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Case: 17-40936 Document: 00514173931 Page: 1 Date Filed: 09/27/2017

JEFFREY L. KESSLER
Partner
(212) 294-4698
jkessler@winston.com

September 27, 2017

VIA ECF

Honorable Edward C. Prado, Jennifer Walker Elrod & James E. Graves, Jr.
United States Court of Appeals for the Fifth Circuit
600 Camp Street
New Orleans, LA 70130

Re: National Football League Players Association v. National Football League, et al.,
Case No. 17-40936

Dear Judges Prado, Elrod, and Graves:

On behalf of itself and Ezekiel Elliott, Appellee NFLPA (or “Union”) submits this response
to the Court’s September 22 request for letters “on the issue of whether the district court had sub-
ject matter jurisdiction, and what would be the consequences.”

1. The Union’s Allegation That The NFL Breached The CBA Was Sufficient To Vest
The District Court With Subject Matter Jurisdiction. Under the plain terms of the LMRA and
this Circuit’s precedent applying the statute, the district court had jurisdiction over the Petition
upon its filing. Section 301 of the LMRA provides district courts with subject matter jurisdiction
over “[s]uits for violation of contracts between an employer and a labor organization” where there
is “(1) a claim of violation of (2) a contract (3) between an employer and a labor organization.”
Carpenters Local Union No. 1846 of United Bhd. of Carpenters & Joiners of Am., AFL-CIO v.
Pratt-Farnsworth, Inc., 690 F.2d 489, 500 (5th Cir. 1982); see 29 U.S.C.A. § 185(a), (c).

As this Court has recently reaffirmed, “an alleged violation” of a CBA is all that is required
to “satisf[y] section 301(a)’s jurisdictional requirement.” Houston Ref., L.P. v. United Steel, Paper
& Forestry, Rubber, Mfg., 765 F.3d 396, 403 (5th Cir. 2014); see also id. at 405-06 (“[T]he alleged
violation of a labor contract is both necessary and sufficient to invoke federal subject-matter juris-
diction under section 301(a) of the [LMRA].”). Indeed, “a party alleging a labor contract violation
passes through the [LMRA’s] jurisdictional ‘gateway,’” and even if it is later determined that the
purported labor contract is “non-existent or invalid, [the Court] must dismiss for failure to state a
claim, not for lack of jurisdiction.” Id. at 403 (emphasis added). The NFL’s submissions to this
Court never answer this black-letter labor law.

Here, the district court correctly held that the NFLPA’s “allegations that the NFL withheld
evidence from the NFLPA and Elliott” sufficiently pled that the NFL “breached [its] obligations”
under the “required procedures specified in the CBA.” PI Order 7, 8. Under Houston Refining
Case: 17-40936 Document: 00514173931 Page: 2 Date Filed: 09/27/2017

and Carpenters, nothing more was required to establish jurisdiction under Section 301 at the time
when the Petition was filed.

2. Exhaustion Of Remedies Is A Prudential Consideration, Not A Jurisdictional Pre-
requisite. The NFL has repeatedly argued that “jurisdiction under the LMRA does not arise until
the employee has exhausted contractual procedures for redress.” E.g., NFL Mot. 10 (internal quo-
tation marks omitted and emphasis added); id., Section I (“The NFL Is Likely To Prevail On Ap-
peal Because The District Court Plainly Lacked Subject-Matter Jurisdiction Over This Case.”)
(emphasis added). The NFL now retreats, arguing that “whether the LMRA’s exhaustion require-
ment goes to subject-matter jurisdiction … is immaterial.” NFL Reply 3. The NFL is right to
backtrack, but the distinction is far from “immaterial.” “If [a statutory requirement] is a jurisdic-
tional requirement, it deprives federal courts of jurisdiction to consider excusing a failure to ex-
haust administrative remedies. If the provision codifies a jurisprudential requirement, however, it
merely continues the self-imposed doctrine of judicial restraint, leaving the federal courts with
jurisdiction to consider excusing a failure to exhaust administrative remedies.” Dawson Farms,
LLC v. Farm Serv. Agency, 504 F.3d 592, 602 (5th Cir. 2007) (addressing “whether 7 U.S.C. §
6912(e) is a jurisdictional or jurisprudential requirement for the exhaustion of administrative rem-
edies”).

