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i ________________________________________ IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA ________________________________________ NATIONAL HOCKEY LEAGUE, Petitioner, v. MICHAEL SCOTT and NATIONAL HOCKEY LEAGUE PLAYER’S ASSOCIATION, Respondents. __________________________________________ ON WRIT OF CERTIORARI TO THE APPELLATE COURT OF TULANIA _______________________________________ BRIEF OF RESPONDENTS MICHAEL SCOTT and NATIONAL HOCKEY LEAGUE PLAYER’S ASSOCIATION _______________________________________ BRIEF NO. 22

BRIEF OF RESPONDENTS MICHAEL SCOTT and … · Restatement [Second] of Torts § 874, Comment a ..... 19 . 1 STATEMENT OF JURISDICTION This is an appeal from a judgment by the Tulania

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i

________________________________________

IN THE

SUPREME COURT OF THE

UNITED STATES OF AMERICA ________________________________________

NATIONAL HOCKEY LEAGUE,

Petitioner,

v.

MICHAEL SCOTT and

NATIONAL HOCKEY LEAGUE PLAYER’S

ASSOCIATION,

Respondents.

__________________________________________

ON WRIT OF CERTIORARI TO THE APPELLATE COURT OF

TULANIA

_______________________________________

BRIEF OF RESPONDENTS MICHAEL SCOTT and NATIONAL HOCKEY

LEAGUE PLAYER’S ASSOCIATION

_______________________________________

BRIEF NO. 22

ii

TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................................................. ii

TABLE OF AUTHORITIES ........................................................................................................... iv

STATEMENT OF JURISDICTION ................................................................................................. 1

STATEMENT OF ISSUES............................................................................................................... 2

STATEMENT OF THE CASE ......................................................................................................... 2

I. The Policy…………………………………………………………………………2

II. SuperDope ………………………………………………………………………..3

III. Scott's Violation of the Policy ……………………………………………………4

IV. Procedural History ……………………………………………………………..…5

SUMMARY OF ARGUMENT ......................................................................................................... 5

STANDARDS OF REVIEW ............................................................................................................. 6

ARGUMENT ................................................................................................................................... 6

I. Scott’s claim that the NHL violated DATWA is not preempted by Section 301 of

the LMRA because Minnesota’s statutory law created nonnegotiable rights that

are independent of obligations found in a collective bargaining

agreement…………………………………………………………………………… 6

a. Scott’s DATWA claim is not preempted by LMRA’s § 301 because Scott does not

allege a breach of the CBA or any right created by the contract. …………………. 8

b. Scott’s DATWA claim is not preempted by LMRA’s § 301 because DATWA creates

an independent nonnegotiable right that does not require CBA

interpretation……………………………………………………………………………. 10

1.Scott’s DATWA claim is not premised on a negotiable right covered by a

state common law causes of action requiring interpretation of the

CBA……………………………………………………………………... 11

iii

2.Scott’s DATWA claim is premised on an independent nonnegotiable right

and its obligations are governed by state statutory law. …………………12

II. The arbitration award in this case is contrary to New York’s law governing

fiduciary duties, going so far as to condone the breach of such duty by Schrute

and the NHL……………………………………………………………………….. 17

a. This Court overturns arbitration awards which are contrary to Public

Policy……………………………………………………………………………………... 17

b. New York recognizes a Fiduciary Duty………………………………………………. 19

c. A Fiduciary Relationship existed between Schrute and the players who were part

of the collective bargaining agreement……………………………………………… 21

CONCLUSION .............................................................................................................................. 24

iv

TABLE OF AUTHORITIES

Cases

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985) ..................................... 6, 10, 11, 12, 13

Anderson v. Ford Motor Co., 803 F.2d 953, 956 (8th Cir. 1986) ......................................... 6, 7, 12

Atwater v. NFL Players Ass’n, 626 F.3d 1170 (11th Cir. 2010)............................................. 11, 12

Avco Corp. v. Machinists, 390 U.S. 557 (1968) ............................................................................. 8

Bale v. General Telephone Co., 795 F.2d 775 (9th 1986) ........................................................ 9, 12

Bogan v. GMC, 500 F.3d 828, 832 (8th Cir. 2007) .................................................................... 7, 9

Callhan v. Callhan, 127 A.D.2d 298, 300 (N.Y. App. Div. 1987) ............................................... 20

Caterpillar, Inc. v. Williams, 482 U.S. 386, 396 (1987) ....................................................... 7, 8, 11

Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962) ....................................................... 8, 10

Cramer v. Consol. Freightways, Inc., 255 F.3d 683 (9th Cir. 2001) ............................ 7, 11, 12, 13

DeCoe v. General Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994) ............................................... 7

Dineen v. Wilkens, 64 N.Y.S.3d 56, 58 (N.Y. App. Div. 2017) ................................................... 19

E. Associated Coal Corp. v. United Mine Workers, 531 U.S. 57, 63 (2000) ............................... 18

EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19; (2005) .................................................. 19

Electrical Workers v. Hechler, 481 U.S. 851, 859, n. 3 (1987) ...................................................... 6

Gibbons v. Ogden, 22 U.S. 1 (1824) ............................................................................................... 6

Gore v. TWA, 210 F.3d 944, 950 (8th Cir. 2000) ................................................................... 10, 11

Grandson v. Merrill Lynch & Co., 147 F.3d 184, 189 (2d. Cir. 1988) ......................................... 20

Hawaiian Airlines v. Norris, 512 U.S. 246, 258 (1994) ........................................................... 9, 13

Holmes v. NFL, 939 F. Supp. 517, 527(N.D. Tex. 1996) ............................................................. 12

Int’l Broth. of Elec. Workers, AFL-CIO v. Hechler, 481 U.S. 851 (1987) ................................... 12

v

Int'l Bhd. of Elec. Workers, Local 97 v. Niagara Mohawk Power Corp., 143 F.3d 704, 716 (2d

Cir. 1998) .................................................................................................................................. 19

Karnes v. Boeing, 335 F.3d 1189, 1194 (10th Cir. 2003) ............................................................. 14

Kaufman v. Cohen, 307 A.D.2d 113, 125 ..................................................................................... 20

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409-13 (1988) ................. 7, 9, 10, 13

