to the second case this morning u s soccer federation versus the u s national soccer morning may it please the court melissa sherry for appellate the issue on appeal in this case is a narrow one the arbitrator interpret the agreement between the parties or give him lots of it here both in what the arbitrator said and what the arbitrator did it is clear that he exceeded the scope of his authority when he granted the players association a right to pre approve non video creatives that cannot be found anywhere in the language of the fully integrated written agreement here if you reach that result even though he admitted that there is no explicit provision anywhere in the agreement providing a prayer provable right for nine video creative's even though there is an provision providing a pre approval right for a video creative's even though there are more than twenty five other provisions throughout the agreement providing pre approval notice to review rights in a variety of different circumstances even though it's a fully integrated agreement that cannot be modified except by writing and even though the arbitrators authority here was limited he could not add to subtract from or otherwise author the terms of the parties agreement now the players association acknowledges that there is no textual ambiguity here or that the arbitrator did not find any textual ambiguity there is no word there's no phrase there's no provision that the arbitrator found to be ambiguous at best he suggested some ambiguity by what the agreement did not say ambiguity by silence but silence generally does not equal ambiguity particularly when we're talking about a fully integrated agreement when the parties spell out individual rights and here in common parlance a q say you have the right to do x or y and if you do why you need to ask me first there's no ambiguity as to whether you also have to ask me before you do x even in common parlance if i tell my daughter that she can go out with their friends at night but if she's going to come home after ten she has to call me there's no ambiguity as to whether she also has to call me if she comes home before ten at the outset point out that  of the terms of the collective bargaining agreement in the uniform players players agree is required by the terms of the agreement that says or past dealings between the parties to submit to the united states  statement also adopted that disjunctive phrasing whether it's the terms of the agreement on the one hand or whether it's past practice on the other and so i think that's where he got that language from and the reason we point to that language because i think it shows the problem with the arbitrator's decision that he ultimately viewed this as an either or scenario and viewed past practice to be on par with the terms of the written agreement and then ultimately in the end of his decision elevate it past practice over the written term the agreement so that's how many starts by presenting that which you know that were did that come from leaders between the parties to submit to you know we didn't if you look at page and separate appendix if you look at page sixty eight it's the beginning of the arbitrators award and it  line whether it's contractually required or required by past practice so that was the players association for a meeting of the issue before the arbitrator are framing the issue comes below that where it says u s soccer stated the issue as follow and we spoke we did not you know uses either or formulation we spoke specifically about the terms of the plec the bar in the bargaining agreement and so as we pointed out in the brief we think the arbitrator both started in the wrong place by viewing this as an either or formulation and ultimately ended in the wrong place when if you skip ahead a bit to page one of five of the separate appendix when he comes to his conclusion what he says is yes i see this chart that you gave me that has twenty five plus provisions where you actually do grant express approval or notice rights especially i recognize as provided however language where it says there is a approval for video creatives and that's all relevant and then in the very next sentence he says however i just can't ignore the past practice and then he continues on to say it would defy sound judgement if i paid attention to what the parties did not do in other words did not have a written term to the agreement providing this right and didn't pay attention to what the parties did do another words past practice and so that's where the analysis i think started in the wrong place and ultimately ended in the wrong place it didn't come from the language of the contract as the arbitrators award was required to that's the limit of his authority instead it came exclusively from this non contractual source from past practice and if you look so i think both be it by what the arbitrator said and by what the arbitrator did it's clear that he exceeded his authority we you know in the briefs and today we recognize that the standard view of arbitration awards is limited but it's not negligible in this court has time and time said that we will look to what the arbitrator said but will also look to what the arbitrator did it's not enough to simply make noises of contract interpretation not enough to dress up policy desires and contract  must set aside the arbitration award and that's what happened here how many image provisions are either where goods are being sold to consumers and since as well as being using used for noncommercial uses where it's being used to promote for example an upcoming match what we're talking about here which is ads or promotion talks about footage this is a really detailed  section in fact the entire agreement is quite detailed in that respect and in section six alone when it talks about all of these different uses there's more than six times in which it spells out when there is advance approval when there is advanced review and it so in some detail it oftentimes says you know when there needs to be a notice what the notice needs to look like when the other side needs to respond if they don't respond whether it's deemed to prove you know what the standard that applies is it's  very detailed provisions and it's detailed with respect to video creatives as well when you get down to the section it says that u s soccer has the right to use players likenesses for sponsor ads or promotions subject to certain conditions there has to be six or more players this is the team concept you need