Case: 17-40936 Document: 00514173969 Page: 1 Date Filed: 09/27/2017

655 Fifteenth Street, N.W.

Washington, D.C. 20005
Paul D. Clement, P.C.
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September 27, 2017

Lyle W. Cayce
Clerk of Court
U.S. Court of Appeals for the Fifth Circuit
F. Edward Hebert Building
600 S. Maestri Place
New Orleans, LA 70130-3408

Re: NFLPA v. NFL, No. 17-40936

Dear Mr. Cayce:

1. a. The district court plainly lacked jurisdiction over the NFLPAs premature
lawsuit. As this Court has held, [f]ederal courts lack jurisdiction to decide cases
alleging violations of a collective bargaining agreement under the Labor Management
Relations Act by an employee against his employer unless the employee has
exhausted contractual procedures for redress. Meredith v. La. Fedn of Teachers, 209
F.3d 398, 402 (5th Cir. 2000); see also id. (referring to exhaustion rule as going to
subject matter jurisdiction). Any contrary rule ... would deprive employer and
union of the ability to establish a uniform and exclusive method for orderly settlement
of employee grievances. Republic Steel Corp. v. Maddox, 379 U.S. 650, 653 (1965)
(emphasis added). The leading treatise agrees with the position adopted by this
Court in Meredith: The federal courts lack subject-matter jurisdiction over such
cases ... if the employee has failed to exhaust contractual procedures for redress.
Wright & Miller, 13D Federal Practice & Procedure 3581.

That conclusion follows from the text of the LMRA, which codifies Congress
decided preference for private settlement of labor disputes, United Paperworkers
Intl Union v. Misco, Inc., 484 U.S. 29, 37-38 (1987), and confers subject-matter
jurisdiction only over [s]uits for violation of contracts between an employer and a
labor organization, 29 U.S.C. 185. As Misco explained, exhaustion is part and
parcel with the district courts authority to act under the LMRA: [C]ourts have
jurisdiction to enforce collective-bargaining contracts; but where the contract provides
grievance and arbitration procedures, those procedures must first be exhausted....
Misco, 484 U.S. at 37 (emphasis added); see Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428, 436 (2011) (underscoring that [c]ontext, including this Courts
interpretation of similar provisions in many years past, is relevant to whether a
statute is jurisdictional). Indeed, until an award issues, a court cannot conduct even

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Lyle W. Cayce
September 27, 2017
Page 2

the limited review the LMRA envisions. See, e.g., Misco, 484 U.S. at 36-37 (asking
whether arbitrators award draws its essence from the [CBA]).

That conclusion is reinforced by the Federal Arbitration Act, which expressly

confines federal-court jurisdiction to review of an arbitral award that has been
made. 9 U.S.C. 9, 10. As both the district court and NFLPA acknowledged, see
Ex.A5, the district court plainly does not have jurisdiction over this suit under the
FAA because there was no award when the NFLPA filed its petition to vacate the
forthcoming award. But nothing in the LMRA suggests that Congress intended
that statute to provide greater judicial license to disturb ongoing arbitral proceedings
than was granted by the FAA. To the contrary, given the congressional concern
reflected in the LMRA and other labor statutes that judges were too ready to
intervene in labor disputes, the last thing Congress wanted the LMRA to do was to
license greater judicial intervention into ongoing labor disputes. Interpreting the
LMRA as confining federal-court jurisdiction to cases in which all contractual
remedies have been exhausted thus honors congressional intent and ensures that
jurisdiction under the LMRA and the FAA will be harmonious.

That interpretation also renders the LMRA harmonious with the requirements
of Article III, as it ensures that resort to federal court is not available until the
employees claim is ripe and his alleged injury is redressable. If no award has yet
issued, then there is not yet a ripe contractual violation, and there is no remedy that
a federal court can order that would redress any alleged injury, as a court cannot
vacate an award that does not yet exist or remedy a violation that has not yet
occurred. Indeed, if the NFLPA had prevailed in arbitration, it surely could not have
turned to the courts to litigate whether the arbitrators award drew its essence from
the CBA by not including Roberts opinion in the investigative report. Both the policy
considerations underlying the statute and the Article III problems that would arise
if federal courts could intervene before any violation has fully and finally occurred
thus compel the conclusion that Congress did not confer subject-matter jurisdiction
on federal courts under the LMRA unless the employee has exhausted contractual
procedures for redress. Meredith, 209 F.3d at 402.

