Arbitration in Professional Sports: Is It Time to Move On?
By Alessandra Makris
Arbitration clauses are extremely common in the contracts of athletes all over the world.[1] However, with the recent focus on eliminating mandatory arbitration clauses in employment contracts,[2] the question of whether professional sports leagues will start doing the same remains. In the world of professional sports, arbitration clauses can often be found within a Collective Bargaining Agreement (“CBA”) between a players’ association and an owners’ group.[3] Five major professional sports have arbitration clauses in their CBAs: Major League Baseball (“MLB”), National Basketball Association (“NBA”), National Football League (“NFL”), Major League Soccer (“MLS”) and National Hockey League (“NHL”).[4] Typically, the clauses outline which type of issues are covered under the agreement, and most often these issues are: “injury and non-injury grievances and salary arbitration.”[5] One example can be seen in the NFL’S CBA. This agreement outlines what an arbitrable non-injury grievance is saying:
Any dispute (hereinafter referred to as a "grievance") arising after the execution of this Agreement and involving the interpretation or application of, or compliance with, any provision of this Agreement, the NFL Player Contract, or any applicable provision of the NFL Constitution and Bylaws pertaining to terms and conditions of employment of NFL players, will be resolved exclusively in accordance with the procedure set forth in this Article, except wherever another method of dispute resolution is set forth elsewhere in this Agreement, and except wherever the Settlement Agreement provides that the Special Master, Impartial Arbitrator, the Federal District Court or the Accountants shall resolve a dispute.[6]
Other examples can be seen in the CBAs of the NBA and of the MLB.[7] Additionally, these professional sports leagues all similarly have a provision recognizing the arbitration clauses in their CBAs within their Uniform Player Contracts.[8] An example of this can be seen in the NBAs Uniform Player Contract which states that if a dispute arises between the athlete and the club relating to any matter covered by this Contract the dispute is to be resolved in accordance to the procedures set forth in the CBA between the NBA and the National Basketball Association Players Association.[9]
The idea behind having these arbitration procedures in place stems from the idea that these procedures “aim to resolve disputes between an individual player and the employing team” and these disputes “cannot be solved by an authoritarian ruling by a judge; [but rather] call for a more even-handed procedure such as arbitration.”[10] Arbitration is a preferred method of dispute resolution because it creates binding decisions, it’s a confidential process, it is swift and flexible,[11] and parties can select an arbitrator that has expertise on the subject-matter at hand.[12]
Despite these positives, there are many criticisms of arbitration in professional sports. One criticism is that in the world of professional sports the arbitrator sometimes “is a part of the sports organization.”[13] For example, NFL Commissioner Roger Goodell serves as an arbitrator.[14] Many argue that commissioners likely are biased and thus will rule in favor of management more often than not.[15] Yet, the alternative that can be seen with the MLB also faces similar criticism.[16] Under the MLB’s arbitration process, an arbitrator is selected through agreement by both the league and the union; the belief being that the arbitrator will be completely neutral as a result. Despite this sentiment, critics have disagreed pointing to the removal of Shyam Das after overturning the suspension of Ryan Braun in February 2012.[17] Despite the differences in the arbitration procedures, the crux of these criticisms—that arbitrators are prone to act in their own best interest—remains the same.[18] Moreover, another criticism of arbitration within professional sports is that they “deny key stakeholders the right to remedy and due process, which is a right guaranteed to everyone under international human rights law.”[19] Along with these criticisms there are criticisms that both critics of arbitration in professional sports and critics of mandatory arbitration in employment contracts generally both point out.[20] These criticisms being: the lack of independence in appointing and removing arbitrators, lack of impartiality, lack of judicial review, lack of transparency, lack of accountability, and relaxed procedures are other examples identified as the downfalls of arbitration in professional sports.[21]
These criticisms of arbitration in professional sports are quite similar to the criticisms activists are highlighting in their crusade to eliminate mandatory arbitration clauses from employment contracts.[22] Yet, arbitration remains the main dispute resolution method. Which leads to the question: if arbitration is evidently not serving the best interest of all parties involved, then shouldn’t professional sports leagues start looking into solving this problem? The issue of mandatory arbitration clauses is far from being solved,[23] but from the looks of things, professional sports leagues will not be joining other employment sectors in eliminating their arbitration clauses outright.
