### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 40936

NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, agent of on its own behalf and on behalf of Ezekiel Elliott , Plaintiff

– Appellee ,

v. NATIONAL FOOTBALL LEAGUE; NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL,

Defendants

– Appellants

.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:17

- CV

- 615

Before PRADO, ELROD, and GRAVES, Circuit Judges

. PER CURIAM: * On August 3 1 , 2017, the National Football League Players Association (NFLPA) filed a complaint in the District Court for the Eastern District of
Texas on behalf of Ezekiel Elliott , a running back for the Dallas Cowboys, seeking a preliminary injunction preventing enforcement of a forthcoming six

game suspension by the N ational F ootball L eague (NFL) and the National

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 12, 2017

Lyle W. Cayce Clerk Case: 17-40936 Document: 00514193815 Page: 1 Date Filed: 10/12/2017No. 17

- 40936

2 Football League Management Council

. Elliott and the NFL had been engaged in the arbitration process following an inv estigation resulting from domestic violence allegations against Elliott

. After reviewing the investigation report and underlying evidence, Rodger Goodell, the Commissioner of the NFL, determined the domestic violence allegations were substantiated and tha t Elliott should be suspended for six games. Under the c ollective b argaining

a greement between the NFLPA and the NFL, a player h a s the right to contest before an arbitrator a player discipline determination by the league. Elliott invoked that right and H arold Henderson, a former NFL executive, presided over the August 29

– 31, 2017 arbitration hearing. When the NFLPA filed this lawsuit and moved for a preliminary injunction on August 31, 2017 , Henderson had indicated a decision was forthcoming, but had not yet issued the decision. On September 5, 2017, the district court held a preliminary injunction hearing. That same day , the arbitrator issued his decision upholding the NFL’s six

- game suspension of Elliott . On September 8 , 2017, the district court

en joined the NFL from enforcing Elliott ’s six

- game suspension. The NFL moved this court for a stay of the district court’s injunction on September 15,
2017. We VACATE the district court’s preliminary injunction and REMAND to the d istrict c ourt with instruc tions to dismiss the case. The NFL contends the district court lacked subject matter jurisdiction under the Labor Management Relations Act (LMRA) , 29 U.S.C. § 185, to issue the preliminary injunction. 1 While preliminary injunctions are generally reviewed under an abuse of discretion standard, de novo review is appropriate where “a district court’s ruling rests solely on a premise as to the applicable

1 The parties agree that the Federal Arbitration Act does not confer subject matter jurisdiction on the district court. Nat ’l Football League Players Ass’ n v. Nat ’l Football League , 4:17

- cv
- 00615, 2017 WL 3940545, at *3 (E.D. Tex. Sept. 8, 2017). Therefor e, the only basis for jurisdiction in the district court would be pursuant to the LMRA. Case: 17-40936 Document: 00514193815 Page: 2 Date Filed: 10/12/2017No. 17

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3 rule of law ” and the applicable facts are established or of no controlling relevance. United Offshore Co. v. S. Deepwater Pipeline Co., 899 F.2d 405, 407 (5th Cir. 1990). On appeal, a court may also examine the basis for jurisdiction sua sponte

. Simon v. Wal

- Mart Stores, Inc. , 193 F.3d 848, 850 (5th Cir. 1999). When courts lack subject matter jurisdiction over a case, the y lack the power to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City of Madison , 143 F.3d 1006, 1010 (5th Cir. 1998). Thus, we must examine jurisdiction whenever subject matter jurisdiction appears “fairly in doubt.” See A shcroft v. Iqbal , 556 U.S. 662, 671 (2009). Questions of subject matter jurisdiction cannot be forfeited or waived and are reviewed de novo