to ask the sponsor to make a voluntary contribution to the player pool and then it says provided however if it's a video creative you also need to get the advance approval of the players association in the next section this is six f two goes on to say the reason why we need advance approval in these limited circumstances is because there is a greater likelihood that there's going to be or perceived to be implied endorsement if it's not a video creative you also need advance approval that's that's not how the contract every that's not how it possibly can be read i think it's common sense this court decided a case in one nine hundred ninety five i apologize it's not the brief but it's called baxter health care and your honors you were on the panel is quite a while ago but i think it sort of stands for this common sense proposition it was a medical device case and it was a distribution agreement that said there's exclusive distribution rights with respect to new products and it didn't say anything with respect to existing products and so the plaintiffs there argued well i think there should also be explicit distribution rights with their specs to existing products in the courts and that would be a logical it would be a obviously yet you know fairly well aware of what's going on with respect to the other sports and you know speaking about you know there's a lot of uses that issue a this is not a you know one sided agreement in any respect there's times where u s soccer has approval rights because the players want to do certain things with respect to team uniforms for example our names are logos and each of those instances the contract is specific and you know what can be done when it can be done and who word he was going to consider parish dealings and that's seems to be it's not in the contrary the same time it's in this preface that's what i'm wondering did everybody say that's ok or is this is surprise to you to us that he decided that past dealings should be considered our view was that the terms of the contract control of the players associations entire argument was based on past dealings our view before the arbitrator has always been that you you are you know you're limited to the written terms of the contract that we have an integration process that says quite clearly you don't get to look outside the four corners of the contract you can't modify the contract unless you're doing it in writing and so i  think the reason it was framed that way is because the players association entire argument was based on not on the contract but on this idea of past the awnings and i think that's it up again where the arbitrator started thinking that it was appropriate to stayed with the contract not look to pass the awnings and in doing so exceeded the scope of his authority by adding those past feeling terms to the contract where they didn't exist and there does there does seem to have been a very consistent huling is so there's almost this outward appearance that there must be something requiring pre approval of print creative's because it was happening all the time it was it was sort of routine i mean and i don't know if that's led the arbitrator there i don't and maybe that's beyond the scope of the records but people seems to feel compelled to do it for guard something which is the contract so if i can make three three points on that number one i do think that's sort of the temptation that the over trade or even to when he said he had a contract says this but i just can't ignore what's being done on it in practice and that's just not the arbitrator's role to do that as far as what was going on in practice it's not something we're challenging here it's we understand the standard of review but you know our view and the record before the arbitrator and all due respect was that we reason we were doing this for a number of years was not because we thought the contract required it but it was a business judgment it was just easier to get the players association to sign off on things before hand rather than to activate an ad have them object after the fact file a grievance and then we sort of be embarrassed by having if they're successful having to pull the ad it would be embarrassing for us and our sponsors and it was just that after a while the difficulty in getting pre approval the inconsistency the unreasonableness of the players association and approach to this process after a while it just was outweighed you  know the business judgment changed i would say as we were getting close to the two thousand and fourteen world cup and we're losing sponsors and there are more sponsors that wanted to activate around the team we changed we changed our practice it please the court allison jones on behalf of the players association the only question before this court is whether the arbitrator was even arguably engaged in contract interpretation when he found  collective bargaining agreement ambiguous with respect to players association approval of sponsor print creative that's the only question in their reply brief and the federation admitted this on page nine of their reply that it's appropriate to look to past practice if a contract is ambiguous on page nineteen of their reply brief they admit that the arbitrator's findings are not being challenged here his findings about past practice so the only question is about ambiguity and the question is not whether the contract is or is not ambiguous because as this court knows this court's role is not to interpret the contract rather the only question is was the arbitrator engaging in contract interpretation or was he throwing out the terms of the contract disregarding them as a source but it and instituting his own brand of justice the federation does not point to anything nothing in the arbitrator's award that shows he was looked outside the four corners of the contract when he decided it w enough in looking at past practice no in fact in the reply brief this is the pages fifteen and sixteen of the federation's reply they are adamant that the arbitrator did not look at past practice when he decided that the contract was ambiguous they take issue with our even suggesting that he could do that but they are very clear he did not look at past practice when he decided that this contract was ambiguous and that's plett played out if you look at the arbitrator's decision early on in his decision and the pages in that between eighty four and eighty seven he looked at section six which is the relevant section about likenesses section