In the

SUPREME COURT OF THE

UNITED STATES OF AMERICA

NATIONAL HOCKEY LEAGUE,

Petitioner,

v.

MICHAEL SCOTT and

NATIONAL HOCKEY LEAGUE PLAYER’S ASSOCIATION,

Respondent,

ON WRIT OF CERTIORARI TO THE APPELLATE COURT OF

TULANIA

PETITIONER’S BRIEF

TEAM #19

i

QUESTIONS PRESENTED

I. WHETHER THE COURT OF APPEALS CORRECTLY HELD THAT A

NATIONAL HOCKEY LEAGUE PLAYER’S CLAIMS UNDER MINNESOTA’S

DRUG AND ALCHOL TESTING IN THE WORKPLACE ACT CHALLENGING

A SUSPENSION UNDER A COLLECTIVELY BARGAINED FOR DRUG

POLICY ARE NOT PREEMPTED BY SECTION 301 OF THE LABOR

MANAGEMENT RELATIONS ACT.

II. WHETHER THE COURT OF APPEALS CORRECTLY SET ASIDE AN

ARBITRATOR’S AWARD SANCTIONING THE NATIONAL HOCKEY

LEAGUE’S REFUSAL TO ISSUE SPECIFIC PRODUCT WARNING’S

REGARDING THE PRESENCE OF A BANNED SUBSTANCE IN A DIETARY

SUPPLEMENT BECAUSE SUCH AN AWARD VIOLATED PUBLIC POLICY.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................................... i

TABLE OF CONTENTS ............................................................................................................. ii

TABLE OF AUTHORITIES ........................................................................................................ iii

STATEMENT OF FACTS ........................................................................................................... 1

STATUTORY FRAMEWORK ..................................................................................................... 5 Drug and Alcohol Testing in the Workplace Act (DATWA) ....................................................... 5 Section 301 of the Labor Management Relations Act (LMRA) ................................................. 5

ARGUMENT ........................................................................................................................... 6 I. THE TULANIA COURT OF APPEALS INCORRECTLY HELD THAT MICHAEL SCOTT AND THE NHLPA’S CLAIM UNDER MINNESOTA’S DRUG AND ALCOHOL TESTING IN THE WORKPLACE ACT WAS NOT PREEMPTED BY SECTION 301 OF THE LABOR MANAGEMENT RELATIONS ACT. .................................6

A. Because Mr. Scott and The NHLPA’S DATWA Claim Arises From The CBA, and are Substantially AND Inexplicably Intertwined with an Interpretation of the CBA, their Claim Should be Dismissed as Preempted by the LMRA. ...................................................................................................................... 6 B. A Uniform Interpretation of the CBA and POLICY is Favored by Public Policy, and Essential to Assure the Fairness of Competition and to Preserve the NHL’S Business as a National Organization. 10

II. THE TULANIA COURT OF APPEALS DECISION TO SET ASIDE AN ARBITRATION AWARD SHOULD BE REVERSED BECAUSE THE AWARD DOES NOT IGNORE A FIDUCIARY DUTY OR VIOLATE PUBLIC POLICY. ........................................................................................................................................ 13

A. A High Standard Must Be Met For a Court to Overrule an Arbitration Award ........................... 15 b. The Arbitration Award Arises out of the NHL CBA Policy. .......................................................... 16 C. The NHL and Dr. Schrute did not owe Mr. Scott and the NHLPA a fiduciary duty to issue an ingredient specific warning about the presence of Narcotussin in SuperDope. ................................ 16 D. Mr. Scott and NHLPA Did Not Establish a Clear New York Public Policy Violation. .................... 19 E. The Collective Bargaining Agreement Explicitly Explained the Strict Liability Standard and NHL Players Should Be Held to this Standard. ............................................................................................ 21

CONCLUSION ....................................................................................................................... 22

iii

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957)………………………………..5, 11

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1958)…………………………......….6, 7, 9, 10 11

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988)……......……………………..6, 11

Liviadas v. Bradshaw, 512 U.S. 107 (1994)………………………………………………………9

United Steelworkers of America v. Rawson, 495 U.S. 362 (1990)……..…………………..……10

Healy v. Beer Inst. Inc., 491 U.S. 324 (1989)…………………………………......…………..…12

Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 74…………………..…13

United Paperworkers Int’l. Union v. Misco, Inc., 484 U.S. 29 (1987)…......……………14, 16, 21

E. Assoc. Coal Corp. v. United Mine Workers of Am., 531 U.S. 57 (2000)…..……......……16, 19

Muschany v. United States, 324 U.S. 49 (1945)………….…………..……………....……...…..19

UNITED STATES COURT OF APPEALS CASES

Williams v. Nat’l Football League, 582 F.3d 863, 873 (8th Cir. 2009)…………..…….6, 7, 11, 14

Trustees of Twin City Bricklayers Fringe Ben. Funds v. Superior Waterproofing, Inc., 450 F.3d

324 (8th Cir. 2006)…………………………………………………….…………..……7, 8, 10, 12

Bogan v. Gen. Motors Corp., 500 F.3d 828, 832 (8th Cir. 2007)……………………... …..…7, 16

Atwater v. Nat'l Football League Players Ass'n., 626 F.3d 1170 (11th Cir. 2010)………..….9, 10

Anderson v. Ford Motor Co., 803 F.2d 953 (8th Cir. 1986)…………………..………………….11

Stark v. Sandburg, Phoenix & von Gontard, P.C., 381 F.3d 793, 798 (8th Cir. 2004) ..…….….13

Med. Shoppe Int’l Inc. v. Turner Invs., Inc., 614 F.3d 485, 488 (8th Cir. 2010)……. …….....…13

Schoch v. InfoUSA, Inc. 341 F.3d 785, 788 (8th Cir. 2007)……………………………………..13

Coca-Cola Bottling Co. v. Teamsters Local Union No. 688, 959 F.2d 1438, 1440 (8th Cir.