. Hous

. Refining, L.P. v. United Steel, Paper & Forestry, Rubber, Mfg. , 765 F.3d 396, 400 (5th Cir. 2014). 2 “[T]he jurisdiction of the court depends upon the state of things at the time of the action brought.” Grupo Dataflux v. Atlas Glob. Grp. L.P. , 541 U.S. 567, 570 (2004). Under the LMRA, a lawsuit for violations between an employer and a labor organization must s atisfy the following three elements: “ (1) a claim of violation of (2) a contract (3) between an employer and a labor organization. ” Carpenters Local Union No. 1846 of United Bhd. o f Carpenters & Joiners of Am., AFL

- CIO v. Pratt

- Farnsworth , 690 F.2d 489, 500 (5th Cir. 1982); 29 U.S.C. § 185(a). The NFLPA argues t hat because Elliott has stated a claim that satisfies these three elements, the district court was vested with jurisdiction over this case. In response, t he NFL argues that jurisdiction only vests under the LMRA if Elliott exhausts his contractual remedies and that

2 The NFLPA contends the district court’s decision should be reviewed under an abuse of discretion standard . However, the court first determines the question of subj ect matter jurisdiction, which is reviewed de novo

. See Hous. Refining , 765 F.3d at 400. Because the court finds the question of subject matter jurisdiction dispositive , it need not address the proper standard of review for the district court’s prelimina ry injunction. Case: 17-40936 Document: 00514193815 Page: 3 Date Filed: 10/12/2017No. 17

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4 the lack of a final arbitral decision at the time of filing the complaint is a fatal jurisdictional defect. 3 It has long been established that “federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.” Republic Steel Corp. v. Maddox , 379 U.S. 650, 65 2 (1965). “If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement.” Id. at 653. The “grievance and arbitration procedures are part and parcel of the ongoing process of collective bargaining.” Unit ed Paperworkers In t ’l Union, AFL

- CIO v. Misco, Inc. , 484 U.S. 29, 38 (1987)

. Outside of limited circumstances, the failure to “fully exhaust[]” contracted for “grievance procedures” places an employee’s claim for breach of a collective bargaining agreeme nt beyond “judicial review.” Vaca v. Sipes , 386 U.S. 171, 184

– 85 (1967) (discussing situations where an “employee may obtain judicial review of his breach

- of

- contract claim despite his failure to secure relief through the contractual remedial procedures” )

. While courts have jurisdiction to enforce collective bargaining contracts, “where the contract provides grievance and arbitration procedures, those procedures must first be exhausted and courts must order resort to the private settlement mechanisms with out dealing with the merits of the dispute.” Misco , 484 U.S. at 37

. Our circuit holds that federal courts lack subject matter jurisdiction “ to decide cases

3 The dissenting opinion’s citation to Houston Refining, L.P. v. United Steel, Paper & Forestry, Rubber, Mfg. , 765 F,3 396 (5th Cir. 2014) is a red herring. The issue in Houston Refining was whether the mere allegation that a collective ba rgaining agreement existed was sufficient to support jurisdiction under the LMRA. Id. at 402. There is no dispute here that a collective bargaining agreement existed. At issue is whether there was a repudiation of that collective bargaining agreement to trigger an exception to the exhaustion requirements for a court to exercise subject matter jurisdiction. Case: 17-40936 Document: 00514193815 Page: 4 Date Filed: 10/12/2017No. 17

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5 alleging violations of a collective bargaining agreement . . . by an employee against his employer unless the employee has exhausted contractual procedures for redress.” Meredith v. La. Fed’n of Teachers , 209 F.3d 398, 402 (5th Cir. 2000). The NFLPA argues , following the Supreme Court’s decision in Arb augh v. Y&H Corp. , 546 U.S. 500, 510

– 11 (2006), t hat Meredith is no longer good law and exhaustion should not be considered as an issue of subject matter jurisdiction

. Arbaugh addressed when the term “jurisdiction” is properly utilized . 546 U.S. at 510. The Court stated at times the term had been appl ied to procedural requirements that “are not properly typed ‘jurisdictional

