) of the Labor Management Relations Act,
Additionally, the Supreme Court in Textron made clear that: “‘Suits for violation of contracts’ under § 301(a) are not suits that claim a contract is invalid, but suits that claim a contract has been violated.” Textron, 523 U.S. at 657. The NFLPA asserts that the NFL violated the CBA. That alleged violation is all that is required to allow the district court to exercise jurisdiction.
Moreover, as the majority concedes, the controlling authority explicitly states that an employee is only required to ”attempt use of the contract grievance procedure.” Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965) (emphasis added). With regard to the majority‘s quote from Maddox regarding the exclusivity of a grievance procedure, in context, that quote is actually referencing “[a] contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit . . . .” Id. at 653. There was no complete sidestep of available grievance procedures here. Instead, the NFLPA clearly attempted to use the contract grievance procedure set out in the CBA, as acknowledged by the majority. The NFLPA filed a lawsuit only after discovery of the NFL‘s alleged violations of the CBA and the adverse rulings which prevented exploration of the extent of the alleged violations.
Regardless, in Rabalais v. Dresser Industries, Inc., 566 F.2d 518 (5th Cir. 1978), this court acknowledged the following exceptions to exhaustion:
(1) the union wrongfully refuses to process the employee‘s grievance, thus violating its duty of fair representation, Vaca v. Sipes, supra ; (2) the employer‘s conduct amounts to a repudiation of the remedial procedures specified in the contract, id.; Boone v. Armstrong Cork Co., 384 F.2d 285 (5th Cir. 1967); or (3) exhaustion of contractual remedies would be futile because the aggrieved employee would have to submit his claim to a group “which is in large part chosen by the (employer and union) against whom (his) real complaint is made.” Glover v. St. Louis-S.F. Ry. Co., 393 U.S. 324, 330 (1969). See generally Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870 (3d Cir. 1972).
Id. at 519. See also Maddox, 379 U.S. at 650; and Vaca v. Sipes, 386 U.S. 171, 184-185 (1967) (discussed more fully herein). This court has also said that an individual may attack an arbitration award where the grievance procedure was “substantially inadequate.” Harris v. Chem. Leaman Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir. 1971).
The Rabalais court noted that “[a]n employer can obviously take a stance contrary to that of the employee during the grievance process without being deemed to have repudiated that process.” Rabalais, 566 F.2d at 520. However, it is undisputed that failure to comply with the terms or procedures of the CBA is a breach.
These exceptions establish that, “full exhaustion is not inevitably required by a court before it will exercise jurisdiction under §301.” Ramirez-Lebron v. Int‘l Shipping Agency, Inc., 593 F.3d 124, 132 (1st Cir. 2010) (quoting Hayes v. New England Millwork Distribs., Inc., 602 F.2d 15, 18 (1st Cir. 1979)). Further, any exhaustion requirement is not “unlimited,” particularly where “circumstances have impugned the integrity of the arbitration process.” Id. at 132. In Ramirez-Lebron, the First Circuit said that “[t]his appeal in the end is about the fundamental fairness of the arbitration process.” Id. at 134 (emphasis original). The court further concluded, consistent with Vaca, 386 U.S. at 185, that an employer is “estopped” from using a CBA or an arbitration
The district court here concluded that, under the second Rabalais exception above, the NFL had repudiated the required procedures set forth in the CBA. The court further found, based upon the preliminary injunction standard, that Elliott did not receive a fundamentally fair hearing.
Under Article 46 of the CBA, a player is entitled to counsel and has the right, along with the NFLPA and NFL, “to attend all hearings provided for in this Article and to present, by testimony or otherwise, any evidence relevant to the hearing.” Art. 46 § 2(b). Additionally, “the parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing.” Art. 46 at § 2(g)(i).