1992)……………………………………………………………………………………………..14

Winfrey v. Simmons Food Inc., 495 F.3d 549, 551 (8th Cir. 2007)……………………………...14

Crawford Group, Inc. v. Holekamp, 543 F.3d 971, 976 (8th Cir. 2008)………………... ……...14

MidAm. Energy Co. v. Int’l Bhd. Of Elec. Workers Local 499, 345 F.3d 616 (8th Cir. 2003)…..14

iv

W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber, 461 U.S.

757…………………………………………...……………………………….......15, 16, 19, 20, 21

Walton-Floyd v. United States Olympic Comm., 965 S.W.2d 35 (Tex. App. 1998)………….....17

Delta Air Lines, Inc. v. Air Line Pilots Asso., International, 861 F.2d 665………….............19, 20

Denver & Rio Grande W.R.R. v. Union Pac. R.R., 119 F.3d 847, 850 (10th Cir. 1997)………...20

Kennecott Utah Copper Corp v. Becker, 195 F.3d 1201 (1999)………………………...………20

Iowa Elec. Light & Power Co. v. Local Union 204 of the Int’l Bhd. Of Elec. Workers, 834 F.2d

1424, 1426 (8th Cir. 1987)……………………………………………. ………….……..…..20, 21

UNITED STATES DISTRICT COURT CASES

Stringer v. Nat'l Football League, 474 F. Supp. 2d 894 (S.D. Ohio 2007)……………....……9,10

United Feature Syndicate Inc. v. Miller Features Syndicate, Inc., 216 F. Supp. 2d 198, 218

(S.D.N.Y. 2002)…………………………………………………………………....... ………….17

Lumbermens Mut. Cas. Co. v. Franey Muha Alliant Ins. Servs., 388 F. Supp. 2d 292, 305

(S.D.N.Y. 2005)…………………………………………………………………... …………….17

STATUTES

Minn. Stat. § 181.955………………………………………………………………………...…5, 8

29 U.S.C. § 185(a) (2006)…………………………………………………………..………6, 7, 12

U.S.C.A. Const. Art. 6, cl. 2……………………………………………………………………..10

9 U.S.C. § 10(a)(1)(2)………… ……………………………………………...........................…19

1

STATEMENT OF FACTS

Michael Scott, the plaintiff, is employed by the Minnesota Wild, L.L.C. and is a member

of the National Hockey League Players’ Association (NHLPA), the other plaintiff in this suit. R.

at 3. In 2013, the NHLPA and the National Hockey League (NHL) entered into a Collective

Bargaining Agreement. CBA. R. at 3. The CBA included an explicit NHL Policy regarding

Anabolic Steroids and Related Substances (Policy). Id.

Under the Policy, NHL players are banned from using a variety of “Prohibited

Substances,” ranging from performance-enhancing drugs to several “masking agents,” including

Narcotussin. Id. The Policy also imposes a strict liability rule, informing players that “a positive

test result will not be excused because a player did not know he was taking a Prohibited

Substance.” Id. Thus, when the NHLPA signed the CBA, it unambiguously adopted the strict

liability standard that is enforced on a player who tests positive for banned substances. Id. For a

players first positive drug test, the policy imposes a minimum 20-game suspension. Id. Players

can appeal suspensions by appealing “to an arbitrator…whose decision constitutes a full, final,

and complete disposition of the appeal that is binding on all parties.” Id.

Dr. Schrute, the “Independent Administrator” of the Policy, oversees the drug testing

procedure and reports any test results to the NHL. Id. at 3-4. Dr. Jim Halpert, the Consulting

Toxicologist, also helps implement the Policy. Id. at 4. Neither Dr. Schrute or Dr. Halpert are

affiliated with a NHL team or the Commissioner. Id. In 2013, the NHL discovered that the

relaxation supplement SuperDope, which claimed to induce deep natural sleep, contained

Narcotussin, a banned substance under the Policy. Id. Narcotussin, has a hemodilution effect, and

is commonly used as a “masking agent” for other banned substances. R. at 4. n.1. Once Dr.

Schrute learned SuperDope contained Narcotussin, he informed Dr. Halpert, who asked the

2

Director of the Sports Medicine Research Testing Laboratory, Creed Bratton, to analyze

SuperDope. R. at 4. Shortly after, Bratton contacted Drs. Halpert and Schrute, confirming that

SuperDope contained Narcotussin. Id. Phyllis Vance, the Vice President of Law and Labor

Policy for the NHL, also knew SuperDope contained Narcotussin. Id.

Once notified, the NHL informed the NHLPA that Dunder Mifflin, distributor of

SuperDope was listed as a banned company, thus, prohibiting players from using or endorsing

their products. Id. The NHL asked the NHLPA to notify all NHL players of this new

development. Id. The NHLPA agreed, sending an email to the players providing notice that “the

company that produces and distributes SuperDope has been added to the list of prohibited

supplement companies.” Id. Dr. Halpert also notified all NHL players, through a memorandum,

“advising players to avoid taking any supplements claiming to induce deeper sleep.” Id. Dr.

Halpert reminded players that the Policy has a strict liability rule on positive test results. Id.

Under the Policy, “any positive results for banned substances will constitute a violation of the

NHL Policy on Anabolic Steroids, regardless of your intent to do so.” Id. at 3-4.

Despite Dr. Halpert’s warnings, Michael Scott took SuperDope before a preseason

scrimmage. Id. at 4. Consequently, Scott took a drug test, in which he tested positive for

Narcotussin. Id. Pursuant to the Policy, the league suspended Scott for twenty games. Id. at 3-4.

Three other members of the NHLPA, who were not employees of the Minnesota Wild, also

tested positive for Narcotussin and also received a twenty-game suspension. Id. at 4.

Subsequently, Mr. Scott, the three additional players, and the NHLPA appealed the suspensions

to an independent arbitrator. Id. At arbitration, none of the players disputed that they had

Narcotussin in their systems. Id. Each player admitted that they received warnings regarding the

3

dangers of sleep aid supplements and knew that the Policy made every player responsible for all

substances detected in their bodies. Id.