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[1] Georgina King, Sport and Arbitration: The Ideal Doubles Pairing?, Linklaters, (Dec. 18, 2020), https://www.linklaters.com/en-us/insights/blogs/sportinglinks/2020/december/sport-and-arbitration-the-ideal-doubles-pairing [https://perma.cc/R659-Y93S].
[2] Ruth Green, Employment Rights: Time’s up for Mandatory Arbitration, Int’l Bar Ass’n, https://www.ibanet.org/article/5D0F1755-72F2-4DFD-99A9-F8726A8C5299 [https://perma.cc/5L5A-VUHZ] (last visited Nov. 25, 2023).
[3] Using ADR to Resolve Collegiate, Professional, and Sports-Business Disputes, Am. Arb. Ass’n, https://www.adr.org/sites/default/files/document_repository/Using%20ADR%20to%20Resolve%20Collegiate%20Professional%20and%20Sport%20Business%20Disputes.pdf [https://perma.cc/UC8E-9TU8] (last visited Nov. 25, 2023).
[4] Heather R. Insley, Major League Umpires Association: Is Collective Bargaining the Answer to or the Problem in the Contractual Relationships of Professional Sports Today, 29 Cap. U. L. Rev. 601 (2001); see also Unsportsmanlike Conduct: Remedying Human Rights Violations in U.S. Professional Sports Leagues, Hum. Rts. Clinic Univ. Tex. Sch. L., 53 (Feb 2023).
[5] Green, supra note 2.
[6] National Football League Collective Bargaining Agreement, Art. 9 § 1 (1982).
[7] Martin J. Greenberg, Drafting of Player Contracts & Clauses, 4 Marq. Sports L. J. 51 (1993).
[8] Id.
[9] National Basketball Association Uniform Player Contract, Par. 21 (1988).
[10] Stephen Netzle, The Court of Arbitration for Sport—An Alternative for Dispute Resolution in U.S. Sports, 10 Ent. & Sports Law. 1 (1992).
[11] King, supra note 1.
[12] Floyd D. Weatherspoon, Incorporating Mandatory Arbitration Employment Clauses into Collective Bargaining Agreements: Challenges and Benefits to the Employer and the Union, 38 Del. J. Corp. L. 1025 (2014).
[13] Netzle, supra note 10, at 5.
[14] Bob Wallace, Jr., Neutral Arbitrators in Sports: What Makes it Fair?, Thompson Coburn Llp, (Aug. 10, 2015), https://www.thompsoncoburn.com/insights/publications/item/2015-08-10/neutral-arbitrators-in-sports-what-makes-it-fair- [https://perma.cc/4WEG-ABET].
[15] Netzle, supra note 10, at 5.
[16] Wallace, Jr., supra note 14.
[17] Id.
[18] Id.
[19] Hum. Rts. Clinic Univ. Tex. Sch. L., supra note 4.
[20] Id. at 54–66.
[21] Id.
[22] See Matthew DeLange, Arbitration or Abrogation: Title VII Sexual Harassment Claims Should Not Be Subjected to Arbitration Proceedings, 23 J. Gender, Race & Just. 228, 230 (2020); see also Imre S. Szalai, The Widespread Use of Workplace Arbitration Among America’s Top 100 Companies, Nat’l Inst. Workers’ Rts. (March 2018), https://niwr.org/wp-content/uploads/2018/03/NELA-Institute-Report-Widespread-Use-of-Workplace-Arbitration-March-2018.pdf [https://perma.cc/S8T8/AX6K].
[23] King, supra note 1.