six b says the last minutes i suspect except as set forth below the federation may not use or allow others to use players likeness without the agreement of player or players representatives so he looked at that section he looked at section sixty and then he looked at six f one but one t so he decided something wasn't there respectfully your honor he he said he looked those two phrases and this is on sixty eight and sixty seven and i said six that seems to contemplate that sponsors would use creatives but there's no approval process that out right clearly not there that's right so he assumes that approvals necessary and he gets that we say from six b that's the argument that he quoted from the players association but he says the approval process is not set out here it's silent and for its standard licensing agreement to assist players association in soliciting new licensing agreements so there's a form out there and they provide that there's nothing i can find in here that explains how the  federation of players association should go about using that form to solicit new agreements so as an ambiguity in this contract it certainly could be your honor and that would be within an arbitrator's purview to interpret this contract as ambiguous on that question and there's nothing in the contract about what color shorts or singlets people should wear or teachers so as this now and leave ambiguous because it is silent on that topic well that's a question of interpretation your honor and questions of interpretation are for the arbitrator not for this court and it's important to back up and realize this is then the collective bargaining arena so this is an arena in which the supreme court has said in the steelworkers trilogy that i don't contract terms yes they exist and are important that the supreme court has recognized the common law of the shop which is another work for past practice is always incorporated into the contract whether it's explicitly in there or not the supreme court has made that very clear so although the arbitrator here only looked at the four corners of a contract he would have been fully within his right to say the contract says zippo about this question whether it's the color of your shorts or whatever you're supposed to wear but because the common law of the shop exists i'm going to look and see if there's a bona fide past practice right it has to be a high standard and if that exists and if there's not a clause in the contract that prevents me from applying that to the parties i'm going to apply it and that's perfectly ok and to be clear no such clause exists here the federation likes to refer to a zipper clause but what they really have is a boilerplate integration what you need in a situation like this if they want to prevent the arbitrator from looking at past practice is a clause like there was in the anheuser busch case that clause prevented use of it said that all practices not specifically preserved  provision of the contract were not included but after steelworkers you need that if you're going to make sure that you're exploiting that but to be clear here again the only question is whether the arbitrator was interpretating the contract when he found ambiguity it's not for this court to never in any case the federation sites that we've been able to find said no we're going to disagree with that contract interpretation and say it is unambiguous and therefore vacate the award the federation points to the tootsie roll case and the po brothers cases but those were not cases where the arbitrator found any ambiguity those were cases where the arbitrator said yes the contract that's x but i'm going to look at something outside of the contract into it's your role it was up a handbook   we respectfully submit that that was the correct terminations now again whether it's correct or not is not for this court but looking at six b which expressly requires player agreement to any use of their likeness and then six f which says if they're likenesses used you have to request money it's arguably ambiguous we would say it's it's pretty clear that you have to get their approval but the process for getting approvals ambiguous do you go directly to the player do you go to the players agent do you go to the players association can you point me to where in the contract and where in the us are in the arbitrator's decision you know actually says this is the ambiguous language so it sixty eight and sixty seven of the the clearest place where the arbitrator he has looked at section six he has outlined the federation's arguments about how to interpret sixty sixty and six that he knows that the federation says  requires player approval and then at the bottom of sixty eight he says however the u p a clearly contemplates the federation sponsors might make use of print creative which is starkly they have but the u p a offers no explicit guidance as to any process think a good example of this your honor is in the in the northern indiana public service company case that was a that was a case where there was a table in the contract that correlated bonuses for employees to operating income for the company it went up to a certain point and then it ended but operating income went off the chart that year and so the employee said large bonuses should also increase and the employer said no but there's nothing in the contract that says your bonus can increase there that's a cap the arbitrator said the awarded the contract to silence got to silent on whether bonuses above the maximum amount given in the contract can be awarded because it's silent i find it ambiguous on that point it's silen means ambiguity because of the context and then they are free to looked to past practice and found that yes bonuses should go off the chart and this court affirmed this court said that's a question of interpretation the arbitrator interpreted importantly a second arbitrator in a different case interpret that exact same chart it said no that's a cap this is a it's silence therefore it's a cap it's not ambiguous and this court said both of those both of those arbitrators were interpret in the contract therefore they can both be affirmed if the only question for the score is are they interpret ing and whether something is ambiguous particularly whether a silence is ambiguous is a question of interpretation now and judge mannion pointed to the beginning phrasing of the issue which the easy to read that and in light of his opinion as a whole he makes it clear in his opinion that this is