The NHLPA and the players argued, however, that their suspensions should be nullified

because Dr. Schrute and the NHL knew SuperDope products contained Narcotussin, but failed to

notify NHL players. Id. at 4-5. The Players asserted that the Policy established a fiduciary duty

requiring the NHL and its appointed officials to provide an ingredient specific warning regarding

supplements that contain Narcotussin. Id. at 5. Relying on the Policy’s strict liability rule, and

the player’s failure to address the policy, the arbitrator upheld the suspensions. Id. The arbitrator

found the players were aware of the Policy and that “supplements are used by players at their

own risk.” Id. Additionally, the arbitrator found the players failed to demonstrate that the Policy

imposed “any obligation to issue specific warnings about specific products.” Id. at 3, 5.

Furthermore, the arbitrator ruled that if the NHLPA wanted the Policy to require NHL officials

to provide ingredient specific warnings, then they should have bargained for a new clause in the

CBA. Id. at 5. The arbitrator, however, found “nothing in the record to suggest that the parties

ever contemplated such a requirement.” Id.

Subsequently, Mr. Scott sued the NHL, Dr. Schrute, Dr. Halpert and Ms. Vance in

Minnesota state court. Id. Mr. Scott alleged that the Policy violated Minnesota’s Drug and

Alcohol Testing in the Workplace Act (DATWA). Id. Mr. Scott sought damages and an

injunction from the Minnesota state court to set aside the arbitration award. Id. Minnesota state

court granted Mr. Scott a temporary restraining order to block his suspension. Id. The injunction

applied to Mr. Scott alone, but not the three other suspended players, as Mr. Scott was the only

Minnesota state employee. Id. The NHL transferred the case to federal court where, under the

Labor Management Relations Act (LMRA), they moved for summary judgment. Id. In contrast,

4

the NHLPA sought to vacate the arbitration award. Id. The NHL claimed that Mr. Scott’s

DATWA claim was preempted by Section 301 of the LMRA, thus, the arbitration should be

enforced. Id.

The United States District Court for the Southern District of Tulania upheld the

suspension. Id. The NHLPA and Mr. Scott appealed to the Tulania Court of Appeals, where the

District Court’s finding was reversed. The appellate court held that the DATWA claim was not

preempted by Section 301 of the LMRA, thus, the arbitration award should be vacated. Id.

5

STATUTORY FRAMEWORK

Drug and Alcohol Testing in the Workplace Act (DATWA)

DATWA governs drug and alcohol testing in the Minnesota workplace by imposing

“minimum standards and requirements for employee protection” with regard to an employer's drug

and alcohol testing policy. Minn. Stat. § 181.955 subdiv. 1 (2010). Pursuant to DATWA, a

Minnesota employer’s drug and alcohol testing policy must, at a minimum, provide: (1) the

employees or job applicants subject to testing under the policy; (2) the circumstances under which

drug or alcohol testing may be requested or required; (3) the right of an employee or job applicant

to refuse to undergo drug and alcohol testing and the consequences of refusal; (4) any disciplinary

or other adverse personnel action that may be taken based on a confirmatory test verifying a

positive test result; (5) the right of an employee or job applicant to explain a positive test result on

a confirmatory test; and (6) any other appeal procedures available.

Id. § 181.952 subdiv. 1(1)-(6); R. at 6. Additionally, DATWA explicitly addresses CBAs. Id. The

Act authorizes exceptions for “professional athletes if the professional athlete is subject to a CBA

permitting random testing but only to the extent consistent with the collective bargaining

agreement.” Id. § 181.951(4)(2).

Section 301 of the Labor Management Relations Act (LMRA)

Federal law governs the resolution of labor disputes under LMRA Section 301. See Textile

Workers Union v. Lincoln Mills, 353 U.S. 448, 456 (1957). Section 301 of the LMRA provides

that “suits for violation of contracts between an employer and a labor organization representing

employees in an industry affecting commerce . . . may be brought in any district court of the United

States having jurisdiction of the parties.” 29 U.S.C. §185(a) (2012). As such, “a suit in state court

alleging a violation of a provision of a labor contract must be brought under § 301 and be resolved

6

by reference to federal law.” Allis-Chambers Corp. v. Lueck, 471 U.S. 202, 210 (1985). Further,

“when resolution of a state law claim is substantially dependent upon analysis of the terms of an

agreement made between the parties in a labor contract, that claim must either be treated as a §

301 claim . . . or dismissed as pre-empted by federal labor-contract law.” Id. at 220.

ARGUMENT

I. THE TULANIA COURT OF APPEALS INCORRECTLY HELD THAT

MICHAEL SCOTT AND THE NHLPA’S CLAIM UNDER MINNESOTA’S

DRUG AND ALCOHOL TESTING IN THE WORKPLACE ACT WAS NOT

PREEMPTED BY SECTION 301 OF THE LABOR MANAGEMENT

RELATIONS ACT.

A. Because Mr. Scott and The NHLPA’S DATWA Claim Arises From The CBA,

and are Substantially AND Inexplicably Intertwined with an Interpretation of

the CBA, their Claim Should be Dismissed as Preempted by the LMRA.

Michael Scott and the NHLPA’s DATWA claim is preempted by Section 301 of the Labor–

Management Relations Act. Section 301 applies to suits for violation of CBAs between an

employer and a labor organization. 29 U.S.C. § 185(a); Williams v. Nat’l Football League, 582

F.3d 863, 873 (8th Cir. 2009). The Supreme Court has held that Section 301 preempts state law

claims that are substantially dependent on an analysis of a CBA. Allis–Chalmers Corp., 471 U.S.

at 202; Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403, 108 S. Ct. 1877, 1880 (1988);

Williams, 582 F.3d at 874; 29 U.S.C. § 185(a). Otherwise, the application of state law could lead

to inconsistent results, “since there could be as many state-law principals as there are

States.” Lingle, 486 U.S. at 405-6; Williams, 582 F.3d at 874. Rather, the “federal labor-law

principles, necessarily uniform throughout the nation, must be employed to resolve the dispute.”

Id.

However, the preemption power of Section 301 is necessarily limited. “Not every dispute

concerning employment, or tangentially involving a provision of a collective-bargaining

agreement, is pre-empted by Section 301.” Allis–Chalmers Corp., 471 U.S. at 202. Section 301

7

does not preempt state law claims merely because the parties involved are subject to a CBA.

