reserve two minutes for my rebuttal that's fine if this court affirmed the district court's summary judgment ruling that a union member would have no d meaningful remedy when his union withholds a collectively bargained agreement stablish ing the members employment rights despite the fact that mr johnson is a member of the n f l p a he is an outsider here the n f l p a has never provided him with a complete copy of the at issue collective bargaining agreement and he never had an arbitration that comported with the expressed terms of the collective bargaining agreement concerning his l m are da claim undisputed that johnson requested a complete copy of the collective bargaining agreement at issue arbitration hearing the n f l p a at mit's that it did not provide that information to him even assuming the version even assuming that version was complete until october th two thousand and eighteen more than two years later what and you got some additional things in october of two thousand and eighteen correct that is correct or are the additional things that you've got would they have made any difference to the outcome of the  absolutely your honor and i will talk about that further but to your point one of the items they provided was a supposed amendment to the c s t requirement and if this court looked at the preceding statement which we submitted to the sport at appendix and eighty one of the issues that lang johnson raised was the fact that his test was not certified by the certified forensic pox colleges as identified in the policy itself and we will talk about that a little bit further does he even contest that it was a positive test i thought he acknowledged that the test was positive he acknowledged that he took the substance of his defense really was you know it was negligent no your honor that's that's not correct mr johnson actually contest that there was a positive test and that term is a defined term as set forth in the policy the n f l management council had the burden to establish a positive test and in this particular proceeding it is our contention that there was no positive test as that but here brady stands for the proposition that you get the arbitration that you bargained for here lane johnson didn't get anything close because of the secret amendments side deals and oral modifications about the arbitration process never disclosed to him and nd the majority and brady chided the n f l peeper changing its position throughout the litigation in this case the n f l p a has a bass a leading story about why only two arbitrators existed at the time of playing johnson's arbitration review at but the facts must demonstrate a clear error but in this case the process was so broken that there was no fair hearing and part of that had to do with the seating of the arbitrator which is in my view one of the most importan pieces to the arbitration itself that if the other guys are not properly seated they do so they actually have a fair arbitration process so i'd like to separate different things one what use it there is four basic things that mr johnson was never provided that impact directly the terms of his arbitration and likewise also impact his alomar da claim and the st is the amendment relative to the arbitrators the policy specifically require three twenty five unaffiliated arbitrators and that prevents arbitrator bias and control at the time of mr johnson's arbitration it's undisputed that only two existed the n f l p h s playing to the northern district of ohio judge that quote one or two years ago i'm not exactly sure when the parties by mutual consent the parties determine that two arbitrators were sufficient the parties concluded that it's not make sense to employ a rd arbitrator but that's not all in a brief did the arbitrator's decision that affected your client come ultimately from a panel of three arbitrators under this system your honor there is there is only one arb back to my question from a few minutes ago i'm looking at an excerpt from the hearing testimony and this is your your client testifying how many times did you take the stunts and i took a twice and you got it from your buddy and this is when you ended up testing positive yes so it seems to me he had made it that he took the substance and then he tested positive i would point out two things which is the positive test is a defined term set forth in the policy and that was the burden of the management counsel to prove and they couldn't prove it by virtue of the flawed procedures that were employed to test the actual substance and to answer the earlier question by judge kearney there were missing protocols and procedures by which mr johnson had the right under the policy to challenge but he was never provided with those in addition the policy required for a chief forensic tot toxicologist to to to  certify the results but in this particular case that did not occur because the cheaper and sick toxicologist was no longer there under the program and because i'm running out of time i just want to point out one last thing with i'm sorry  your position that the results were incorrect yes your honor because the protocols that we know of were not followed and therefore you can't assume that the positive test even if even existed at all in connection with this case at all and what about what judge to just read to you  trips of testimony where he and your client acknowledged having taken a substance although negligently he said that gave rise to such a result runner but that may be true but there's no there's no contention that the that the substance would have tested positive if in fact they had followed the collection procedures and the certified forensic toxicologists as it relates to the policy itself and i would point out that the that his claims in this case surround as well his claim under the l m r t a which has no bearing on the arbitration itself but just his request for the information under the policy and therefore you're out of time you have two minutes for a bottle but let's hear from the other side if you're honest and such a claim requires you argument your honor i have heard and have read about the n f l p a opposes the improperly withholding collection procedures and reasonable