Livadas v. Bradshaw, 512 U.S. 107, 123 (1994) .............................................................. 10, 11, 13

Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Lucas Flour Co., 369

U.S. 95, 103 (1962) ................................................................................................................. 6, 8

Miner v. Local # 373, Int’l Bhd. Of Teamsters, 513 F.3d 857, 860 (8th Cir. 2008) ....................... 6

Missouri P.R. Co. v. Norwood, 283 U.S. 249, 258 (1931) ........................................................... 13

People ex rel. Cuomo v. Coventry First LLC, 13 N.Y.3d 108, 115 (2009) .................................. 19

Rivet v. Regions Bank, 522 U.S. 470, 475 (1998) ......................................................................... 10

Saul v. Cahan, 153 A.D.3d 947, 61 N.Y.S.3d 265 ....................................................................... 19

Stringer v. NFL, 474 F.Supp. 894, 899 (S.D. Ohio 2007) .................................................. 7, 11, 12

Terminal R. Asso. V. Brotherhood of R. Trainmen, 318 U.S. 1 (1943) ........................................ 13

Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 451 (1957) ............................................... 6

Thompson v. Hibbing Taconite Holding Co., 2008 U.S. Dist. LEXIS 87045, 11-12 (D.C. Minn.

2009) ..................................................................................................................................... 8, 14

Tri–Star Light. Corp. v. Goldstein, 151 A.D.3d 1102, 1107 ........................................................ 20

Trustees of the Twin City Bricklayers Fringe Benefits Funds v. Superior Waterproofing, Inc., 450

F.3d 324, 331 (8th Cir. 2006) ............................................................................................... 8, 12

United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 42 (1987) ................... 17

United Steelworkers of America v. Rawson, 495 U.S. 362 (1998) ........................................... 8, 12

vi

Utility Workers of America, Local No. 246 v. Southern California Edison Co., 852 F.2d 1083

(9th Cir. 1988) ............................................................................................................................. 7

W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766, (1983) ........................................ 17, 19

Williams v. NFL, 582 F.3d 863, 874 (8th Cir. 2009) ................................................................ 7, 14

Statutes

28 U.S.C. § 1254 ............................................................................................................................. 1

28 U.S.C. § 1291 ............................................................................................................................. 1

28 U.S.C. § 1331 ............................................................................................................................. 1

29 U.S.C. § 185(a) .......................................................................................................................... 1

Minn. Stat. Ann. § 181.950 (2012) ............................................................................................ 5, 12

Other Authorities

Restatement [Second] of Torts § 874, Comment a ....................................................................... 19

1

STATEMENT OF JURISDICTION

This is an appeal from a judgment by the Tulania Court of Appeals reversing the United

States District Court for the Southern District of Tulania’s grant of summary judgment in favor of

the Appellant, which required preemption of Respondent’s claim alleging NHL’s violation of

Minnesota’s Drug and Alcohol Testing in the Workplace Act (“DATWA”) and affirmed the

arbitrator’s suspension.

Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), states

that “[s]uits for violation of contracts between an employer and a labor organization representing

employees in an industry affecting commerce … may be brought in any district court of the United

States having jurisdiction of the parties, without respect to the amount in controversy or without

regard to the citizenship of the parties.” Section 301’s applicability to the claim before the bar

raises a federal question. Further, 28 U.S.C. § 1331 provides for Federal Question jurisdiction as

within the purview of the district courts. Thus, the United States District Court for the Southern

District of Tulania had original jurisdiction over these claims. Pursuant to 28 U.S.C. § 1291, “The

courts of appeals … shall have jurisdiction of appeals from all final decisions of the district courts

of the United States.” Therefore, as the United States District Court for the Southern District of

Tulania is within the confines and scope of the Tulania Court of Appeals, jurisdiction was proper

for the appellate action.

28 U.S.C. § 1254, provides that the Supreme Court of the United States may review cases

from the Federal Courts of Appeals, “[b]y writ of certiorari granted upon the petition of any party

to any civil or criminal case, before or after rendition of judgment or decree.” Thus, this Court has

jurisdiction over the case at bar pursuant to the writ of certiorari.

2

STATEMENT OF ISSUES

1. Whether the Court of Appeals correctly held that a National Hockey League player’s

claims under Minnesota’s Drug and Alcohol Testing in the Workplace Act (“DATWA”)

challenging a suspension under a collectively bargained for drug policy are not preempted

by Section 301 of the Labor Management Relations Act.

2. Whether the Court of Appeals correctly set aside an arbitrator’s award sanctioning the

National Hockey League’s refusal to issue specific product warnings regarding the

presence of a banned substance in a dietary supplement because such an award violated

public policy.

STATEMENT OF THE CASE

This Court has granted review of an appeal filed by Petitioner, National Hockey League

(“NHL”), requesting that the judgment of the Tulania Court of Appeals be reversed and the

judgement of the United States District Court for the Southern District of Tulania be validated.

Respondent, Michael Scott (“Scott”), is an employee of the Minnesota Wild, L.L.C., and a member

of the National Hockey League Player’s Association (“NHLPA”). (R. at 3). The NHL and the

NHLPA entered into a Collective Bargaining Agreement (“CBA”) in 2013, that included, among

other facets, the NHL policy governing steroid and substances usage (the “Policy”). (Id.).

I. The Policy

The Policy prohibits NHL players from using certain prohibited substances; among these

prohibited substances are performance enhancing drugs, and masking agents such as Narcotussin.

(R. at 3). The Policy provides that players are personally responsible for what enters their bodies

and notes that positive test results will not be excused for lack of awareness that a player may have

3

taken a prohibited substance. (Id.). Per the Policy, positive test results will be subject to discipline

by the NHL commissioner. (Id.). The Policy establishes that a first offense for violating the Policy

includes suspension for anywhere between twenty and twenty-five games, and it further provides

for the right of a player to appeal to the commissioner, or an arbitrator that is either the

commissioner or his designee. (Id.). The Policy’s testing procedure is administered by Dr. Dwight

K. Schrute (“Schrute”). (Id.). Schrute’s duties include overseeing testing procedures, making

determinations regarding the methods of testing, educating players on the Policy’s implementation,

and reporting positive results to the Commissioner. (R. at 4). Dr. Jim Halpert (“Halpert”) aids in

implementing the Policy as a Consulting Toxicologist; neither Halpert nor Schrute are affiliated

with the NHL. (Id.).