Williams, 582 F.3d at 874; See Allis–Chalmers Corp., 471 U.S. at 211-12. “As long as the state-

law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of

the agreement for LMRA pre-emption purposes.” Bogan v. Gen. Motors Corp., 500 F.3d 828, 832

(8th Cir.2007).

Michael Scott and the NHLPA’s claim is preempted by Section 301 of the Labor

Management Rights Act. The LMRA's preemption provision preempts state-law claims that are

inextricably intertwined with or substantially dependent upon analysis of a collective bargaining

agreement. 29 U.S.C.A. § 185(a); Trustees of Twin City Bricklayers Fringe Ben. Funds v. Superior

Waterproofing, Inc., 450 F.3d 324, 330 (8th Cir. 2006); Williams, 582 F.3d at 863. In determining

whether Section 301 preemption applies to a claim, courts in the Eighth Circuit start with the claim

itself, applying a two-step approach to determine whether it is sufficiently “independent” of the

CBA to survive preemption. Williams, 582 F.3d at 874; Trustees of Twin City Bricklayers Fringe

Ben. Funds, Inc., 450 F.3d 324, 330 (8th Cir. 2006). First, a state-law claim is preempted if it is

based on a provision of the collective bargaining agreement, meaning that the CBA provision at

issue actually sets forth the right upon which the claim is based. Id. Second, preemption applies

where a state-law claim is dependent upon an analysis of the relevant CBA, meaning that the

plaintiff's state-law claim requires interpretation of a provision of the CBA. Id.

In regard to the first step of the preemption analysis, the DATWA claim actually sets forth

the right upon which the DATWA claim is based. To begin the preemption analysis, the Court first

looks at the essence of the DATWA claim. Minnesota’s Drug and Alcohol in the Workplace Act

establishes specific procedures for an employer’s drug and alcohol testing of employees in

Minnesota. Id; Minn. Stat. § 181.955 subdiv. 1. The Act specifically provides that its terms “shall

8

not be construed to limit the parties to a CBA from bargaining and agreeing with respect to a drug

and alcohol testing policy that meets or exceeds, and does not otherwise conflict with, the

minimum standards and requirements provided in the Act.” See Id. A State DATWA claim applies

to all businesses in Minnesota unless the claim is preempted by federal law, pursuant to the Labor

Management Relations Act. Id. The CBA includes the NHL’s full policy of drug testing rules,

procedure, and mandatory disciplinary action. R. at 3; 7. Though Mr. Scott and the NHLPA do not

specify which provisions in the CBA does not meet the minimum requirements provided by

DATWA, the Drug Testing Policy set out in the CBA is the subject of the dispute. Since the

DATWA claim is clearly based on a provision found within the CBA, the first prong of the

preemption test is not under dispute.

The claim is inextricably intertwined with and dependent upon an analysis of the relevant

CBA. Next, The Court analyzes whether the plaintiff's DATWA claim requires interpretation of

the Drug testing provision of the CBA, or merely a reference to it. In cases on Section 301

preemption, the Supreme Court has compared those which require interpretation of the CBA from

those which only require reference to it. Livadas v. Bradshaw, 512 U.S. 107, 124–25, 114 S.Ct.

2068 (1994). A claim that is otherwise independent from the CBA will not be preempted if the

CBA need only be consulted during its adjudication. See Id. In Lividas, the court held that there

was no Section 301 preemption because the wage rate provision in the CBA only had to be

referenced, and not interpreted, to compute the proper damages. Id.

Unlike in Livadas, where the Court found it unnecessary to interpret any provision of the

CBA, Michael Scott and the NHLPA’s DATWA claim does not merely need reference to the

provision. In assessing the DATWA claim, the Court’s analysis is substantially dependent on an

interpretation of the CBA. In order to assess the DATWA claim, and because the respondent fails

9

to specify which provision in the CBA fails to comply with the DATWA statute, the Court must:

(1) determine which of the “certain provisions” Mr. Scott and the NHLPA believe do not meet the

DATWA requirements. R. at 5; (2) interpret whether the DATWA is even applicable given that

the explicit language of the statute fails to include and or apply to the types of substances that are

at issue (ie. sleep aid supplements, masking agents, and performance enhancing drugs). R. at 6; (3)

if DAWA applies, the court must interpret whether the NHL’s testing facilities satisfy the

laboratory certification requirements of The Act. R. at 16; and (4) if the court successfully resolves

all of these questions without interpretation, the court will still have to determine whether the CBA

“meets or exceeds” DATWA's requirements. R. at 6. It is essential that the court analyze and

interpret these different provisions of the CBA to assess the DATWA claim and to assure uniform

interpretation and resolution. Thus, the Respondent’s claim should be preempted by Section 301

of the LMRA.

Furthermore, the DATWA claim should be preempted because respondents claim that the

NHL breached a fiduciary duty hinges on an analysis of the CBA. Conversely to the courts finding

in Livadas, in Allis–Chalmers Corp., although neither party had alleged a violation of the CBA,

the Supreme Court decided that an employee's common law fiduciary duty claim against his

employer was preempted under Section 301. Allis–Chalmers Corp., 471 U.S. 202. The Court held

that because the employer's fiduciary duties turned on the analysis of its contractual good faith

obligations, the claim could not be resolved without interpreting the CBA. Id. at 215–18. The

Court reached a similar result in United Steelworkers of America v. Rawson, 495 U.S. 362, 110

S.Ct. 1904 (1990), Atwater v. Nat'l Football League Players Ass'n., 626 F.3d 1170 (11th Cir.

2010), and Stringer v. Nat'l Football League, 474 F. Supp. 2d 894 (S.D. Ohio 2007). In these cases,

common law negligence claims, asserted by employees against their unions, were preempted under

10

Section 301 because their resolution depended upon whether the CBAs could be interpreted to

have imposed a duty of care on the unions. See United Steelworkers of America, 495 U.S. 362;

Atwater, 626 F.3d 1181; Stringer 474 F. Supp. 2d 910. These three Supreme Court decisions hold

that State Law Claims, alleging a fiduciary duty, will be preempted under Section 301 if their

resolution depends on interpretation of a CBA. See Trustees of Twin City Bricklayers Fringe Ben.

