On December 28, 2023, Arbitrator Roger P. Kaplan handed down one of the strongest decisions ever issued in the National Football League Players Association’s (NFLPA) history. Arbitrator Kaplan ordered that NFLPA Contract Advisor Todd France pay France’s competitor, Jason Bernstein, a total of $810,846.47, with $450,000 as punitive damages.
The basis for the punitive damages was Arbitrator Kaplan’s finding that France won a prior arbitration proceeding because France lied under oath and that, but for France’s untruthful conduct, Bernstein might have prevailed in the dispute. I previously wrote about the U.S. Court of Appeals for the Third Circuit concluding that France committed fraud related to the prior action, which involved NFL wide receiver Kenny Golladay leaving Bernstein in favor of being represented by France.
Arbitrator Kaplan found that the overwhelming evidence demonstrated that France’s untruthful testimony constituted bad faith and that it was so outside the bounds of lawful behavior that punitive damages were necessary to punish the untruthful conduct as well as discourage untruthful testimony in the future. He characterized the conduct as outrageous, which ruptured the integrity of the proceeding and violated the foundation of the NFLPA Regulations.
On March 21, 2024, Arbitrator Kaplan’s decision became public when France filed a Complaint and Petition to Vacate or Modify Arbitration Award in the U.S. District Court for the Eastern District of Virginia. France argues that the award (attached as Exhibit A to the Complaint and Petition) is “the product of prejudicial arbitral misconduct as the arbitrator who made it refused to hear or consider evidence pertinent and material to the controversy” and primarily focuses on an argument that Arbitrator Kaplan went outside of his authority to issue punitive damages. The basis for France’s petition to vacate/modify is that Arbitrator Kaplan allegedly exceeded his powers and rendered an award in manifest disregard of the law.
The lengthy Complaint and Petition claims that on September 26, 2023, Arbitrator Kaplan held a pre-hearing discovery dispute call where he stated that Bernstein could not be awarded punitive damages under the NFLPA Regulations. This was allegedly reiterated by Bernstein’s counsel during opening statements at the final hearing. However, after the hearing, Arbitrator Kaplan invited the parties to submit post-hearing briefs and that he would consider awarding punitive damages.
The Complaint and Petition also cites to a separate 2018 case where Arbitrator Kaplan wrote, in his decision, “the NFLPA Regulations make no provision for punitive damages. If the NFLPA had intended to provide a remedy for punitive damages within its system, it would have done so. In the absence of such a provision, punitive damages cannot be awarded here.”
It is a very high burden on the petitioner to vacate or modify an arbitration decision; judges rarely interfere with decisions made by arbitrators acting within the scope of their authority. During the hearing, NFLPA Associate General Counsel, Heather McPhee, testified that the NFLPA’s position is that it is within the arbitrator’s discretion to issue “money awards” and/or “award interest at his/her discretion.” Based on this testimony, Arbitrator Kaplan concluded that nothing precluded him from awarding damages (punitive or otherwise). I think France will have a tough time convincing a judge that Arbitrator Kaplan acted outside the scope of his authority, no matter what he may have written in a case from six years ago.
I’ll finish this coverage with a portion of the Complaint and Petition side-by-side with Arbitrator Kaplan’s award that I found most interesting. Page 3 of the Complaint and Petition states, “Truth matters.” Interesting choice of words. Arbitrator Kaplan wrote on Page 19 of his opinion, “It is well-settled that lying under oath is an abominable offense and, in addition, constitutes perjury. Lying under oath has been and is regarded as among the most reprehensible of offenses. In many jurisdictions, including under Federal law, perjury is also a crime.”
I think we can all agree that truth matters.