II. SuperDope

Around 2013, the NHL became aware that SuperDope, a sleep relaxation supplement,

contained Narcotussin, which is a banned substance under the Policy. (R. at 4.). Despite

SuperDope’s label not disclosing Narcotussin as an ingredient; Schrute was aware of Narcotussin’s

presence in SuperDope, and he informed several colleagues. (Id.). Following analysis by Halpert,

Phyllis Vance, the NHL Vice President of Law and Labor Policy, was made aware of the

connection between Narcotussin and SuperDope. (Id.). The NHL subsequently refused to report

this information to the Food and Drug Administration. (Id.).

The NHL notified the NHLPA that the distributor of SuperDope, Dunder Mifflin, had been

listed as a banned company that players, and teams, were henceforth prohibited from doing

business with. (Id.). The NHLPA notified players by email of Dunder Mifflin’s status, and Halpert

notified players via a memorandum warning them to avoid taking substances that aided in sleep

4

relaxation. (Id.). Strikingly absent from Halpert’s memorandum was any specific mention of

SuperDope, or its connection with the banned substance Narcotussin. (Id.).

III. Scott’s Violation of the Policy

Scott took SuperDope prior to a preseason scrimmage, and shortly after, was drug tested

pursuant to the Policy’s provisions. (Id.). Scott tested positive for Narcotussin and was

subsequently suspended for twenty games. (Id.). Three other NHL players also tested positive for

Narcotussin and were similarly disciplined. (Id.). Respondent, the other three players, and the

NHLPA appealed the suspension’s pursuant to the Policy’s appeals provision. (Id.).

None of the players disputed the positive tests results during the arbitration proceedings.

(Id.). All conceded that they were aware of the warnings regarding sleep aids and that the Policy

required players to be responsible for their own bodies. (Id.). However, the players argued that the

positive results should be excused because Schrute, and the NHL, knew that SuperDope contained

Narcotussin, but failed to disclose this fact to NHL players. (R. at 5). Further, the players argued

that the Policy created a duty requiring NHL officials to explicitly warn that SuperDope contained

Narcotussin. (Id.).

Following a full hearing, the arbitrator upheld the NHL’s suspension of Scott and the other

players. (Id.). The arbitrator’s decision was based on the Policy’s strict liability standard; the

players neither disputed their positive tests, nor disputed the validity of the laboratory results. (Id.).

The arbitrator determined that the strict liability standard of the Policy levied responsibility on the

players for substances found in their bodies, and that the Policy did not impose any obligation on

the NHL to specifically warn players of the specific contents within SuperDope. (Id.).

5

IV. Procedural History

Scott filed suit in Minnesota State Court against the NHL, and various other individuals.

(Id.). Scott alleged that the Policy violated Minnesota’s DATWA, Minn. Stat. Ann. § 181.950

(2012), and sought an injunction and damages. (Id.). The Minnesota State Court granted a

temporary injunction for Scott’s suspension, but this injunction did not apply to the other three

players as they were not employed in Minnesota. (Id.). The NHL removed the case to the United

States District Court for the Southern District of Tulania where it was consolidated with NHLPA’s

action seeking to vacate the arbitrator’s award. (Id.).

The NHL filed a motion for summary judgement and asserted that § 301 of the LMRA

preempted the DATWA claim and that the NHL had no duty to disclose that SuperDope contained

Narcotussin. (R. at 14). The District Court ruled that DATWA was preempted by § 301 because it

required interpretation of the CBA’s Policy, and the court found that the NHL and Schrute did not

violate public policy because Schrute warned players generally about sleep aid supplements, and

that it was within his discretion to warn generally, or specifically. (Id.). Scott and the NHLPA

appealed to the Tulania Court of Appeals, which found for them on both issues and reversed the

lower district court’s ruling. (R. at 20). The dispute now rests in the purview of the Supreme Court.

SUMMARY OF ARGUMENT

Scott’s claim that the National Hockey League violated Minnesota’s Drug and Alcohol

Testing in the Workplace Act is not pre-empted by Section 301 of the Labor Management

Relations Act because Minnesota’s statutory law created nonnegotiable rights that are independent

of obligations found in a collective bargaining agreement. Regardless of these facts the arbitrator’s

award in favor of the NHL should be overturned as it runs contrary to well established public

policy. New York law governs this question per the collective bargaining agreement and New

6

York has a clearly established fiduciary duty. This duty was breached by Schrute and the NHL.

The public needs strong protections in this arena and they have imposed them via their body of

law. The arbitrator in this case has no right to trample upon that wisdom. As such, this arbitrator’s

award should be overturned.

STANDARDS OF REVIEW

The Supreme Court will review both the DATWA claim and the arbitrator’s award de

novo. (R. at 1).

ARGUMENT

I. Scott’s claim that the NHL violated DATWA is not preempted by Section 301 of

the LMRA because Minnesota’s statutory law created nonnegotiable rights that

are independent of obligations found in a collective bargaining agreement.

The threshold for invoking federal jurisdiction under § 301(a) of the LMRA, requires the

existence of a valid contract between an employer and a labor organization. Miner v. Local # 373,

Int’l Bhd. Of Teamsters, 513 F.3d 857, 860 (8th Cir. 2008). Shortly after the passage of the LMRA,

the Supreme Court authorized federal courts to establish a common-law approach to interpret

CBAs under § 301. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 451 (1957).

Despite a long-standing recognition that federal law supersedes state law, see Gibbons v.

Ogden, 22 U.S. 1 (1824), it was not until 1962 that the Supreme Court expressly held that federal

common law preempts state contract law in CBA litigation. Local 174, Teamsters of Am. v. Lucas

Flour Co., 369 U.S. 95, 103-04 (1962). The Court expanded the scope of § 301’s preemption in

1985 to extend beyond claims founded directly on rights created by a CBA to include state-law

claims that are “substantially dependent upon” CBAs. Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 215 (1985) (ruling a state common-law based bad faith distribution claim was preempted by

§ 301); Electrical Workers v. Hechler, 481 U.S. 851, 859, n. 3 (1987); Anderson v. Ford Motor

7

Co., 803 F.2d 953, 956 (8th Cir. 1986).