Funds, 450 F.3d at 330–31.

Like in Allis–Chalmers Corp., United Steelworkers, Atwater, and Stringer, even if the

Court believes they need not interpret any provision of the CBA to assess the DATWA claim, the

DATWA claim should nonetheless be preempted because of the Respondent’s claim of a breached

common law fiduciary duty. Michael Scott and the NHLPA argue that the NHL has a fiduciary

duty that was breached when the NHL strategically chose not to disclose specific products that

contained banned substances. R. at 5;14. Since the claim of an implied fiduciary duty is a common

law claim, similar to the previously referenced cases, this claim should be preempted by Section

301 of the LMRA. Michael Scott and the NHLPA’s claim is based on facts set out in the CBA.

Thus, evaluating the DATWA claim is inextricably intertwined with and substantially dependent

upon analysis of a collective bargaining agreement. This court, therefore, should find that the

DATWA claim is dismissed as preempted by the LMRA.

B. A Uniform Interpretation of the CBA and POLICY is Favored by Public Policy,

and Essential to Assure the Fairness of Competition and to Preserve the NHL’S

Business as a National Organization.

The question of whether certain state action is preempted by federal law is one of

congressional intent; and the purpose of Congress is the ultimate touchstone. Allis–Chalmers

Corp., 471 U.S. at 202. Through Section 301 of the Labor–Management Relations Act, Congress

intended to provide federal jurisdiction over law suits for violations of collective bargaining

11

agreements “[i]n order to fashion a body of federal common law for the purpose of resolving labor

disputes in a uniform manner across the country.” Allis–Chalmers Corp., 471 U.S. at 202;

Anderson v. Ford Motor Co., 803 F.2d 953, 955 (8th Cir. 1986). The primary concern of Congress

when they gave federal courts jurisdiction over suits for violation of labor contracts, was that

unions as well as employees should be bound by collective bargaining agreements. Textile Workers

Union of Am.,353 U.S. at 448. Interests in interpretive uniformity and predictability require that

labor contract disputes be resolved by reference to federal law and also require that the meaning

given a contract phrase or term also be subject to uniform federal interpretation. 29 U.S.C.A. §

185; U.S.C.A. Const. Art. 6, cl. 2; Allis–Chalmers Corp., 471 U.S. at 202.

Public Policy for Collective Bargaining Agreements favors preemption. The Supreme

Court has held that Section 301 preempts state law claims that are substantially dependent on an

analysis of a CBA. Allis–Chalmers Corp., 471 U.S. at 202; Williams, 582 F.3d at 874; Trustees of

Twin City Bricklayers Fringe Ben. Funds., 450 F.3d at 330. Otherwise, the application of state law

could lead to inconsistent results, “since there could be as many state-law principals as there are

states.” Lingle, 486 U.S. at 405-6; Williams, 582 F.3d at 874. Therefore, “federal labor-law

principles, necessarily uniform throughout the nation, must be employed to resolve the

dispute.” Id. Denying preemption and subjecting the NHL’s Policy to divergent state regulations

would render the uniform enforcement of its drug testing policy, on which it relies as a national

organization for the integrity of its business, nearly impossible. See Id; R. at 8.

The integrity of the CBA, Drug Testing Policy, and the NHL would be greatly diminished

if players are held to different standards based on the jurisdiction they lived in or currently playing

in. Neither Minnesota nor any other state has the right to use its state laws in a way that has a

practical effect of regulating the terms and conditions of competition in any other states in which

12

NHL teams compete. See Healy v. Beer Inst. Inc., 491 U.S. 324, 336 (1989). The NHL’s policy

serves to enforce a uniform standard of player conduct across all jurisdictions to preserve the

integrity of the game, and to ensure fairness for all players regardless of the state they play in. R.

at 9. Though Mr. Scott is a member of the Minnesota Wild, his membership in the NHL is

dependent upon the operation of a national league that allows him to play hockey games in almost

half of the country. R. at 8. In the case at hand, out of four players suspended for violating the

CBA and Drug Testing Policy, Scott is the only player subject to the DATWA claim. R. at 4. As

a result, Mr. Scott has been able to compete in the field of play while his suspension is set aside.

R. as 5. As for the Minnesota Wilds, they are the only organization out of those affected who have

had the unfair benefit of utilizing their suspended player in games, while all other teams in the

league must compete without suspended players. R. at 5; 18.

In order to preserve the fairness of competition and preserve the NHL's business as a

national organization, federal uniform interpretation of the CBA and Policy is necessary.

Inconsistencies within the application of drug testing policies, as well as disciplinary outcomes,

undermine the integrity of the athletic competition in the NHL. R. at 9. This injustice distorts the

outcome of games, and distorts the reputation of the NHL as an organization. Id. Allowing Scott’s

DATWA claim, but denying other NHL players that same right, would result in an unequal

application of the policy. Id. The behavior of players who knowingly choose to ingest prohibited

substances, would be positively reinforced, and those players who have chosen to follow the rules

accordingly, would be unfairly punished. Id. Since Public Policy for CBAs favor preemption,

uniform interpretation, and dispute resolution, this court should find that Michael Scott and the

NHLPA’s DATWA claim is dismissed as preempted by the LMRA.

13

For the reasons stated above, this court should overturn the decision of the Tulania Court

of Appeals and find that Michael Scott and the NHLPA’s DATWA claim is dismissed as

preempted by the LMRA.

II. THE TULANIA COURT OF APPEALS DECISION TO SET ASIDE AN

ARBITRATION AWARD SHOULD BE REVERSED BECAUSE THE

AWARD DOES NOT IGNORE A FIDUCIARY DUTY OR VIOLATE PUBLIC

POLICY.

Mr. Scott and the NHLPA do not overcome the necessarily high burden for a court to set

aside an arbitration award. Courts give arbitrators an “extraordinary level of deference.” Stark v.