. ’” Id. Particularly in the “subject

- matter jurisdiction/ingredient

- of

- claim

- for

- relief dichotomy,” the Court stated that it, among other courts, “ ha [d] been less than meticulous ” in the use of the lab e l

. Id. At issue in Arbaugh was whether the threshold number of employees for the application of Title VII to an employee’s claim was an element of a claim for relief or a jurisdictional issue. Id. at 516. The Court held that beca use Congress had not ranked t h e statutory limitation

on coverage in Title VII as jurisdictional, “courts should treat the restriction as nonjurisdictional.” Id. The Court further clarified in Henderson ex rel

. Henderson v. Shinseki , 562 U.S. 428, 435 (20 11), “that a rule should not be referred to as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject

- matter or personal jurisdiction.” Claims

- processing rules, which are rules “requiring that a party take certain procedura l steps at certain specified times , ” are not jurisdictional

— even if mandatory

— unless Congress clearly indicated the rule was “jurisdictional.” Id. at 435

– 46. However, the Court held there were no “magic words” Congress needed to invoke and if there was “ a long line of this Court’s decisions left undisturbed by Congress” treating a requirement as jurisdictional , the Court would “presume that Congress intended to follow that course.” Id. at 436. Case: 17-40936 Document: 00514193815 Page: 5 Date Filed: 10/12/2017No. 17

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6 As discussed above, the Supreme Court has long treated the e xhaustion of grievance procedures provided for in collective bargaining agreements as jurisdictional. See Vaca , 386 U.S. at 184

– 85 (discussing when judicial review is available if grievance procedures have not been exhausted); Misco , 484 U.S.
at 37 (holding jurisdiction to enforce a collective bargaining agreement only vests once grievance and arbitration procedures are exhausted). Moreover, exhaustion is not a claims

- processing rule that goes to the timing of filing a lawsuit. Instead, it is a ru le reflecting the forum in which an employee’s remedy lies, which is the grievance procedures to settle disputes under the LMRA. See Maddox , 379 U.S. at 653 (“Congress has expressly approved contract grievance procedures as a preferred method for settling disputes

. . . .”) ; 29 U.S.C. § 173(a)

. Further, following Arbaugh , this court has not overruled its decision in Meredith

. 4 Given that Congress has left undisturbed the Supre me Court precedent holding the exhaustion of remedies is a jurisdictional prere quisite to bring an action alleging a breach of a collective bargaining agreement, the court declines to hold that Meredith is no longer good law in light of Arbaugh

. The NFLPA’s lawsuit on Elliott ’s behalf was premature. 5 T he procedures provided for in the collective bargaining agreement between the

4 “It is a well

- settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel’ s decision, absent a n intervening change in the law . . . . ” Jacobs v. Nat’l Drug Intelligence Ctr. , 548 F.3d 375, 378 (5th Cir. 2008).
5 Importantly, e ven if exhaustion w ere merely a mandatory claim

- processing rule after Arbaugh , Elliott’s failure to exhaust his remedies w ould still preclude our review here. See Gonzalez v. Thaler , 565 U.S. 134, 146 (2012) (stating that “calling a rule nonjurisdictional does not mean that it is not mandatory or that a timely objection can be ignored”). Here, the NFL timely raised that Ell iott had failed to exhaust his remedies before filing suit. An employee must first resort to the procedures provided for in a collective bargaining agreement before filing a lawsuit. Boone v. Armstrong Cork Co. , 384 F.2d 285, 288 (5th Cir. 1967). Decisi ons from the Sixth and Seventh Circuit s support holding that the exhaustion of remedies provided for in a collective bargaining agreement is mandatory and any timely raised defect at the litigation’s outset cannot be cured by the subsequent issuance of an arbitral award

. See Kaiser v. U.S. Postal Service , 908 F.2d 47, 49

– 50 (6th Cir. 1990) (holding Case: 17-40936 Document: 00514193815 Page: 6 Date Filed: 10/12/2017No. 17