Two years after Lueck, the Supreme Court curbed possible over-application of § 301 by re-

emphasizing that state law claims unrelated to the CBA are not preempted. Caterpillar, Inc. v.

Williams, 482 U.S. 386, 396 (1987) (rejecting the premise that all employment disputes involving

unionized employees shall be governed by a federal common law). Furthermore, defenses based

on the terms of a CBA do not necessarily raise a federal question when the complaint is

unequivocally based on a state granted right. Id. at 399. A year later, in Lingle v. Norge Division

of Magic Chef, Inc., the Court further empowered the sovereignty of state law by re-affirming that

states may provide substantive rights to parties irrespective of a CBA, and that these rights are not

preempted by § 301 unless they require interpretation of the CBA. 486 U.S. 399, 409-13 (1988)

(recognizing that both a state law claim and a CBA dispute may require addressing the same set

of facts).

Since the late 1980s the legal principles of § 301 have essentially remained unchanged

despite inconsistency in their application. See Cramer v. Consol. Freightways, Inc., 255 F.3d 683

(9th Cir. 2001); compare Utility Workers of America, Local No. 246 v. Southern California Edison

Co., 852 F.2d 1083 (9th Cir. 1988). There are two pathways for § 301 to preempt a claim when a

CBA exists between the parties: (1) the claim asserts a breach of a right established by the CBA,

or (2) the claim “substantially depends upon” interpretation of the contract because it is

“inextricably intertwined” with the CBA. Williams v. NFL, 582 F.3d 863, 874 (8th Cir. 2009);

Bogan v. GMC, 500 F.3d 828, 832 (8th Cir. 2007) Anderson, 803 F.2d at 956; DeCoe v. General

Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994); Stringer v. NFL, 474 F.Supp. 894, 899 (S.D. Ohio

2007). If a claim does not fit into either category, then it is not preempted by § 301. Id. Thus, it is

important to look to the “claim itself.” Williams, 582 F.3d at 873 (relying on Trustees of the Twin

8

City Bricklayers Fringe Benefits Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 331 (8th

Cir. 2006).

In the present case, Respondents neither dispute the existence of, nor the binding nature of

a CBA with the NHL. (R. 3). Under Miner, this is the initial starting point of a § 301 preemption

analysis. Furthermore, Respondents do not contest the validity of any long-settled law. In

accordance with Lueck’s holding, Respondents accept that § 301 preempts contractual disputes

arising from a CBA or disputes requiring substantial interpretation of the CBA.

a. Scott’s DATWA claim is not preempted by LMRA’s § 301 because Scott does not allege a

breach of the CBA or any right created by the contract.

The interpretation and application of rights founded on a CBA are preempted by § 301 and

rest entirely within the federal realm. United Steelworkers of America v. Rawson, 495 U.S. 362,

368 (1990). Section 301 “calls for uniform law” because a CBAs provisions may have varied

meanings under state and federal law, which would be disruptive to a federal labor scheme. Local

174, Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Lucas Flour Co., 369 U.S. 95,

103 (1962). The weight of the LMRA is so great that state-law causes of action claiming violations

of a CBA are entirely displaced. See Avco Corp. v. Machinists, 390 U.S. 557 (1968). However,

state courts can retain power over CBAs through concurrent jurisdiction, so long as they apply

federal law. See Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); Local 174, 369 U.S. at

95.

Plaintiffs can avoid § 301’s federal law mandate by alleging state based causes of action

unrelated to the CBA, Thompson v. Hibbing Taconite Holding Co., 2008 U.S. Dist. LEXIS 87045,

9 (D.C. Minn. 2009) (citing Caterpillar, Inc., 482 U.S. at 392), because CBAs are not necessarily

the “only source” of rights conferred upon employees. Hawaiian Airlines v. Norris, 512 U.S. 246,

9

258 (1994). This is true even if the claim’s elements are simultaneously addressed in the CBA. Id.

at 258 (obligations under federal law do not relieve a defendant of state-law based duties).

The Supreme Court rejected the “same analysis” preemption approach once employed by

lower courts. Lingle, 486 U.S. at 409; Bogan, 500 F.3d at 833; see also Bale v. General Telephone

Co., 795 F.2d 775 (9th 1986) (using “same analysis”). The “same analysis” test stands for the idea

that a state-based cause of action is preempted if the claim addresses the same facts as those that

could be asserted under a breach of a CBA. Lingle, 486 U.S. at 409. In dismissing this approach,

the Court recognized that such parallelism in analysis may exist, but it does not render the state-

law claim dependent on the CBA. Id. (Ҥ 301 preemption merely ensures that federal law will be

the basis for interpreting [CBAs], and says nothing about the substantive rights a state may provide

to workers.”).

In the present case, Scott’s DATWA claim is not an assertion that the CBA – or any right

created by it – has been breached. (R. at 5). If the CBA was challenged, then, in accordance with

United Steelworkers, § 301 would clearly mandate the application of federal law. However,

because Scott’s complaint asserts the violation of a state statute, DATWA, there is no reason to

prematurely require preemption. DATWA is neither a creature of the LMRA, nor is it a right

created by the CBA. DATWA stands on its own as a legally independent manifestation of

Minnesota’s legislative will.

Even the existence of the CBA’s Policy governing anabolic steroids and related substances

does not require Scott’s DATWA claim to be preempted. A cause of action regarding a breach of

the Policy and a claim based on the violation of DATWA may require the analysis of the same

facts, but Lingle made clear that this possibility does not require preemption of the state claim.

Even if the Policy – and consequently the CBA – were challenged, the LMRA does not inevitably

10

defeat the state-based DATWA claim because in accordance with Norris, a CBA is not the “only

source” of an employee’s rights. Both a state-based and federal-based claim can co-exist. See

Charles Dowd Box Co., 368 U.S. at 502. As expressed in Lingle, distinct claims based on different

sources of rights, even though potentially requiring parallel analysis, do not foreclose liability

under state law simply because one of the legal rights is conferred by federal law.

b. Scott’s DATWA claim is not preempted by LMRA’s § 301 because DATWA creates an

independent nonnegotiable right that does not require CBA interpretation.

