As a sports fan and a fan of arbitration, I have followed with interest the ongoing battles between the NFLPA and the NFL over the consequences of their unusual arbitration process. It is no surprise to those who follow arbitration that the Fifth Circuit, ruled today that the NFLPA’s attempt to circumvent the parties’ agreed arbitration process by moving for a preliminary injunction in court was premature. As some may recall, “Arbitrator” Roger Goodell issued a six game suspension to former Buckeye great running back “Zeke” Elliott. According to the parties’ agreement, that suspension could be appealed to another arbitrator, here former NFL executive Harold Henderson. After the appeal hearing, but before Henderson issued a ruling, the NFLPA filed a motion seeking a preliminary injunction preventing enforcement of the suspension. On the same day as the preliminary injunction hearing, Henderson issued his decision, upholding the six game suspension. Three days later, the district court issued the injunction. The NFL appealed the preliminary injunction to the Fifth Circuit, which correctly ruled that the court which issued the preliminary injunction did not have subject matter jurisdiction over the complaint because the plaintiff/grievant Elliott had yet to exhaust his remedies under the collective bargaining agreement. The Fifth Circuit noted that there are some exceptions to the obligation to exhaust remedies in the grievance process governed by the CBA, but that none applied in this case.

Although there are still serious questions about the fairness of the underlying NFL arbitration process, the Fifth Circuit is right not to permit the NFLPA’s end run around the arbitration process to which they agreed. One presumes the NFLPA will now file another motion for a preliminary injunction since the adverse ruling has been made. Too bad they didn’t wait a few days for the ruling in the first place!

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