The LMRA, by its plain text, does not require exhaustion. And in the “absence of a statu-
tory requirement of exhaustion of administrative remedies, the jurisprudential doctrine of exhaus-
tion controls.” Williams v. J.B. Hunt Transp., Inc., 826 F.3d 806, 810 (5th Cir. 2016); see also
Gulf Restoration Network v. Salazar, 683 F.3d 158, 171-72 (5th Cir. 2012) (agreeing that “a re-
quirement” to “exhaust … administrative remedies before seeking judicial review” is “not a juris-
dictional limitation, but rather is a jurisprudential provision”).

The Court’s statement in Meredith v. Louisiana Federation of Teachers, without any anal-
ysis, that “[f]ederal courts lack jurisdiction to decide [LMRA] cases … unless the employee has
exhausted contractual procedures for redress,” 209 F.3d 398, 402 (5th Cir. 2000), is, at best, the
type of “‘drive-by jurisdictional ruling[]’ that should be accorded ‘no precedential effect’ on the
question whether the federal court had authority to adjudicate the claim in suit.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 511 (2006); see also E.E.O.C. v. Agro Distrib., LLC, 555 F.3d 462, 469 (5th
Cir. 2009). That statement was not even necessary to the Court’s holding, as the Court allowed
the plaintiff’s claim to proceed in the absence of exhaustion because the employer had “repudiated
the contractual procedures” it said should have been followed. Meredith, 209 F.3d at 402-03.

Meredith also held that the employer was “estopped from raising the defense of non-ex-
haustion” based on its contractual repudiation, id. at 402 (emphasis added)—a description that is
consistent with Supreme Court precedent. See Vaca v. Sipes, 386 U.S. 171, 185 (1967) (“the
employer is estopped by his own conduct”) (emphasis added). That holding confirms the exhaus-
tion rule is not jurisdictional, as “a lack of [federal] subject matter jurisdiction may not be waived
by the parties by consent, conduct, or even by estoppel.” See Sarmiento v. Tex. Bd. of Veterinary
Med. Examiners, 939 F.2d 1242, 1245 (5th Cir. 1991). Even apart from Arbaugh and its progeny,
therefore, this Court’s rule of orderliness would not compel the Court to conclude that the lone
statement from Meredith invoked by the NFL defeats subject-matter jurisdiction here.

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Meredith’s application of an equitable exception to the exhaustion doctrine itself demon-
strates that the Court there did not consider exhaustion to be anything more than a prudential re-
quirement. Yet the NFL simply ignores all of this. It does not so much as acknowledge this
important limitation of Meredith, its leading authority on this point (NFL Mot. 10-11; NFL Reply
2-3), much less address Arbaugh and the other intervening Supreme Court and Fifth Circuit prec-
edent cited in the NFLPA’s opposition brief and the district court’s stay opinion.

Indeed, several authorities cited by the NFL below specifically confirm that exhaustion
under the LMRA is a prudential, non-jurisdictional limitation. In Union Switch & Signal Div. Am.
Standard Inc. v. United Elec., Radio & Mach. Workers of Am., Local 610, for example, the Third
Circuit held that “the complete arbitration rule, while a cardinal and salutary rule of judicial ad-
ministration, is not a limitation on a district court’s jurisdiction.” 900 F.2d 608, 612 (3d Cir. 1990).
Similarly, in Millmen Local 550, United Bhd. of Carpenters & Joiners of Am. v. Wells Exterior
Trim, the Ninth Circuit explained that “[e]ven if the arbitrator’s determination of liability in this
case is not a final and binding award, review of the determination might nevertheless be available
should the circumstances warrant.” 828 F.2d 1373, 1377 (9th Cir. 1987) (emphasis added); see
also id. at 1375 (in certain cases, “judicial review of a nonfinal award [will] be proper”). Seventh
and First Circuit precedent are to the same effect: “A suit to set aside an arbitration award under
section 301 of the Taft–Hartley Act is a suit for breach of contract, the contract being the arbitration
clause of the collective bargaining agreement; and the suit is ripe as soon as the breach is defini-
tive.” Dreis & Krump Mfg. Co. v. Int’l Ass’n of Machinists & Aerospace Workers, Dist. No. 8,
802 F.2d 247, 251 (7th Cir. 1986) (emphasis added); see also Hayes v. New England Millwork
Distribs., Inc., 602 F.2d 15, 18 (1st Cir. 1979) (“full exhaustion is not inevitably required by a
court before it will exercise its jurisdiction under § 301”).

