Mr. Black admits that he was aware of and freely agreed to the
arbitration terms contained in the regulations, and he makes no
allegation about infirmities in the drafting of the regulations.
As Aviall makes clear, it is of no moment that Mr. Black did
not have a hand in the structuring of the arbitration process.
See Aviall, 110 F.3d at 896. An NFL-selected arbitrator may
have an incentive to appease his or her employer, but "[t]he
parties to an arbitration choose their method of dispute
resolution, and can ask no more impartiality than inheres in the
method they have chosen." Merit Ins. Co. v. Leatherby Insurance
Co., 714 F.2d 673, 679 (7th Cir. 1983). Mr. Black's peremptory
challenge to the neutrality of the NFLPA arbitrator must
accordingly be rejected. "He remains free to challenge on the
ground of evident partiality any [penalty] ultimately" approved
through arbitration. Aviall, 110 F.3d at 897.
D. Second Amended Complaint
Mr. Black's proposed second amended complaint sets forth new
claims of defamation and trade disparagement. It is well settled
that "a liberal, pro-amendment ethos dominates the intent and
judicial construction of Rule 15(a)." Moore's Federal Practice §
15.14. It is also true, however, that "[a] motion to amend
the [c]omplaint should be denied as `futile' if the complaint as
amended could not survive a motion to dismiss." FDIC v.
Bathgate, 27 F.3d 850, 874-76 (3d Cir. 1994); Graves v. United
States, 961 F. Supp. 314, 317 (D.C. 1997) (citing 6 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 1487 (2d ed. 1990)).
Defamation claims are subject to a "heightened pleading
standard." See Wiggins v. Philip Morris, Inc., 853 F. Supp. 458,
466 (D.C. 1994). To survive a motion to dismiss, "[a]ll
averments of defamation must be plead with particularity." Id.
at 465. Conclusory statements averring defamation "are
insufficient to state a claim," Hoffman v. Hill and Knowlton,
Inc., 777 F. Supp. 1003, 1005 (D.C. 1991), and defamation
plaintiffs should therefore plead the time, place, content,
speaker and listener of the alleged defamatory matter. See
Wiggins v. Equifax, 848 F. Supp. 213, 223 (D.C. 1993).
In his second amended complaint, Mr. Black does not set forth
his defamation claims with the specificity required to withstand
a motion to dismiss. See Wiggins, 853 F. Supp. at 465-66
(dismissing plaintiffs defamation claims as too vague and
imprecise); Hoffman, 777 F. Supp. at 1005 (dismissing
plaintiffs defamation claims as "based on inference and
conjecture"). Rather, he makes generalized and conclusory
allegations about statements made "by NFLPA representatives at
 NFLPA Players Representatives meeting[s] . . . to the effect
that" Mr. Black was a "bad and corrupt agent" who had engaged in
"illegal activities." Second Am. Compl. ¶¶ 27-28. Mr. Black
presents no "factual allegations" that defamatory statements
were actually made, let alone what they were and who made them.
Mr. Black's one reference to a specific publication does not
withstand even modest scrutiny. The charge is that "the NFLPA,"
in a February 8-14, 1999, edition of Street & Smith's Sports
Business Journal, stated that "Black tried to bribe an LSU
assistant football coach." In fact, the article states that the
"Union President . . . wouldn't comment on the Black
investigation." See Ex. A to Def.'s Opp'n. No reasonable juror
could determine that "no comment" is defamatory. Because none of
Mr. Black's defamation claims could survive a motion to dismiss,
they are "futile" for the purpose of a second Rule 15(a)
The trade disparagement claim in plaintiffs' proposed second
amended complaint, see ¶¶ 63-66, depends for its legal
sufficiency on the presence of defamatory
statements, so it, too, is futile.*fn5 An appropriate order
accompanies this memorandum.
For the reasons set forth in the accompanying memorandum, it
is this 1st day of February 2000,
ORDERED that defendant's motion to dismiss or for summary [#
23] is granted in part and denied in part. And it is
FURTHER ORDERED that plaintiffs' motion for leave to file a
second amended complaint [# 25] is denied.