While the parties strongly dispute what standards apply in reviewing determinations of League discipline under Article 46 of the NFL-NFLPA collective bargaining agreement, the legal standards are not outcome determinative in this case, which turns on the facts. 8 Nonetheless, I am persuaded that Article 46 does not contain a just cause provision, either explicit or implied. Where a collective bargaining agreement is silent on just cause, arbitrators often find that such a provision is implied. See In re J&J Maintenance Inc., 121 Lab. Arb. 847, 855 (2005). The CBA between the NFL and the NFLPA, however, is not silent on the matter; it explicitly includes just cause in the Club discipline provisions of Article 43. This inclusion demonstrates that the parties knew how to include such a provision when it was bargained for, bolstering the conclusion that it should not be read into Article 46. Even accepting that Article 46 does not contain a just cause provision and thus is not subject to the attendant standards of industrial due process, such as “double discipline” and “disparate treatment,” discipline under the Article must be fair and consistent. The NFL does not dispute this proposition. Tr. 164:25-165:6 (Goodell); 385:2-386:13 (Birch); see also Bounty, Final Decision, at 4 (Dec. 11, 2012); Exhibit 33 at NFL_RICE-000128. For me, this means that discipline determinations under Article 46 should be reviewed to determine whether the Commissioner abused his discretion, that is, whether his determination was arbitrary or capricious. Where the imposition of discipline is not fair or consistent, an abuse of discretion has occurred.