3. Exhaustion Is Satisfied Here. It has long been recognized that the general exhaustion
rule “is subject to a number of exceptions for the variety of situations in which doctrinaire appli-
cation of the exhaustion rule would defeat the overall purposes of federal labor relations policy.”
Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 329-30 (1969). Exceptions are necessary
to prevent “injustice” where the “contractual remedies” “prove unsatisfactory or unworkable for
the individual grievant”—including “when the conduct of the employer amounts to a repudiation
of those contractual procedures,” or where the employee “has been prevented from exhausting his
contractual remedies” by a “wrongful refusal to process the grievance.” Vaca, 386 U.S. at 185-
86; see also Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965). Other circumstances in
which exhaustion is not required include situations where further proceedings would be “futile.”
Rabalais v. Dresser Indus., Inc., 566 F.2d 518, 519 (5th Cir. 1978).

Here, the district court acted well within its discretion in holding that (i) the employer re-
pudiation exception eliminated Appellees’ need to exhaust; and (ii) Appellees exhausted the non-
jurisdictional requirement in any event, because there were no actions left for the NFLPA and
Elliott to take once the Arbitrator rendered what the NFL concedes were “definitive,” “final and
. . . binding” rulings (NFL Mot. 4; NFL Reply 5) rejecting evidentiary requests that were “pertinent
and material” to conducting a fundamentally fair hearing. See PI Order 14, 18; E.D. Tex. Stay
Order 9; FAA, 9 U.S.C. § 10(a)(3). Moreover, as the district court noted, any purported exhaustion
deficiency has since been cured given that the arbitrator “issued his final award.” PI Order 12.

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The district court’s detailed findings excusing exhaustion pursuant to the long-established
employer repudiation exception, among other equitable considerations, were plainly correct and
consistent with the holdings of this Circuit’s sister courts. PI Order 7-8; E.D. Tex. Stay Order 6-
7; e.g., Hayes, 602 F.2d at 19 (repudiation exists where employer “frustrated the grievance pro-
cess”). Indeed, “[i]nsist[ing]” that the NFLPA and Elliott wait for the arbitrator to issue the award
in favor of the NFL would only have “prolong[ed] the deprivation of rights” that the NFLPA had
alleged. Glover, 393 U.S. at 331. This is especially so where, as here, the district court found that
Elliott faced imminent and irreparable harm from a fundamentally unfair arbitration process, yet
still did not issue its preliminary injunction until after the award came down.

The NFL’s assertion that “the exhaustion rule is mandatory and cannot be excused by later
developments” (NFL Reply 3) is foreclosed by its own authorities, both of which recognize the
well-established exceptions to the exhaustion rule (including employer repudiation), but merely
find them inapplicable on the different facts of those cases. See Kaiser v. U.S. Postal Serv., 908
F.2d 47, 49 (6th Cir. 1990); Macon v. Youngstown Sheet & Tube Co., 698 F.2d 858, 860 (7th Cir.
1983). And while the NFL claims that the arbitrator’s undisputedly “definitive” procedural rulings
do not “excuse” the lack of a final award (NFL Reply 5), the out-of-circuit case it cites for this
proposition concerned an “interim award [that] did not decide any of [petitioner’s] claims.”
Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 413 (2d Cir. 1980). Finally, the NFL’s au-
thority for the proposition that the repudiation exception does not apply (United Slate v. G & M
Roofing, 732 F.2d 495, 500-01 (6th Cir. 1984)) bears no resemblance to the facts of this case.
Specifically, the employer here had already suppressed evidence—with the arbitrator’s approval—
and there was nothing left for Appellees to exhaust, given the definitive and final rulings already
made by the arbitrator, who issued his formal award before any injunction issued. In short, there
is no plausible claim that something further needed to be done to satisfy the exhaustion rule here,
or that any labor policy would have been served by requiring the NFLPA to file a new petition
alleging the same facts and seeking the same relief the moment after the award was issued.