State-law based claims that are “inextricably intertwined” with the terms of a federal labor

contract must give way to analysis under the LMRA. Lueck, 471 U.S. at 213 (“Congress has

mandated that federal law govern the meaning given contract terms.”). Conversely, if a contract’s

terms are not in dispute, the CBA does not require interpretation, and the state-based claim is not

preempted by § 301, Lingle, 486 U.S. at 413 n.12. Courts must look to the heart of the complaint

for what is truly relevant in determining whether a state-based legal claim implicates the CBA.

Gore v. TWA, 210 F.3d 944, 950 (8th Cir. 2000); see Rivet v. Regions Bank, 522 U.S. 470, 475

(1998) (a court may require federal law interpretation of claim when the complaint has been

artfully drafted to avoid a federal question).

However, even in deciding Lueck, the Supreme Court made clear that its holding should

not be read so broadly as to extended § 301’s preemption power to cover independent,

nonnegotiable, state-based duties. 471 U.S. at 216 n. 11. Footnote 11 in Lueck was fleshed-out in

decisions throughout the following decade; in Livadas v. Bradshaw, the Court reiterated that, “we

underscore[] the point that § 301 cannot be read broadly to preempt nonnegotiable rights conferred

on individual employees as a matter of state law.” 512 U.S. 107, 123 (1994).

Determining what state laws are independent, nonnegotiable rights is therefore crucial in

11

deciding whether a claim is substantially dependent on the terms of a federal labor contract. There

is strong support from LMRA’s body of law to generally conclude that (1) state-based common

law torts with a standard of care are negotiable rights dependent upon a CBA; and (2) state-based

statutes create independent, nonnegotiable rights. See Caterpillar, Inc., 482 U.S. 386; Cramer, 255

F.3d 683; Atwater v. NFL Players Ass’n, 626 F.3d 1170 (11th Cir. 2010); Stringer, 474 F.Supp.

894. This assertion is backed by numerous decisions regularly preempting state-based, duty of care

torts and allowing claims alleging violations of state regulations to proceed outside federal law.

See, e.g., Lueck, 471 U.S. 202; Livadas, 512 U.S. 107.

1. Scott’s DATWA claim is not premised on a negotiable right covered by a state

common law causes of action requiring interpretation of the CBA.

Rights and obligations under state law that do not exist independently from a private

agreement are not protected from preemption. Lueck, 471 U.S. at 213. Even if a state creates

common-law torts that are seemingly independent of a CBA, the CBA may be essential in defining

the duties owed in the tort action. Gore, 210 F.3d at 949-50 (alleging negligence, libel and slander,

and invasion of privacy under Missouri law). In ruling that Gore’s claims were preempted by §

301, the Eighth Circuit found the plaintiff’s asserted rights were not nonnegotiable, independent

state-law rights because defining the duties owed under state law were “inextricably intertwined

with the labor contract.” Id. (quoting Lueck, 471 U.S. at 213).

Torts that involve inquiries into standards of a duty of care are generally preempted by §

301 because they require interpretation of the CBA to assess the duty’s scope, thus making them

“substantially dependent” on the CBA. Negligence is one such type of claim because the degree

of care owed cannot be determined without analyzing the unique circumstances surrounding the

parties and CBAs are a pertinent consideration when looking to those relationships. Stringer, 474

12

F.Supp. at 910. See Int’l Broth. of Elec. Workers, AFL-CIO v. Hechler, 481 U.S. 851 (1987);

United Steelworkers of America v. Rawson, 495 U.S. 362 (1998); Atwater, 626 F.3d 1170. Fraud

also requires CBA analysis to determine whether reliance on a misrepresentation is reasonable.

Trustees of the Twin City Bricklayers Fringe Benefits Funds, 450 F.3d at 332; Bale, 795 F.2d at

780 (requiring comparison of pre-employment promises to CBA terms); Holmes v. NFL, 939 F.

Supp. 517, 527(N.D. Tex. 1996). cf. Anderson, 803 F.2d at 959 (fraudulent misrepresentation did

not depend on underlying CBA because the pertinent facts occurred prior to parties entering CBA).

In the present case, Scott’s DATWA claim is not based on Minnesota’s common-law, and

no standard of care is implicated. DATWA derives its authority from Minn. Stat. Ann. § 181.950

(2012) and is a codified law. DATWA’s statutory scheme outlines minimum information

requirements and employee rights without imposing duties of care. See, e.g. Minn. Stat. Ann. §

181.952 (2012).

2. Scott’s DATWA claim is premised on an independent nonnegotiable right and its

obligations are governed by state statutory law.

It is overly-broad to declare that state statutory law always confers independent,

nonnegotiable rights upon employees, however, statutes are given a strong presumption of

independence. The Supreme Court recognizes a state’s power to enact laws protecting its workers

and Ҥ 301 does not grant the parties to a collective-bargaining agreement the ability to contract

for what is illegal under state law.” Cramer, 255 F.3d at 695 (quoting Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202, 212 (1985)). In Cramer, the Eight Circuit ruled that California’s Penal Code

§ 653n (West's Ann.Cal.Penal Code § 653n), which protects employee privacy by prohibiting two-

way mirrors from being installed in restrooms, was not preempted by a CBA between a trucking

company and its employees. 255 F.3d at 695. The court found that freedom from illegality is a

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“nonnegotiable state-law right”, and that installation of two-way mirrors was immutably illegal,

and did not require interpretation of the CBA. Id. (citing Lueck, 471 U.S. at 213).

In 1994, the Supreme Court decided two cases implicating federal labor law’s ability to

displace state statutory law when a valid CBA existed. (Norris, 512 U.S. at 258 (RLA); Livadas,

512 U.S. at 123 (LMRA)) In both Norris and Livadas, the Court ruled that the RLA and the LMRA

did not preempt state statutes. 512 U.S. 107; Norris, 512 U.S. at 260 (the RLA preemption standard

is “virtually identical” to § 301 of the LMRA) (also noting RLA’s long history of recognizing non-

preemption of state-based safety statutes; e.g. Missouri P.R. Co. v. Norwood, 283 U.S. 249, 258

(1931); Terminal R. Asso. V. Brotherhood of R. Trainmen, 318 U.S. 1 (1943). The Livadas opinion,

which clarified Lueck, is significant because as noted by the Ninth Circuit, the court was forced to

reconsider prior case-law which had preempted state statutes. Cramer, 255 F.3d 683.