- 40936

7 NFL and NFLPA were not exhausted. The parties contracted to have an arbitrator make a final decision. That decision had not yet been issued. Although the NFLPA argues there were final procedural rulings, those rulings were not necessarily indicative of the arbitrator’s final decision. At the time the NFLPA filed the complaint , it was possible the arbitrator could have issued a final decision that was favorable to Elliott

. Elliott cannot show it was futil e to wait for a final decision simply because he believed the arbitrator would issue an unfavorable ruling. As there was no final decision, Elliott had not yet exhausted the contracted

- for remedies.
We next turn to whether Elliott ’s failure to exh aust h is remedies was excused. There are three exceptions to the exhaustion requirement: “( 1) the union wrongfully refuses to process the employee’ s grievance, thus violating its duty of fair representation ; (2) the employer’ s conduct amounts to a repudiation of the remedial procedures specified in the contract; or (3) exhaustion of contractual remedies would be futile because the aggrieved employee would have to submit his claim to a group which is in large part chosen by t he employer and union against whom h is real complaint is made.”

that exhaustion of the arbitration and grievance procedures set out in the collective bargaining agreement was required where an employee alleged the union was not processing the claim in a timely manner); Macon v. Youngstown Sheet & Tube Co. , 698 F.2d 858, 861 & n.2 (7th Cir. 1983) (holding there was a failure to exhaust remedies where an employee filed a lawsuit while an arbitration pursuant to a collective bar gaining agreement was ongoing, even though a final arbitral award had subsequently issued)

. Our holding in Gorman v. Verizon Wireless Tex., L.L.C. , 753 F.3d 165 (5th Cir. 2014) does not compel us to a contrary conclusion. Gorman addressed whether under the Texas Commission on Human Rights Act (TCHRA) a right

- to

- sue letter was a jurisdictional requirement or a condition precedent, such that any defect could be cured after the lawsuit was commenced. Id. at 169. Gorman held that the right to sue requireme nt was not jurisdictional based on a Texas Supreme Court case interpreting the TCHRA, which harmonized Texas’s law with the United States Supreme Court’s holdings that Title VII right

- to

- sue letters are mandatory not jurisdictional. Id. at 169

– 70. Whethe r exhaustion was mandatory here does not turn on interpreting whether a prerequisite to filing a lawsuit is a jurisdictional requirement under state law. Case: 17-40936 Document: 00514193815 Page: 7 Date Filed: 10/12/2017No. 17

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8 Rabalais v. Dresser Indus., Inc. , 566 F.2d 518, 519 (5th Cir. 1978) (internal citations omitted)

. 6 The NFLPA only argues th e repudiation exception to the exhaustion requirements applies . An allegation that an employer has repu diated the grievance process is not substantiated merely by its “refusal to accept an employee’s position with respect to a grievance.” 7 Id. ; see also Meredith , 209

6 The dissent ing opinion argues that the existence of exceptions to the exhaustion requirement undermines the NFL’s argument that exhaustion is a jurisdictional prerequisite. However, these exceptions are better thought of as exceptional circumstances in which arbitral processes are deemed “concluded” absent final arbitral awards. Here , the mere fact that the record was closed and the arbitrator had i ssued final evidentiary rulings is not an exceptional circumstance where we should deem the arbitral process as concluded absent a final award. The existence of adverse evidentiary rulings against a party does not indicate that it is a foregone conclusion that the arbitrator will issue an award adverse to that party. An adverse evidentiary ruling does not a judgment make.
7 The di ssenting opinion conflates a claim for breach of a collective bargaining agreement with an allegation that the employer repudiated the collective bargaining agreement. An allegation that an employer did not abide by the terms of a collective bargaining ag reement during the grievance process is not equivalent to an allegation the employer refused to participate in the grievance procedures provided by the collective bargaining agreement. An allegation of the latter is required to show the repudiation except ion applies. Citing to an out

- of

- circuit case, the dissenting opinion argues it has not conflated a claim for breach of a collective bargaining agreement with a claim for repudiation of a collective bargaining agreement. Ramirez