4. Decades of Labor Policy Support The District Court’s Determination That The Ex-
haustion Doctrine Did Not Bar Relief Here. Unable to withstand the clear import of decades of
case law showing that the exhaustion doctrine is not jurisdictional and confirming that exhaustion
was satisfied here in any event, the NFL will likely contend that recognizing jurisdiction here will
open up any and all procedural rulings in labor arbitrations nationwide to mid-arbitration inspec-
tion by the federal courts. That is demonstrably wrong. The narrow but important exceptions to
the exhaustion doctrine applied by the district court are neither new nor expansive. And exhaustion
under the LMRA has always been a context-sensitive doctrine that yields in the face of inequity.
Cf., e.g., Vaca, 386 U.S. at 185. The courts have long recognized that the exhaustion principle
does not relieve them of their duty to step in when there is a demonstrated absence of fundamental
fairness. For example, it is well established that employees may bring Section 301 claims without
further exhaustion where, as here, the “circumstances . . . have impugned the integrity of the arbi-
tration process . . . .” Ramirez-Lebron v. Int’l Shipping Agency, Inc., 593 F.3d 124, 131 (1st Cir.
2010) (emphasis in original); see also, e.g., Castaneda v. Dura-Vent Corp., 648 F.2d 612, 619 (9th
Cir. 1981).

The district court’s rulings thus respect established precedent applying the exhaustion doc-
trine and its exceptions. It is the NFL’s position that would upset the status quo by converting

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exhaustion into an inflexible jurisdictional limitation that blocks any and all judicial relief prior to
the issuance of an arbitration award, even in the most extreme circumstances—such as those that
the district court found here, where, at the time of filing, the employer had repudiated the grievance
process, all fairness objections had been raised and “definitive[ly]” ruled upon, the arbitral record
had closed, and the petitioner faced irreparable harm from the imminent award. In these narrow
and egregious circumstances, the district court correctly found that “[t]he NFLPA had no further
action to take.” PI Order 9.

5. The NFLPA and Elliott Satisfied the Exhaustion Requirement Even If Considered
Jurisdictional. Finally, even if this Court were to find that exhaustion is jurisdictional, the district
court—for the reasons described herein and in the district court’s preliminary injunction and stay
decisions—correctly found that the NFLPA and Elliott had in fact exhausted their remedies under
the particular facts of this case. PI Order 8-9; E.D. Tex. Stay Order 5-7. At the time the Petition
was filed, the rulings of the arbitrator that were challenged under the fundamental fairness doctrine
were definitive, final, and binding, all procedures and remedies had been exhausted, and there was
nothing left for the NFLPA to do except brace for the imminent award.

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Respectfully Submitted,

/s/ Jeffrey L. Kessler
ANDREW S. TULUMELLO JEFFREY L. KESSLER
Gibson, Dunn & Crutcher LLP Counsel of Record
1050 Connecticut Avenue, N.W. DAVID L. GREENSPAN
Washington, D.C. 20036 JONATHAN J. AMOONA
(202) 955-8657 ANGELA A. SMEDLEY
atulumello@gibsondunn.com Winston & Strawn LLP
200 Park Avenue
New York, NY 10166
(212) 294-6700
DAVID FOLSOM jkessler@winston.com
Jackson Walker LLP dgreenspan@winston.com
6002 Summerfield jamoona@winston.com
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(903) 255-3251 THOMAS M. MELSHEIMER
dfolsom@jw.com Winston & Strawn LLP
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DAVID T. MORAN 17th Floor
Jackson Walker LLP Dallas, TX 75201
2323 Ross Ave. (214) 453-6500
Suite 600 tmelsheimer@winston.com
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(214) 953-6051 STEFFEN N. JOHNSON
dmoran@jw.com Winston & Strawn LLP
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Washington, DC 20006
(202) 282-5000
sjohnson@winston.com

Counsel for Appellee
National Football League Players Association

cc: All counsel of record (via ECF)

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