cause there were some documents that were produced late that is that they weren't produced until during the litigation relating to the the policy well undisputed your honor that we made a document production in october opposing parties make a claim that some of these documents that he didn't get until after go to the validity of the arbitration panel itself for instance it correct but only two rather than three arbitrators decided and is it correct that the documents which would have justified that change were not available not and that a single document that the n f l ca produced in october two thousand and eighteen would have made a difference at his arbitration because nowhere in his argument nowhere in papers say one word about any of those documents not argue that we know that we produce and have our own in by the way or that the agreement to collect medical record of author is eight in our court and if it isn't an open question with the decision to this district court was was it nothing but document is available or whether it's considered whether in the current in the existing circumstances there were no damages no punitive damages no attorney's fees as a matter of context requirement your honor there was no causal connection between the alleged deprival of documents and the outcome in the arbitration which is the worst of all of the injuries and alleged thank you will hear from your colleagues good morning ron or daniel nash on behalf of the national football league and the national football league management council i will just briefly address i think the issue that is positive on a llants section three hundred and one breach of contract claim against the n f l and why the court both correctly denied the motion to vacate under the affable brady standard and dismissed the section three or one breach of contract claim against the n f l i would note at the outset that in his briefing appellant does not even acknowledge that the brady exam standard applies and makes no effort to explain how this award could possibly be vacated under that exceedingly narrow and highly deferential standard the only grounds on appeal he made a number of arguments about they cater in the district court but on appeal the sole d argument is that the award benefit let me just quickly address the questions that the court had and the arguments that counsel made about the so called documents that he claims he was the not both the decisions of the arbitrator in the district court make clear that he had a full and fair opportunity to present his appeal including by seeking those very same documents through the policies discovery procedures in fact his counsel did so aggressively he served forty seven dollars discovery requests and that's in the dischord record at the disc essentially what he's arguing is that the discovery rulings of the arbitrator were wrong and under the brady standard those those rulings were titled to deference and  the long and the short of it is no matter what the players association provided him he was still able to seek discovery he was able to make procedural arguments and he was able to vindicate his c b a dispute resolution rights that in particular this the the so called see if the certification that he claims he was denied that was specifically ruled upon by the arbitrator who ruled that that made no difference to the validity of this test  actually what he's arguing and he kept saying that the magic council couldn't carry its burden of showing a positive test under under the policy but the arbitrator ruled otherwise and he did so in a ruling that was plainly grounded in the policy  the same is true about the so called collection procedures that he talks about those were adequately discussed and in the arbitrators both discovery rulings and his recent awards they can't be disturbed here so finally because there's no bas to vacate his award there's no basis to even suggest particularly in light of the players admissions that he took the behavior that substances there's no basis to vacate the arbitrators ultimate decision on his appeal of his mr greenspan's comments he is entirely factually wrong and i would tell the court that all it needs to do is look at the preceding letter that was submitted to arbitrator carter which is in the record a to it to eight through eight to fourteen and specifically at page eight to one hundred and twenty two years later after the arbitration and that specifically relates the c f p certification and in fact mr johnson specifically argues that his test was not properly evaluated by the neutral it's certified forensic hoxha colleges two years later mr greenspan provided a letter which if you look at was at in the record at eight to seventy eight through a three hundred and eighty one and specifically look at a three hundred and fifty one this is the letter that they claimed amended the two thousand and fifteen policy that they presented but they suggested the arbitrator existed but never provided that to mr johnson during the course of his arbitration that had everything to do with his underlying case and that with the withholding of that information was central to mr johnson's claims at that in the present letter provided to arbitrator carter so to answer your question this is if the cli at the heart of the l m r t a claim that exists in this case mr johnson covered extreme damage because his own union failed to provide him with a letter that supposedly amended the two thousand and fifteen policy i would also point out to the question concerning damages there are a modern minute you have one minute thanks your honor there are a multitude of cases within the nd circuit and specifically i would ask the court to versus virgin atlantic airlines all of those cases find that when the union withhold information from a union member they're entitled to the full panoply of damages including pence atory damages punitive damages and attorney's fees there is no made relative to section one hundred and four dollars and again i would just point out the issue that i mentioned at the beginning which is if this court adopts the decision by the district court it would basically allow you need to withhold vital information from a union member without