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November 7, 1996


JAMES ROBERTSON, United States District Judge

The opinion of the court was delivered by: ROBERTSON


The decision of the National Football League Players Association ("NFLPA") to lay off and then discharge Rita Raymond and Valerie Thomas in March and April 1988 has given rise to six lawsuits and nearly eight years of litigation. In this, the sixth case, NFLPA sued Ms. Raymond and Ms. Thomas for abuse of process less than three weeks before their employment discrimination claims against NFLPA were set for trial in this Court. NFLPA sued, not only Ms. Raymond and Ms. Thomas, but also their union, Office and Professional Employees International Union, Local 2 ("Local 2"), and a labor arbitrator, James M. Harkless. NFLPA's amended complaint seeks compensatory and punitive damages against Ms. Raymond, Ms. Thomas, and Local 2 for abuse of process; a declaratory judgment nullifying certain decisions of Mr. Harkless; compensatory damages against Local 2 for breach of contract; and compensatory and punitive damages against Mr. Harkless for intentional interference with contract.

 All defendants moved to dismiss. The motions were treated as motions for summary judgment and granted by order dated October 15, 1996. The October 15 order also directed plaintiff to show cause why its damages action against Mr. Harkless did not violate either Fed.R.Civ.P. 11(b)(1) or 11(b)(2). This memorandum sets forth the reasons for that order.


 NFLPA laid off a number of employees, including Rita Raymond and Valerie Thomas, on March 18, 1988. On April 12, 1988, NFLPA notified Ms. Raymond and Ms. Thomas that they were being discharged for cause. Local 2 filed grievances challenging the dismissals. Pursuant to a collective bargaining agreement between NFLPA and Local 2, the dispute was submitted to Arbitrator James M. Harkless. On January 3, 1989, after a hearing, Mr. Harkless found no just cause for the discharges and ruled that NFLPA had violated the collective bargaining agreement. He decided that Ms. Raymond and Ms. Thomas "must be reinstated to their status as employees, with whatever rights to which they are entitled under the Agreement." Arbitrator's Decision at 36.

 Soon after that ruling, Local 2 wrote NFLPA to assert that Ms. Raymond and Ms. Thomas were "entitled to immediate reinstatement with full back pay, from March 1988 to date of reinstatement, and to be made whole for any loss of rights and benefits." NFLPA refused the demand for reinstatement as of March, pointing out that the dismissals were in April 1988 and insisting that the arbitrator had not granted the claims related to the layoffs. Local 2 replied that it would move the layoff grievances to arbitration. NFLPA rejected that effort, taking the position that the discharge and layoff issues had been consolidated before Mr. Harkless and that he must have denied the layoff grievances.

 In her remand order in No. 89-1263, Judge Johnson asked Mr. Harkless to answer two questions: (1) what specific remedy he awarded in the initial arbitration, and (2) whether he bifurcated the original arbitration proceedings such that further arbitration was warranted on the issue of layoffs. Order of March 21, 1995 at 9. Mr. Harkless accepted post-remand briefs from the parties. Local 2, in its submission dated May 12, 1995, stated its "belief" that "the NFLPA should have the option of agreeing to have remaining issues heard by this Arbitrator (to which Local 2 hereby consents), or to go through a fresh arbitrator selection process." NFLPA did not respond to Local 2's "belief."

 On July 14, 1995, Arbitrator Harkless ruled. He found that Local 2 and NFLPA had agreed in 1988 that he would decide both the layoff grievances and the discharge grievances. He also found that Local 2 and NFLPA had agreed shortly before his November 1988 hearing to bifurcate the proceedings: the parties would proceed first with the discharge claim; if he decided that the discharges were not for just cause, they would address the layoff grievances later. In his July 14, 1995 ruling, Arbitrator Harkless found that he still had jurisdiction and that Local 2 had not waived its right to proceed with the layoff grievances.

 After that ruling the parties agreed to engage in mediation before Mr. Harkless. On August 10, 1995, the parties signed a mediation agreement providing inter alia that if mediation efforts were unsuccessful, the "grievances would proceed expeditiously to arbitration." The agreement also stated that Mr. Harkless, in his role as mediator, could meet separately with the parties and their counsel.

 The mediation effort failed. NFLPA then asked Arbitrator Harkless to remove himself from the case, implying in its request that, because Mr. Harkless had met with both parties separately during the mediation, he could no longer serve effectively as an arbitrator. NFLPA stated that it now "wanted to accept the offer made by Local 2 in its May 12, 1995 submission that further proceedings in this matter be conducted, at the NFLPA's option, before another arbitrator . . . ."

 Local 2 opposed NFLPA's request. Local 2 pointed out that Arbitrator Harkless's removal would frustrate the parties' agreement to proceed promptly to arbitration if mediation should prove unsuccessful. In any event, Local 2 argued, its original suggestion that NFLPA might choose a new arbitrator was foreclosed by the arbitrator's July 14, 1995 ruling that he had retained jurisdiction over all the grievances.

 Arbitrator Harkless rejected NFLPA's request that he recuse himself and set the matter for hearing on November 29, 1995. NFLPA made three more requests that Arbitrator Harkless remove himself from the case and then, on November 22, 1995, filed this suit. Counsel for NFLPA wrote directly to Mr. Harkless on November 28, 1995, reiterating NFLPA's position that it did not agree to his serving as an arbitrator and that he had no authority or jurisdiction to proceed. ...

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