b. All of that said, ultimately, it makes no difference here whether the LMRAs
exhaustion requirement goes to subject-matter jurisdiction in a strict sense or is
instead a quasi-jurisdictional mandatory prerequisite to filing suit. See Gonzalez v.
Thaler, 565 U.S. 134, 157 (2012) ([C]alling a rule nonjurisdictional does not mean
that it is not mandatory.). The NFLPA agrees: Last year, it sought dismissal of an
action based on a players fail[ure] to exhaust his administrative remedies under
the LMRA because he had not awaited the conclusion of his pending arbitration
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Lyle W. Cayce
September 27, 2017
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concerning his potential discipline. NFLPAs Position Statement at 5-6, Pennel, Jr.
v. NFLPA, No. 5:16-CV-02889-JRA (N.D. Ohio Nov. 30, 2016, ECF #8). Because
[t]he normal course would be for Plaintiff to file a petition to vacate the arbitration
decision after it is issued rather than asking a Court to intrude upon an ongoing labor
arbitration proceeding, the NFLPA contended that the player was asking the court
to prematurely and improperly invade the labor and arbitral processes for which the
NFL and NFLPA bargained. Id. at 6.

Regardless of the label, when a CBA provides an arbitration process as the

exclusive and final remedy for a claimed breach, an employee may not resort to the
courts until that process concludes. Maddox, 379 U.S. at 652-53. And regardless of
the label, there are only three circumstances in which that process can be deemed
concluded absent a final arbitral award: (1) the union wrongfully refuses to process
the employees grievance; (2) the employers conduct amounts to a repudiation of
the remedial procedures specified in the contract; or (3) exhaustion of contractual
remedies would be futile. Rabalais v. Dresser Indus., Inc., 566 F.2d 518, 519 (5th
Cir. 1978). The NFLPA has not shown that any of those three circumstances exist
here. The only one it has even invoked is repudiation, but as the briefing amply
demonstrates, the repudiation exception does not apply when the employer is
participating in ongoing arbitration proceedings and a final award is concededly
forthcoming. See Stay Motion 11-15; Reply 3-5.

Accordingly, the NFLPAs premature lawsuit must be dismissed regardless of

whether the exhaustion requirement is strictly jurisdictional or otherwise
mandatory; either way, what matters is that the NFLPA failed to satisfy it. This is
not a situation where the jurisdictional label makes a difference, such as a case where
defendants failed to point out the lack of exhaustion below. See, e.g., Coleman v.
Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 204 (2d Cir. 2007). The NFL has
argued from day one that this case must be dismissed because the NFLPA failed to
exhaust, and its failure to abide by that requirement necessitates dismissal.

To the extent the NFLPA suggests that the jurisdictional label matters because
the final arbitral award has now issued, that is incorrect. Even the district court
recognized that subsequent developments cannot cure a premature filing, Op.5 n.4,
and the NFLPA has yet to identify a single case in which a federal court exercised
jurisdiction over an arbitral award that was not final at the time the lawsuit was
filed, even if the award later issued while the litigation was ongoing. That is because
such a rule is antithetical to the nature of an exhaustion requirement, and the few
employees who have tried the tactic have failed. See, e.g., Kaiser v. U.S. Postal Serv.,
908 F.2d 47, 49-50 & n.2 (6th Cir. 1990); Macon v. Youngstown Sheet & Tube Co., 698
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Lyle W. Cayce
September 27, 2017
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F.2d 858, 859-60 & n.2 (7th Cir. 1983). In Macon, for instance, an employee sued his
employer for allegedly violating the terms of a CBA even though the employees
grievance was still pending on the arbitration case docket. 698 F.2d at 859 n.2. The
arbitrator issued an award while the case was pending, but the district court
nevertheless granted the employers motion to dismiss on exhaustion grounds. Id. at
859-60 & n.2. The Seventh Circuit affirmed, finding it entirely irrelevant that the
arbitration process had concluded post-complaint. Id.

Courts do not allow post-filing developments to cure a failure to exhaust for a

very good reason: because such a gaping exception would invite every plaintiff to file
a premature place-holder suit, thereby thwarting the exhaustion rule and permitting
the kind of blatant forum-shopping the NFLPA engaged in here. Even worse, there
is no limiting principle to a rule that would allow an employee (or employer) to file a
place-holder suit designed to sit dormant until ongoing arbitral proceedings conclude.
In fact, if this lawsuit were treated as timely filed simply because the arbitrator
eventually issued an award, there is no logical reason why the NFLPA could not have
filed suit before the arbitration proceedings even began. The NFLPAs position thus
would transform the first-filed rule into an unproductive race to the bottom, with
employees and employers one-upping each other by filing federal lawsuits in their
favored forums earlier and earlier, clogging up federal dockets with unripe lawsuits.