Sandburg, Phoenix & von Gontard, P.C., 381 F.3d 793, 798 (8th Cir. 2004). If arbitrators remain

within the scope of their authority, courts routinely defer to arbitrators and their decision-

making. Stark, 381 F.3d 798. While arbitrators enjoy “broad authority,” courts are entitled to a

restricted judicial reviewing of an arbitration award. Schoch v. InfoUSA, Inc. 341 F.3d 785, 788

(8th Cir. 2007); Med. Shoppe Int’l Inc. v. Turner Invs., Inc., 614 F.3d 485, 488 (8th Cir. 2010).

The Federal Arbitration Act (FAA) restricts a court’s review of an arbitration award and

established “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Mem.

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 74; 9 U.S.C. § 10(a)(1)(2); R. at 10. An

arbitration award can be set aside only if the award “was procured by fraud, corruption or undue

means, or when “there was evident partiality or corruption in their arbitrators.” 9 U.S.C. §

10(a)(1)(2). Courts have also vacated awards when an award is “completely irrational” or

manifest[s] disregard for the law.” Schoch, 341 F.3d 788; Med. Shoppe, 614 F.3d 485, 488.

These instances show the “exceptionally narrow” path courts take to reverse or vacate an

arbitration award. Coca-Cola Bottling Co. v. Teamsters Local Union No. 688, 959 F.2d 1438,

1440 (8th Cir. 1992). Thus, absent unreasonable abuse of authority or FAA violation, the Courts

are required to affirm arbitration awards. Stark, 381 F.3d 798; Crawford Group, Inc. v.

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Holekamp, 543 F.3d 971, 976 (8th Cir. 2008). “The award must be confirmed so long as the

arbitrator is even arguably construing or applying the [agreement]” regardless of how the court

thinks the Policy should be interpreted. Williams v. Nat’l Football League, 582 F.3d 863 (2009);

(quoting Winfrey v. Simmons Food Inc., 495 F.3d 549, 551 (8th Cir. 2007).

The arbitration award, in the present case, asserts that (1) the Collective Bargaining

Agreement (CBA) Policy “does not impose any obligation on NHL officials to issue specific

warnings about specific products,” and (2) the awards do not violate an explicit public policy. R.

at 5, 11-12. The award also notes that the NHLPA did not attempt to bargain for a clause

outlining a fiduciary duty. R. at 5, 11.

Mr. Scott and the NHLPA seek to vacate and set aside this arbitration award. R. at 4-5. Mr.

Scott tested positive for Narcotussin, a banned substance under the Policy. R. at 4. Both Mr.

Scott and the NHLPA assert two bases to vacate the arbitration award: (1) the award ignores the

contractual fiduciary duty that the NHL and Dr. Schrute breached, and (2) the breach of fiduciary

duty violates public policy, which requires both the NHL and Dr. Schrute to disclose ingredient

specific warnings to NHL Players regarding all banned substances. R. at 5, 10-11.

This Court must determine whether the NHL’s policy violates an explicit protected public

policy. MidAm. Energy Co. v. Int’l Bhd. Of Elec. Workers Local 499, 345 F.3d 616, 620 (8th Cir.

2003). The Arbitrator and District Court agreed that the NHL did not owe a fiduciary duty, thus,

neither a breach of duty nor a violation of public policy exists. R. at 5, 12. Accordingly, both the

Arbitrator and the District Court held that Mr. Scott’s suspension should be upheld. Id.

The Court of Appeals reversed these rulings, holding that the NHL violated public policy

when they jeopardized NHL Player health. R. at 19. The Court of Appeals, however, failed to

15

identify through either statute or regulation that Player health is an explicit public policy in need

of legal protection.

We argue that Mr. Scott and the NHLPA have failed to prove that (1) a fiduciary duty exists,

(2) that the fiduciary itself is an explicit public policy, (3) that the explicit public policy was

violated and (4) the arbitrator’s interpretation of the policy condoned the violation of a “well

defined,” “dominant” and explicit public policy. W.R. Grace & Co. v. Local Union 759, Int’l

Union of the United Rubber, 461 U.S. 757, 766 (1983). Thus, the arbitration award should be

upheld.

A. A High Standard Must Be Met For a Court to Overrule an Arbitration Award

When an arbitration clause is mutually bargained for, “a federal court may not overrule

an arbitrator’s decision simply because the court believes its own interpretation of the contact

would be the better one.” W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber,

461 U.S. 757, 764-65.

In W.R. Grace & Co.., the Court affirmed an arbitrator’s decision that favored male

employees and penalized the employer. W.R. Grace & Co., 461 U.S. 772. Male employees were

on strike until the bargaining agreement was passed, and, upon return, complained that their

employer violated the collective bargaining agreement by retaining the strike replacement

employees. W.R. Grace & Co., 461 U.S. 759. The arbitrator agreed with the male employees and

the court ruled that “regardless of what [the court’s] view might be of the…arbitrator’s

contractual interpretation, the Company and the Union bargained for” the arbitrator’s

interpretation to govern.” W.R. Grace & Co., 461 U.S. 765. Thus, “a federal court cannot

“second-guess” the arbitrator’s decision even if “the basis for the arbitrator’s decision may be

ambiguous.” W.R. Grace & Co., 461 U.S. 765.

16

Similar to W.R. Grace & Co., here, the Company (the NHL) and the employees (the

NHLPA & players) bargained for an arbitrator to resolve any contractual disputes. The Court’s

holding in W.R. Grace & Co. instructs future courts to affirm an arbitrator’s decision, unless, the

arbitrator has ventured outside of its scope of authority should apply to this dispute. W.R. Grace

& Co., 461 U.S. 765.