The NFLPA and Elliott were arguably denied the right to “present, by testimony or otherwise, any evidence relevant to the hearing.” At the hearing, the NFL attempted to keep Roberts, the only investigator to interview all witnesses, from testifying and denied access to the investigative notes and the opportunity to question the accuser. The NFL‘s arbitrator then denied access to the investigative notes. Four of the interviews with the accuser were not transcribed, but were in those notes. The arbitrator also denied the
All of these actions “impugned the integrity of the arbitration process.” See Ramirez-Lebron, 593 F.3d at 132. Thus, the NFL‘s refusal to follow those agreed upon procedures in the CBA resulted in a repudiation of the grievance procedure sufficient to vest jurisdiction in the district court. Id. at 134. See also Vaca, 386 U.S. at 185; and Rabalais, 566 F.2d at 519.
To briefly address the authority cited by the majority, I begin with Vaca, which the majority cites for the proposition that, “[o]utside of limited circumstances, the failure to ‘fully exhaust[]’ contracted for ‘grievance procedures’ places an employee‘s claim for breach of a collective bargaining agreement beyond ‘judicial review.‘” However, that is not what Vaca says. Vaca states: “However, if the wrongfully discharged employee himself resorts to the courts before the grievance procedures have been fully exhausted, the employer may well defend on the ground that the exclusive remedies provided by such a contract have not been exhausted.” Vaca, 386 U.S. at 184. Further, the court said:
However, because these contractual remedies have been devised and are often controlled by the union and the employer, they may
well prove unsatisfactory or unworkable for the individual grievant. The problem then is to determine under what circumstances the individual employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures.
Id. at 184-185. The Court went on to say: “To leave the employee remediless in such circumstances would . . . be a great injustice. We cannot believe that Congress, in conferring upon employers and unions the power to establish exclusive grievance procedures, intended to confer . . . such unlimited discretion to deprive injured employees of all remedies for breach of contract.” Id.
The Vaca Court in no way said that only the arbitrator‘s written award constitutes exhaustion and that failure to fully exhaust places a breach of contract claim outside judicial review. Moreover, Vaca cites Maddox for the proposition that “it is settled that the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement.” Vaca, 386 U.S. at 184-185 (emphasis added). The attempt to exhaust was made here and the contractual remedy proved unsatisfactory – those are the only requirements under Vaca.
The majority relies on Meredith v. Louisiana Federation of Teachers, 209 F.3d 398 (5th Cir. 2000), for the proposition that a federal court lacks jurisdiction absent exhaustion. However, the employee in Meredith failed to take the final step in the grievance procedure, i.e., “seeking to compel arbitration.” Id. at 402. Importantly, this court did not say that Meredith was required to await the arbitrator‘s written decision, but rather that she had to at least seek to compel arbitration – as is consistent with Supreme Court precedent requiring an attempt. Here, the NFLPA took the final required step in the grievance procedure and attempted arbitration. Further, in Meredith, this court concluded that the district court properly found the employer was
The majority also cites United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29 (1987). Misco involved the attempt to set aside a final arbitration award and did not involve a breach of contract or an alleged issue of exhaustion. The general statement quoted by the majority neither contradicts nor complements the other authority cited herein. However, notably, the Misco Court said: “Of course, decisions procured by the parties through fraud or through the arbitrator‘s dishonesty need not be enforced.” Id. at 38. Here, there is no claim of fraud, but, without the ability to question Goodell under these circumstances, it is likely impossible to determine whether information was intentionally withheld from him or whether he was provided false information.
Further, the cases the majority cites from the Sixth and Seventh Circuits both involved ongoing proceedings, unlike here, where the proceedings had concluded and the record was closed.
Additionally, the majority states that the “parties contracted to have an arbitrator make a final decision.” The parties also contracted to be allowed “to present, by testimony or otherwise, any evidence relevant to the hearing” and “to exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing.” Art. 46 § 2(b), (g)(i). The NFLPA alleges a breach of that contract. The record was closed and there was no chance of the arbitrator revisiting any erroneous rulings prior to the issuance of a written decision. The LMRA does not explicitly require exhaustion, the binding authority only requires an attempt, and it is undisputed that there are exceptions. Thus, the NFLPA‘s complaint in district court was not premature.