There is an easy path to avoiding those problems, and it is the same path that
federal labor policy has insisted upon for decades: [I]ndividual employees wishing
to assert contract grievances must attempt use of the contract grievance procedure ...
as the mode of redress. Maddox, 379 U.S. at 652. Until they have done so, [f]ederal
courts lack jurisdiction to decide cases alleging violations of a collective bargaining
agreement under the Labor Management Relations Act. Meredith, 209 F.3d at 402.

2. The consequences of that rule are twofold. First, at a minimum, this Court
should grant the stay, as nothing in the stay equities favors maintaining an
injunction entered by a court that lacked jurisdiction, and each day that the ultra
vires injunction remains in effect undermines the NFLs bargained-for right to impose
swift discipline on players who commit domestic violence. Cf. La Union Del Pueblo
Entero v. Fed. Emergency Mgmt. Agency, 608 F.3d 217, 225 (5th Cir. 2010) (vacating
injunction without addressing equitable factors).

Second, this Court can and should vacate the preliminary injunction right now
and order the entire action dismissed. When an insurmountable defect is apparent
at the outset of appellate proceedings, the appropriate and sensible thing to do is
order the action dismissed. See, e.g., Friedmann v. Sheldon Cmty. Sch. Dist., 995
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Lyle W. Cayce
September 27, 2017
Page 5

F.2d 802, 803 (8th Cir. 1993) ([W]e grant the emergency stay, vacate the injunction,
and remand with instructions to dismiss the action for want of subject matter
jurisdiction.). While this Courts cases addressing stay motions are sparse, the Court
has not hesitated in other interlocutory contexts to dismiss actions upon identifying
incurable threshold defects. In Moore v. Louisiana Board of Elementary & Secondary
Education, 743 F.3d 959 (5th Cir. 2014), for example, the Court confronted an appeal
from a district court order preliminarily enjoining operation of a state statute. After
determining that the defendants were immune from suit, this Court not only vacated
the injunction, but also directed the district court to order dismissal of all claims.
Id. at 964. This Court has followed the same course many other times, correctly
recognizing that there is no reason to prolong hopelessly doomed proceedings, and
that cases in which federal courts cannot grant relief should be promptly dismissed.*

Once this Court is satisfied that the district court lacked the power to act, it
need not go any further or wait any longer to resolve this caseespecially given that
the parties have thoroughly briefed the dispositive issues. Cf. Publicis Commcn v.
True N. Commcns Inc., 132 F.3d 363, 365 (7th Cir. 1997) (This case has been as fully
briefed on the stay motion as most cases ever are .... We summarily vacate the
injunction, mooting the motion for a stay.). The bottom line is that the district court
had no basis to act, and its ultra vires ruling should not be allowed to engender
lingering uncertainty for the remainder of the NFL season.

Sincerely,

s/Pratik A. Shah
Pratik A. Shah Paul D. Clement
Akin Gump Strauss Hauer & Feld LLP
Counsel for Defendants-Appellants

*
See, e.g., Channel v. United States Army Corps of Engrs, 2017 WL 3432026, at *6 (5th Cir. Aug. 9,
2017); Avitts v. Amoco Prod. Co., 53 F.3d 690, 694 (5th Cir. 1995); Natl Mar. Union v. Aquaslide N
Dive Corp., 737 F.2d 1395, 1399 (5th Cir. 1984); Henry v. First Natl Bank of Clarksdale, 444 F.2d 1300
(5th Cir. 1971). Other courts have done the same. E.g., Town of W. Hartford v. Operation Rescue, 915
F.2d 92, 105 (2d Cir. 1990); Gallanosa by Gallanosa v. United States, 785 F.2d 116, 121 (4th Cir. 1986);
People Organized for Welfare & Empt Rights v. Thompson, 727 F.2d 167, 173 (7th Cir. 1984).
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CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing letter brief does not exceed five pages,

pursuant to this Courts order dated September 22, 2017.

I certify that the required privacy redactions have been made pursuant to 5th

Cir. R. 25.2.13 and the document has been scanned for viruses with Windows

Defender, last updated September 27, 2017, and is free of viruses.

s/Paul D. Clement
Paul D. Clement
 Case: 17-40936 Document: 00514173969 Page: 7 Date Filed: 09/27/2017

CERTIFICATE OF SERVICE

I hereby certify that on September 27, 2017, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of Appeals for the

Fifth Circuit by using the CM/ECF system. I certify that service on opposing

counsel will be accomplished by the CM/ECF system or by electronic mail.

s/Paul D. Clement
Paul D. Clement