B. The Arbitration Award Arises out of the NHL CBA Policy.

The arbitration award undisputedly “draws its essence” from the CBA Policy. United

Paperworkers Int’l. Union v. Misco, Inc., 484 U.S. 29, 36-38 (1987). The Policy delegated the

authority to decide suspension appeals to an “Independent Arbitrator.” R. at 4. The arbitrator has

a duty to use the Policy’s language and context to issue a fair arbitration award. Misco, Inc., 484

U.S. 38. If the arbitrator were to ignore the Policy’s “plain language,” then the NHLPA could

challenge the arbitrator’s authority. Id. However, here, both parties concede that the arbitrator

acted within the scope of its authority and did commit a serious error to overturn the award on

this issue. R. at 10. Since the arbitrator award adheres to the policy, this Court must determine

whether the award ignored a fiduciary duty, and therefore, should have triggered the public

policy exception. W.R. Grace & Co., 461 U.S. 766. If this Court decides the award is “contrary

to public policy,” then the award is “unenforceable.” W.R. Grace & Co., 461 U.S. 766.

C. The NHL and Dr. Schrute did not owe Mr. Scott and the NHLPA a fiduciary

duty to issue an ingredient specific warning about the presence of Narcotussin in

SuperDope.

The CBA Policy did not outline an explicit fiduciary duty. When deciding if a fiduciary duty

exists, this arbitration award should be viewed as deciding whether the CBA Policy required the

NHL to disclose specific warnings about the content of SuperDope. See E. Assoc. Coal Corp. v.

United Mine Workers of Am., 531 U.S. 57, 62 (2000). Furthermore, this court should look to the

legal relationship and expectations the parties established in the CBA Policy because analyzing a

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potential fiduciary duty is “inextricably intertwined with consideration of the terms of the

[Policy].” Bogan v. Gen. Motors Corp., 500 F.3d 828, 832 (8th Cir. 2007). The NHL CBA

illustrates that it “shall be construed and interpreted under, and shall be governed by, the laws

applicable to contracts made and performed in the State of New York,” unless preempted by

federal law. R. at 11. Mr. Scott and the NHLPA argue that the NHL and its appointed officials

acted as an “authoritative source.” R. at 19. Thus, New York state law enforces a fiduciary duty

on the NHL to disclose ingredient-specific warnings on any potentially harmful dietary

supplements. Id. To establish a fiduciary duty, “New York courts conduct a fact-specific inquiry”

to decide whether confidence has been “reposed,” “reasonably relied on” and “betrayed.” United

Feature Syndicate Inc. v. Miller Features Syndicate, Inc., 216 F. Supp. 2d 198, 218 (S.D.N.Y.

2002); Lumbermens Mut. Cas. Co. v. Franey Muha Alliant Ins. Servs., 388 F. Supp. 2d 292, 305

(S.D.N.Y. 2005).

Here, the Policy establishes Dr. Schrute as the “Independent Administrator” making him

responsible for overseeing and reporting positive test results, and educating players and teams on

when the Policy applies. R. at 3-4, 19. The court found that the NHL and Dr. Schrute voluntarily

“undertook a duty to advise NHL players upon ‘matters within the scope of the relation,’ and

players reasonably relied on their superior expertise and knowledge about the safety of the

dietary supplements.” R. at 19; Lumbermens, 388 F. Supp. 2d at 305. Thus, the court found that

Dr. Schrute broke this duty when he failed to warn NHL players that SuperDope contained

Narcotussin. R. at 19.

These facts alone, however, do not establish a breach of fiduciary duty. In Walton-Floyd,

both an arbitrator and the First Circuit Court of Appeals, awarded summary judgment to the

United States Olympic Committee (USOC), when an athlete was suspended for four years after

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testing positive for amphetamines. Walton-Floyd v. United States Olympic Comm., 965 S.W.2d

35 (Tex. App. 1998). The plaintiff in Walton-Floyd argued that the USOC voluntarily took on a

duty by providing an expert hotline to athletes. Walton-Floyd, 1998 Tex. App. 8. This hotline

encouraged athletes to call and “check the status of all medications” to determine which

substances are banned. Walton-Floyd, 1998 Tex. App. 3-4. That plaintiff, similar to Mr. Scott,

argued that they relied on the expertise behind the hotline and were led astray. Walton-Floyd,

1998 Tex. App. 7-9. The Court disagreed, holding that USOC had no duty to issue ingredient-

specific warnings to athletes about supplements. Walton-Floyd, 1998 Tex. App. 23. The Plaintiff

in Walton-Floyd, actively reached out to their resource, the athlete hotline. Walton-Floyd, 1998

Tex. App. 5-6. Here, however, Mr. Scott did not actively reach out to Dr. Schrute for his medical

expertise on supplements. R. at 11. Instead, Mr. Scott assumed the Policy required Dr. Schrute to

share ingredient-specific details about SuperDope. The Policy, however, does not establish such

a duty. R. 4-5, 11-12. NHL officials sent the players a general warning about the risks of sleep

aid supplements. R. at 11. Additionally, Dr. Schrute testified that “if any of the players had

contacted him to specifically inquire about SuperDope, he would have informed that player that

it contained Narcotussin.” R. at 11. These actions were enough to fulfill the CBA Policy

obligations and were not properly utilized by Mr. Scott. R. at 4-5.

If a hotline service used by an athlete to guard against taking a banned substance does not

create a fiduciary duty, then in the present case, Mr. Scott’s mere passive reliance on the Policy

should not be enough to create a fiduciary duty. Here, the District Court agreed and found that

“while a specific warning might have been preferable to the NHLPA and the players, it is not a

breach of fiduciary duties to tell players only that sleep aids may pose health risks.” R. at 11.

Additionally, a general warning explained how all sleep aid supplements are risky. Whereas, a

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specific warning may imply supplements that are not mentioned are safe to use. The NHLPA and

Scott failed to show a breach of any fiduciary duties. Thus, their claim to set aside the

arbitrator’s award should fail.

D. Mr. Scott and NHLPA Did Not Establish a Clear New York Public Policy

Violation.

A court cannot enforce a collective bargaining agreement that violates public policy.