In Norris, an airline mechanic was fired by his employer for refusing to certify an airplane’s

maintenance record. 512 U.S. at 250 (complaint based on violation of Hawaii’s Whistleblower

Protection Act, Haw. Rev. Stat. §§ 378-61 to 378-69 (1988)). The claim was not preempted

because it required a purely factual inquiry into the retaliatory motive of employer Id. at 266). In

Livadas, a discharged store clerk requested prompt payment for wages earned during employment

as required by state law, Cal. Lab. Code Ann. § 203 (West 1989). Livadas, 512 U.S. at 125 (ruling

that California statute governing separation pay was a nonnegotiable state right). The Court

determined that the only issue raised was a violation of the statute, which was a question of state

law independent of the CBA between the clerk’s union and her employer. Id.

As stated earlier, CBA’s that govern what is simultaneously covered by state statute do not

require § 301 preemption if only the statute is challenged. Lingle, 486 U.S. at 409. A CBA that

incorporated an anti-drug policy was irrelevant to allegations that an employer violated a state’s

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drug testing statute, because Ҥ 301 does not grant the parties to a [CBA] the ability to contract for

what is illegal under state law." Karnes v. Boeing, 335 F.3d 1189, 1194 (10th Cir. 2003) (plaintiff

did not need to specify a specific section of Okla. Stat. tit. 40 § 562 violated). Minnesota's DATWA

has already been recognized to be a non-negotiable state law right that does not require

interpretation of a CBA. Thompson v. Hibbing Taconite Holding Co., 2008 U.S. Dist. LEXIS

87045, 11-12 (D.C. Minn. 2009) (claim failed because plaintiff pled a breach of the CBA within

the DATWA count).

Williams v. NFL is especially relevant given how similar the facts are to the ones presently

before the Court. 582 F.3d 863 (8th Cir. 2001). In Williams, Pat Williams and Kevin Williams

were National Football League (NFL) players employed by a team based in Minnesota. Id. at 870.

The players, parties to a CBA, ingested a dietary supplement that contained a banned substance

according to their CBA’s incorporated drug policy. Id. Following a drug test, the players were

disciplined by the NFL and suspended for a portion of the upcoming season. Id. The players

challenged their suspension pursuant to the grievance mechanism established in the CBA, but their

suspensions were affirmed by an independent arbitrator. Id. at 871.

Following the arbitrator’s determination, the player’s union filed a complaint in federal

court alleging a breach of § 301. Id. at 872. The players filed an amended complaint asserting that

the NFL violated Minnesota's DATWA and Minnesota's Consumable Products Act (CPA) Minn.

State. §§ 181.938. Id. The district court found the DATWA and CPA claims to be independent of

the CBA and not preempted by § 301. Id. at 873.

On appeal, the Eighth Circuit affirmed the district court’s ruling and found that the

DATWA and CPA claims did not require federal preemption. Id. at 874 (ruling that the claims

were asserted on state granted rights and interpretation of the CBA was unnecessary). The court

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rejected several arguments advanced by the NFL. First, it disagreed that a party to a CBA is

preempted from making a DATWA claim because it should compel the court to determine if the

CBA “meets or exceeds” DATWA’s protections. Id. at 876 (a CBA’s compliance with DATWA

only limits the number of potentially successful claims). Next, it disagreed that policy

considerations compel preemption. Id. at 877-78 (relying on Cramer, 255 F.3d at 695 n.9) “[t]he

LMRA certainly did not give employers and unions the power to displace any state regulatory law

they found inconvenient."). Finally, it rejected a waiver theory. Id. at 880 (rights independent of a

CBA cannot be waived). It was recognized that “in sum, the Players' DATWA claim is predicated

on Minnesota law, not the CBA or the Policy. . . thus, . . . not preempted by section 301.” Id. at

878.

This Court is faced with a single issue, whether § 301 of the LMRA preempts Scott’s claim

asserting that the NHL violated DATWA. (R. at 5). The law is clear; Scott’s DATWA claim is not

preempted by § 301.

DATWA is a statutory claim and should be presumed to grant Scott an independent,

nonnegotiable right that is distinct from any right found in the CBA. Across the Federal Courts of

Appeals, statutes like DATWA have been found to confer independent rights, because as Cramer

stated in language borrowed from Lueck, Ҥ 301 does not grant the parties to a collective-

bargaining agreement the ability to contract for what is illegal under state law.” Cramer, Livadas,

Karnes, Thompson, and Williams were cases where state statutory laws were deemed to confer

nonnegotiable rights on employees who were bound by a CBA. Apart from LMRA, the RLA, with

its similar objectives to the LMRA, did not preempt state statutory law in Hawaiian, Norwood, or

Terminal.

Additionally, The Eighth Circuit and its lower courts have already ruled that pure DATWA

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claims survive § 301’s preemption. Although the DATWA count in the Thompson complaint failed

because of a mistake in pleading, the District Court of Minnesota made a point to state that

DATWA confers independent, nonnegotiable rights on employees. In Williams, the district court

found DATWA to be sufficiently independent of a CBA and ruled that the DATWA claim was

not preempted § 301 even though a CBA governed the heart of DATWA’s protections. The Eighth

Circuit affirmed that decision.

For Scott’s DATWA claim, it is difficult to stray from the well-reasoned analysis employed

in Williams. Both Scott and the Williams’ were employed by a professional sports team based in

Minnesota. They were both parties to a CBA that governed illicit substances, and they both failed

their drug tests. Most importantly, Scott alleges a violation of DATWA, just as the Williams’ did.

The NFL in Williams made similar arguments to the ones adopted in The United States District

Court for The Southern District of Tulania’s opinion, which ruled that Scott’s claim was preempted

by § 301. The Eighth Circuit rejected the NFL’s arguments and The Tulania Court of Appeals

reversed its lower court’s decision. Thus, it seems that for the NHL’s argument to prevail, it must

be argued that both appellate courts applied the wrong analysis.