on pages eighty four and eighty five that he's only going to look at the four corners of the agreement to determine whether it's ambiguous and only only if it's ambiguous will he look outside and we think that phrasing just means does the text by itself require this and if not if it's ambiguous or silent just past practice now again he would be perfectly within his rights to look at the common law of the shop regardless of what the contract says unless the contract explicitly explicitly contradicts it and so the either or phrasing doesn't suggest he's doing anything improper and again the burden is on the federation to prove that his award cannot be interpreted in any other way other than exceeding his role now the supreme court has made clear an enterprise wheel and this court is echo that in numerous other cases that ambiguity in an arbitrator's award so a phrase or a paragraph here or there that yes your honor and the only the only dispute here the only thing the federation disputes is whether it's and ambiguous and of course we said that the question is not whether the contracts and big yes that was the question for the arbitrator the question for this court is that the federation made all of these arguments that it's making at this court it may go to the arbitrator and again to the district court the arbitrator listen to all of the arguments that the federation's made here plus some and decided i find that contract language ambiguous i hears your your argument about video created as i hear your argument about these other provisions which were added at other times and what their implications may or may not be but i find it in big us so i'm going to move and look to extremes of evidence insurance contracts were all insurance companies people looking at joe there's contracts and court decision or human and redraft sure sure and that's i think that's an important point that they've the provision covering print creative  but it's the arbitrator didn't find that to be conclusive evidence that somehow the practice has to procreate as as now changed and again that's clearly a question for the arbitrator the same thing is true about this defy sound judgment contract that involve approval for other things i'm going to look at those and the players association has pointed me to past practice and i'm going to look at that and he says it would defy quote defy sound judgement to look at one and not the other in determining says nothing like what the federation suggests which is that it would defy sound judgement to reach one conclusion therefore i'm going to reach another conclusion counsel what about the vision that immediately follows the requirements for pre authorization for video creators that says here's why we're so worried about video creator respectfully our it doesn't say anything else or it says that the players association has pointed out a particular problem with video creatives but it's not at all the explanation for video creatives that the federation and says it is but secondly of course that is again a question of contract interpretation which is for the arbitrator not for this court i would point out that the the parties bargained for the arbitrator to decide what the contract means they bargain for him to do that without review and for his opinion to be final this court cannot overturn the parties bargain for agreement and impose its own interpretation of the contract and i would make one more point federation to stand in front of this court and say there is no plausible way to interpret this agreement to mean that we have to see player cessation approval when they do not contest that they explicitly told their sponsors this is on page one thirteen and one fourteen in the appendix they told their sponsors collective bargaining agreement quote requires the approval of the relevant players association for the use of all team player like you very quickly try to get out a few points number one just to start where we left off and it's ours what we said to our sponsors if you look at what they point to they say that we have executed repeated sponsorship agreements that have this language showing that it comes from the c p a the only one they point to is a draft agreement that was never executed there is not a single sponsorship agreement that the arbitrator point to that says that the collective bargaining agreement required us to see pre approval either talk about u s soccer approval they talk about requiring approval as a political there's no language in an executed for human of the sort that they are talking about the second point i would make with respect to six b the suggestion that the arbitrator looked at this in except a set forth below language that they point to and six b is simply not true if you look at the arbitration a word he doesn't engage in any discussion of that particular language at all and they rely on that last sentence and six b i'd encourage the court to start from the beginning of sixty and actually read it as a whole what it does is it provides the right set that u s soccer has with their spec the players likenesses and it says the rights are set forth below you get to f one when you look below when you find the right that we're talking about about here the third point i would make with respect to northern indiana public service company that is the case where silence was ambiguous because there was a yawning void the fact is it was a bonus chart and the company did so well that year that it was literally off the charts and so the arbitrator needed to figure out what the bonus was going to be it was not plausibly complete without figuring out what that bonus was and then just to bring to the last point the color shorts example i mean the consequence of the players association position here really is quite dramatic it's that the arbitrary can do whatever he wants it doesn't matter what the contract says it doesn't matter that the contract is fully integrated the arbitrator can look to any thing look to the contract look at side the four corners of the contract look to past practice this court can't review it that's not this court's that's not the law in this court that has never been the law in this court and it couldn't be it really would give the arbitrator much more authority than the parties a to hear the agree to allow him to interpret the contract not to add terms to it not to rewrite it that's what happened here so we'd ask the court to reverse the district court and send it back to be keep the arbitration or