W.R. Grace & Co., 461 U.S. 766. “If the [Policy] as interpreted by [the arbitrator] violates some

explicit public policy, [courts] are obliged to refrain from enforcing it.” Id. To be explicit, the

public policy exception must be “well defined,” “dominant” and “ascertained by reference to the

laws and legal precedents.” W.R. Grace & Co., 461 U.S. 766 (quoting Muschany v. United

States, 324 U.S. 49, 66 (1945). Here, however, no explicit public policy exists. Thus, the

arbitrator’s interpretation of the CBA does not “compromise” public policy. W.R. Grace & Co.,

461 U.S. 757, 766-67. The exception to set aside an arbitration award is “narrow,” and only

exists where an explicit public policy is violated. E. Associated Coal Corp. v. United Mine

Workers, 531 U.S. 57, 63.

In Delta Air Lines, a pilot was fired for being intoxicated while flying and the arbitrator

awarded his reinstatement. Delta Air Lines, Inc. v. Air Line Pilots Asso., International, 861 F.2d

665, 668. The Eighth Circuit Court of Appeals disagreed and held that reinstating the pilot would

risk flight attendant’s health and violate forty-one state and federal statutes that prohibit

operating an aircraft while intoxicated. Delta Air Lines, 861 F.2d 672-675. Thus, the arbitration

award was set aside. Delta Air Lines, 861 F.2d 675.

In contrast, here, Mr. Scott and the NHLPA failed to identify a legal provision that

explicitly states how a public policy is at play. The Tulania Court of Appeals ruled that the

arbitration award violates public policy because the award did not discipline the league for

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deliberately withholding information that could jeopardize future player health. R. at 19. This

decision, however, misapplies the public policy exception. A court “second guess[ing]” the

arbitrator’s findings or conclusions is not permitted. See, e.g., Denver & Rio Grande W.R.R. v.

Union Pac. R.R., 119 F.3d 847, 850 (10th Cir. 1997) (court refused to analyze the arbitrator’s

findings under the public policy exception). Instead, a court should evaluate “whether the award

itself, and not the underlying reasons for the award, violates public policy.” Kennecott Utah

Copper Corp v. Becker, 195 F.3d 1201 (1999).

The present case also differs from Iowa Electric Light & Power, where a company fired

an employee for disabling a “federally-required safety mechanism,” but the arbitrator ordered

reinstatement. Iowa Elec. Light & Power Co. v. Local Union 204 of the Int’l Bhd. Of Elec.

Workers, 834 F.2d 1424, 1426 (8th Cir. 1987). In Iowa Electric, the Court found that protecting

the safety of the “public from the hazards of nuclear radiation” was a dominant, explicit and

well-defined policy. Iowa Electric, 834 F.2d 1428. Thus, the arbitration award that reinstated the

employee whose actions endangered public safety violated public policy. Id. This gave the

Second Circuit Court of Appeals the authority to set aside the arbitration award. Id. at 1430.

In both Delta Air Lines and Iowa Electric public policies were “well-defined” and

“ascertained by….laws and legal precedents.” Delta Air Lines, 861 F.2d 668; Iowa Electric, 834

F.2d 1426, 1428; W.R. Grace & Co., 461 U.S. 766. The current case is demonstrably different.

Here, suspending NHL players for taking banned substances does not violate a statute or

regulation. Additionally, in the present case, the potential concern for player health does not rise

to the level of public safety concern in Delta Air Lines or Iowa Electric. Delta Air Lines, 861

F.2d 668; Iowa Electric, 834 F.2d 1424.

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The Tulania Court of Appeals did not attempt to use existing laws and legal precedents in

order to demonstrate a “well-defined and dominant” policy against general warnings suggesting

not to take sleep aid supplements. W.R. Grace & Co., 461 U.S. 766. Instead, this court second-

guessed the arbitration award and gave its own interpretation of the Policy. The court found that

Dr. Schrute willfully, deliberately, and knowingly endangered player health by not providing

ingredient-specific warnings about SuperDope. R. at 19. This decision, however, “is an exercise

in factfinding….a task that exceeds the authority of a court asked to overturn an arbitration

award.” Misco, Inc., 484 U.S. at 44-45. Here, “the parties did not bargain for the facts to be

found by a court,” instead they bargained for an arbitrator. Id. at 45. Furthermore, the Court, in

W.R. Grace, held “that a formulation of public policy based only on ‘general considerations of

supposed public interests’ is not the sort that permits a court to set aside an arbitration award.”

W.R. Grace & Co., 461 U.S. 766. Thus, “a refusal to enforce an award must rest on more than

speculation or assumption.” Misco, Inc., 484 U.S. 44.

Mr. Scott admits he understood the CBA Policy’s strict liability rule and received the

general warnings about sleep aid pills. R. at 4. The arbitrator found that since Mr. Scott

understood taking a sleep aid supplement could lead to suspension, then the warnings given by

appointed NHL officials provided Mr. Scott with sufficient notice. Id. Without an explicit public

policy, like public safety in Iowa Electric, courts have very little basis to decline an arbitration

award. Iowa Electric, 834 F.2d 1428.

E. The Collective Bargaining Agreement Explicitly Explained the Strict Liability

Standard and NHL Players Should Be Held to this Standard.

The CBA Policy imposes a strict liability rule to discourage players from taking banned

substances. R. at 3-4. If the NHLPA disagrees with the strict liability requirement, then the

NHLPA is free to bargain against the clause. Currently, the Policy does not possess an explicit

22

warning clause that requires NHL officials to issue ingredient-specific warnings. R. at 5. NHL

officials informed Players that “any positive test results for banned substances will constitute a

violation of the NHL Policy on Anabolic Steroids, regardless of your intent to do so.” R. at 4. All

four players in the present case “conceded that they were aware of…the Policy requirement that

players are responsible for all substances that are in their bodies.” Id. Additionally, NHL officials

advised against taking substances inducing “deeper sleep” because sleep aid supplements may

contain banned substances. Id. Both the NHL and NHLPA bargained for this strict liability rule,

thus, the arbitration award that upholds this rule should be followed.

CONCLUSION

We ask this Court to reverse the Tulania Court of Appeals decision and award summary

judgment to the NHL and its appointed officials. Mr. Scott and the NHLPA’s claim is preempted

by law, does not establish a fiduciary duty and lacks an explicit public policy. Thus, there is no

reason to set aside the arbitration award in favor of the NHL.