1. #6: Arbitral review of discipline for player misbehavior

2. Commisioner’s Authority Commissioner’s rule is more like employer than a neutral Key union victory was appeal to impartial arbitrator Different CBAs give Commissioner varying power to rule on misbehavior issues Note (Howe) suggestion that Commissioner must meet higher standard than ordinary employers, because workers can’t go elsewhere

3. Review of Discipline: NFL Commissioner discipline unreviewable Art XI of CBA: Commissioner hears final appeals re discipline for conduct detrimental to “the integrity, or public confidence in, the game of professional football”

4. Review of Discipline: MLB Unreviewable for on-field conduct Off-field conduct generally subject to just cause review Commissioner reserves power to remove discipline affecting best interests from impartial arbitrator –Union then has right to immediately strike –Power has never been invoked

5. Review of Discipline: NBA Unreviewable for minor punishment General rule is just cause standard Where conduct concerns “the preservation of the integrity of, or the maintenance of public confidence in, the game of basketball”, review is based on arbitrary & capricious standard

6. Club Discipline Relevant contract provisions –Just cause for clubs (MLB Art XII, Pt A) –UPC para 7(b)(1): good sportsmanship Subject to arbitration Course of Performance matters a lot Parties can reverse decisions: e.g. Art VI §10 of NBA CBA, reversing Sprewell on question of two penalties Standard Player Contract permits termination

7. Just Cause standard Substantive components: –Progressive discipline –Mitigating factors –Consistent or proportionate with prior penalties for comparable acts Procedurally: process must be “fundamentally fair”

8. Eagles and Owens Did the Eagles have just cause to suspend Owens without pay for four games (25% of his salary)? Did the club have the power to refuse to let him play or practice with pay for the rest of the season? Is there any limit to club’s discretion? Suppose ardent Republican Cowboys’ owner Jerry Jones orders a player benched for contributing to President Obama’s reelection?

9. Owens /2 Consider a contract-law alternative to discipline for solving these problems: –allow the Eagles to terminate contract on grounds of breach –allow Eagles to pay another club for replacement player (assuming new player’s salary fits within cap) –Eagles sue TO for difference

10. Discipline for Recreational Drugs Suppose several residents of Akron write to NBA Commissioner David Stern alleging that LeBron James and Duane Wade were seen snorting cocaine at a local bar and then leak their allegation to the newspaper; may he order them to be drug tested?

11. /2 Rec Drugs Suppose 2 federal DEA agents write to Stern that they witnessed the same event?

12. Seeking Treatment In 2006, NBA announced that Hornets F Chris Anderson was dismissed and disqualified for violating drug policy –What did he do? –When can he play again? –Suppose he tells a PA official that he wants to go into rehab? –Suppose he checked himself into the Malibu rehab center used by Lindsay Lohan?

13. Drug testing: Williams Do you agree with Jeff Pash that strict liability rule applies, even though league knew and failed to inform? –Suppose players had called NFL hotline, asked if StarCaps was ok, and were simply told that the NFL discourages any dietary supplements because (i) they are bad for you and (ii) not subject to FDA regulation so labeling unreliable? Why should the court uphold the “arbitrator’s award” when the arbitrator is the employer’s lawyer?

14. /2 Williams Suppose PA adopted a state law barring discipline for positive drug tests with strict liability, and GA has no such rule; Troy Polamalu and Matt Ryan test positive for the exact same banned substance –Does it make sense that for Sunday’s Steelers-Falcons game the NFL cannot suspend Palamalu but can suspend Ryan? –Is the Cramer case [155] distinguishable?

15. Contracts and Drug Abuse While on the Pittsburgh Pirates, Dave Parker admittedly abused cocaine and his batting performance dropped Under what theories can the Pirates recover money from Parker? DAVE PARKER STATISTICS YEARH2BHRRBIBA 7517235251010.308 761682813900.313 772154421880.338 7819432301170.334 791934525940.31 801533117790.295 8162149480.258 8266196290.27 831542912690.279 841732816940.285 8519842341250.312 8617431 1160.273 871492826910.253