However, it is clear that The Tulania Court of Appeals and the Eighth Circuit’s Williams

decision remained true to the principles first established in Lueck. The CBA that binds Scott, the

NHLPA, and the NHL does not require interpretation. DATWA stands on its face and the Policy

only limits potential claims in accordance to Livadas’ teachings. Whether the Policy “meets or

exceeds” DATWA is only relevant if the CBA is challenged. The question before this Court is not

whether the CBA has been violated, the question is whether Scott’s DATWA claim is preempted

by § 301. While federal law favors uniformity, CBA provisions should not be given the force of

federal law by allowing parties to contract away minimum state protections; to do so would create

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a race to the bottom and eviscerate a state’s sovereign right to establish minimum safety standards.

DATWA is a minimum state protection that confers Scott with independent, nonnegotiable rights,

for which interpretation of the CBA is not required; and because § 301 of the LMRA was created

to govern disputes premised on a CBA, Scott’s DATWA claim is not preempted by § 301.

II. The arbitration award in this case is contrary to New York’s law governing

fiduciary duties, going so far as to condone the breach of such duty by Schrute

and the NHL.

Arbitrator awards which are contrary to public policy are overturned by this Court. New

York law governs this CBA where federal law is silent. New York law recognizes fiduciary

relationships and protects individuals from their failure. Schrute and the NHL had a fiduciary

responsibility to inform the players of all information relevant to their health and the regulation of

banned substances. Schrute and the NHL failed to inform the players of material information

within the scope of that duty. New York law recognizes such a breach as actionable. Therefore,

the arbitrators award is contrary to well defined public policy and should be vacated.

a. This Court overturns arbitration awards which are contrary to Public Policy.

A court's refusal to enforce an arbitrator's award under a collective-bargaining agreement

because it is contrary to public policy is a specific application of the more general doctrine, rooted

in the common law, that a court may refuse to enforce contracts that violate law or public policy.

W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766, (1983). “That doctrine derives from the

basic notion that no court will lend its aid to one who founds a cause of action upon an immoral

or illegal act. . ..” United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 42

(1987). This is further justified by the inescapable fact that the “public's interests in confining the

scope of private agreements to which it is not a party will go unrepresented unless the judiciary

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takes account of those interests when it considers whether to enforce such agreements.” United

Paperworkers Int'l Union, 484 U.S. at 42.

It is therefore well settled case law that “[i]f the [Policy] as interpreted by

[the arbitrator] violates some explicit public policy, [courts] are obliged to

refrain from enforcing it.” W.R. Grace & Co., 461 U.S. at 766. However,

“[s]uch a public policy ... must be well defined and dominant, and is to be

ascertained by reference to the laws and legal precedents and not from

general considerations of supposed public interests.” Id.

Just four years after W.R Grace, the Court clarified its ruling and addressed the determination facts.

Because the parties have contracted to have disputes settled by an arbitrator chosen by them

rather than by a judge, it is the arbitrator's view of the facts and of the meaning of the contract that

they have agreed to accept. Courts thus do not sit to hear claims of factual or legal error by an

arbitrator as an appellate court does in reviewing decisions of lower courts. To resolve disputes

about the application of a collective-bargaining agreement, an arbitrator must find facts and a court

may not reject those findings simply because it disagrees with them. The same is true of the

arbitrator's interpretation of the contract. So, too, where it is contemplated that the arbitrator will

determine remedies for contract violations that he finds, courts have no authority to disagree with

his honest judgment in that respect. If the courts were free to intervene on these grounds, the speedy

resolution of grievances by private mechanisms would be greatly undermined. Misco, 484 U.S. at

37–38.

This Court has further instructed that “the public policy exception is narrow....” E.

Associated Coal Corp. v. United Mine Workers, 531 U.S. 57, 63 (2000). But, the Court’s “authority

to invoke the public policy exception is not limited solely to instances where the arbitration award

itself violates positive law.” E. Associated Coal Corp., 531 U.S. at 63. Indeed, the Court has

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authority to overturn any award which violates “the principles set forth in W.R.

Grace and Misco.” Id.

Those principles can be distilled into a rule of three elements: (1) “If the contract as

interpreted violates some explicit public policy, [the Court] obliged to refrain from enforcing it.”

W.R. Grace & Co., 461 U.S. at 766. (2) The public policy must be well-defined, dominate, and

must be established by reference to law or legal precedent. Id. (3) Courts must not sit as fact finders

or makers of any inferences, those are made by the arbiter and must be respected. Int'l Bhd. of

Elec. Workers, Local 97 v. Niagara Mohawk Power Corp., 143 F.3d 704, 716 (2d Cir. 1998).

b. New York recognizes a Fiduciary Duty.

To the extent that Federal law does not govern, the CBA defers questions to the internal

law of New York. New York Case law is quite clear in recognizing the fiduciary relationship and

holding accountable those who violate such a relationship. “A fiduciary relationship exists

between two persons when one of them is under a duty to act for or to give advice for the benefit

of another upon matters within the scope of the relation.’” EBC I, Inc. v. Goldman, Sachs & Co.,

5 N.Y.3d 11, 19; (2005), (quoting Restatement [Second] of Torts § 874, Comment a). “It exists

only when a person reposes a high level of confidence and reliance in another, who thereby

exercises control and dominance over him” People ex rel. Cuomo v. Coventry First LLC, 13

N.Y.3d 108, 115 (2009).

A cause of action for a violation of this relationship is also recognized in New York. “The

elements of that cause of action are (1) the existence of a fiduciary duty, (2) misconduct by the

defendant, and (3) damages directly caused by the defendant's misconduct (see Saul v. Cahan, 153

A.D.3d 947).” Dineen v. Wilkens, 64 N.Y.S.3d 56, 58 (N.Y. App. Div. 2017).

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Aiding and abetting such a violation of trust has a recognized cause of action in New York

as well. Such a claim for aiding and abetting a breach of fiduciary duty requires: (1) a breach by a

fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the

breach, and (3) that [the] plaintiff suffered damages as a result of the breach” (Tri–Star Light.

Corp. v. Goldstein, 151 A.D.3d 1102, 1107, quoting Kaufman v. Cohen, 307 A.D.2d 113, 125).”

Dineen, 64 N.Y.S.3d at 58–59.

A fiduciary relationship is “necessarily fact-specific” and is also “grounded in a higher

level of trust than normally present in the marketplace between those involved in arm's length

business transactions” EBC I, Inc. v. Goldman, Sachs & Co., 832 N.E.2d 26 (N.Y. Ct. App. 2005).

While a contractual relationship is not required for a fiduciary relationship, “if [the parties] do not

create their own relationship of higher trust, courts should not ordinarily transport them to the

higher realm of relationship and fashion the stricter duty for them.” Northeast Gen. Corp. v.

Wellington ADV., 624 N.E.2d 129 (N.Y. Ct. App. 1993). But where a contract is present,

“[g]enerally. . . courts look to that agreement to discover ... the nexus of [the parties'] relationship

and the particular contractual expression establishing the parties' interdependency.”

One duty of the Fiduciary is the duty to disclose. This duty is recognized in New York. A

“duty to disclose generally arises when one party has information that the other party is entitled to

know because of a fiduciary . . . relation of trust and confidence between them.” Grandson v.

Merrill Lynch & Co., 147 F.3d 184, 189 (2d. Cir. 1988). Such a duty to disclose will arise where

a “fiduciary relationship exists or when a party has superior knowledge not available to the other.

...” Callhan v. Callhan, 127 A.D.2d 298, 300 (N.Y. App. Div. 1987).

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c. A Fiduciary Relationship existed between Schrute and the players who were part of the

collective bargaining agreement.

A Fiduciary Relationship existed between Schrute and the players who were part of the

collective bargaining agreement. The players, the NHL, and by extension Schrute, created a

relationship via the CBA. This relationship governed an entire universe of issues that arise between

players and a national professional sports league. Part of that agreement addressed monitoring the

health and well-being of the players, as well as the player’s adherence to the strict drug-testing

policies of the league. It is here where the fiduciary relationship between the players and Schrute

arises. It is also here that the other league officials who knew Schrute was withholding information

from the players became aiders and abettors in a breach of fiduciary duty.

The NHL tests its players for controlled substances and performance enhancing drugs.

These tests also detect masking agents and other chemicals which may result in a false positive.

This complex testing program for a litany of banned substances is backed by a harsh strict liability

clause for players. Because the stakes are so high and the tight rope to be walked so complex, the

NHL and the players agreed to place an expert in charge of helping the players abide by the rules

and in keeping themselves healthy. That expert would also be in charge of reporting to the league

any violations of the Policy. Schrute was this expert. He was trusted to ensure that the players had

all the knowledge available to them to navigate the complex world of bio-chemistry and

physiology, areas not typically in the expertise of a layperson.

The CBA states that Schrute has an express duty to educate NHL players about prohibited

substances. The agreement goes on to state that “in addition, [Schrute] will make himself available

for consultation with players and club physicians to, oversee violated protocols, oversee the

development of educational materials, and participate in research on anabolic steroids.” (R. at 19).

22

Schrute expressly promised in a memorandum to all NHL players the he would continue to supply

NHL players with information throughout the year. . .” concerning sleep aids. (Id.). This never

happened.

The CBA also informs the players that Schrute and the other administrators will make

necessary efforts to “educate and warn players about the risks involved in the use of supplements.”

(Id.). Schrute testified that his efforts to “educate and warn” were part of his continuing obligation

to the players. (R. at 20).

The toxicologist employed under the CBA warned Schrute that Narcotussin had been

identified in SuperDope, but was not present on the list of ingredients. Schrute was warned that

this ingredient may be harmful to the player’s health and would lead to positive test results for

banned substances. The Vice President of Law and Labor Policy at the NHL also knew of the

presence of this substance.

However, no one informed the players of this material information. Schrute testified that

he did not disclose this information because he was afraid that NHL players might come to expect

that he would notify them about other harmful banned substances in the future. The players would

not come to expect this, they already did. Schrute is not liable for failing to be omniscient. He has

no duty to disclose what he does not know. Nor do the players expect such unreasonable abilities.

But, Schrute does have a duty to inform the players about what is known.

Instead of disclosing that SuperDope contained a banned substance and should absolutely

be avoided, Schrute, Halpert, and the NHL issued an over-broad warning based on “maybes” and

“mights”. The memo issued to players advised them to avoid supplements claiming to induce

23

deeper sleep. And in a separate notice players were told they are not allowed to endorse the

company who manufactures SuperDope.

The NHLPA entered into an agreement with the NHL such that the NHL was under a duty

to act for, or to give advice for, the benefit of the players upon matters within the scope of their

relationship. The Players reposed a high level of confidence and reliance in Schrute and the NHL,

who thereby exercised control and dominance over them within the scope of that relation. From

this relationship, Schrute and the NHL had a duty to disclose facts given their superior knowledge

and expertise. Schrute knew about SuperDope, the NHL knew about SuperDope, and yet, chose

not to tell the players who had entrusted them with their health and lively hood.

The fiduciary relation, the fiduciary duty to disclose, and the actionable cause for breach

of these duties is well settled case law in New York. The people of New York have spoken and

determined that in these special instances of trust the fiduciary must be held to a higher standard.

It is the public policy of the State.

This Court overturns arbitrator awards which are contrary to public policy, so long as that

public policy is well defined in legal precedent. Herein, there has been no appeal to anything other

than well-defined case law. To let this arbitrator award stand would flout an entire area of

important legal framework in the state of New York and betray those prudent principles laid out

in W.R. Grace. The arbitrators award found a breach of contract, but any potential breach was

induced by a fiduciary’s failure to uphold his duty. In an increasingly complicated world each of

us must emplace more and more of our confidences in others who assumed responsibilities outside

of our areas of expertise. The public needs strong protections in this arena and New York has

imposed them via their body of law. The arbitrator in this case has no right to trample upon that

wisdom.

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CONCLUSION

For the foregoing reasons, the Tulania Court of Appeals’ judgement in favor of Respondent

Scott regarding the DATWA and arbitration award should be affirmed, and Petitioner’s appeal of

the Court of Appeal’s judgement should be denied.

Respectfully submitted,

Brief No. 22