- Lebron v. International Shipping Agency, Inc. , 593 F.3d 124 (1st Cir. 2010), however, is easily distinguishable. Ramirez

- Lebron involved two groups of employees with conflicting seniority claims, where one group of employees and the employer allegedly entered into a “ sham, secre t agreement ” that was submitted to the arbitrator. 593 F.3d at 127

– 28. Both groups of employees were supposed to appear before an arbitrator, but that hearing was suspended and the arbitrator subsequently issued an award allegedly based on the secret agr eement between only one group of employees and the employer, without the second group of employees ever participating in the arbitral process. Id. at 128

– 29, 135. The second group of employees alleged the employer breached the collective bargaining agree ment and repudiated the arbitration process by inducing the arbitrator to issue an arbitral award based on a fraudulent scheme. Id. at 128. The Ramirez

Lebron employer simultaneously breached and repudiated the collective bargaining agreement because it allegedly fraudulently induced the arbitrator to enter an award benefitting one group of employees, which had the effect of excluding from the arbitral process another group of employees with access to that same process under the collective bargaining agreement. Id. at 134

– 35. Here, the dissenting opinion admits “there is no claim of fraud.” Likewise, here, there is no allegation a party is being excluded from the arbitration process, as the group of plaintiff employees were in Ramirez

- Lebron

. Case: 17-40936 Document: 00514193815 Page: 8 Date Filed: 10/12/2017No. 17

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9 F.3d at 403 (holding the repudiation exception applied where an employer claimed the emplo yee “was not covered by the collective bargaining agreement and did not consider her grievance”). “An employer can obviously take a stance contrary to that of the employee during the grievance process without being deemed to have repudiated that process.” Rabalais , 566 F

. 2d at 520. Here , it is undisputed the NFL and Elliott w ere engaged in arbitration as provided for under the c ollective b argaining a greement. Unlike Meredith , where the employer refused to consider the grievance under the collective bargaining agreement, the NFL cannot be said to have repudiated the agreement here

. The NFLPA takes issue with the outcome and fairness of the arbitration proceedings. However, for the repudiation exception to the exhaustion requirements to apply, the NF L woul d have had to completely refuse to engage in the process. See Meredith , 209 F.3d at 403. Accordingly, the court finds the repudiation exception does not apply and Elliott was required to exhaust his contractual remedies before filing his lawsuit. When the NFLPA filed the complaint on August 31, 2017, the arbitrator had not yet issued his decision. Although the district court issued the injunction on September 8, 2017, and the arbitrator had previously issued his decision on September 5, 2017, jur isdiction depends on the facts as they exist when the complaint was filed. See Newman

- Green, Inc. v. Alfonzo

- Larrain , 490 U.S. 826, 830 (1982). The district court, therefore, lacked subject matter jurisdiction when it issued the preliminary injunction

. 8

8 Much of the dissent ing opinion is devoted to examining the merits of the NFLPA’s law suit. While these arguments and concerns about the arbitration process may have me rit, they must be considered by a court with proper jurisdiction. See Home Builders Ass’n of Miss., Inc. , 143 F.3d at 1010 (“When courts lack subject matter jurisdiction over a case, they lack the power to adjudicate the case.”); Morrison v. Nat. Austl. B ank, Ltd. , 561 U.S. 247, 254 (2010) (noting that subject matter jurisdiction is “ an issue quite separate from the question of whether the allegations the plaint iff makes entitle him to relief” ). Case: 17-40936 Document: 00514193815 Page: 9 Date Filed: 10/12/2017No. 17

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10 For the foregoing reasons, we VACATE the district court’s preliminary injunction and REMAND to the district court with instru ctions to dismiss the

case

. Case: 17-40936 Document: 00514193815 Page: 10 Date Filed: 10/12/2017No. 17

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11 JAMES E. GRAVES, JR., Circuit Judge, dissenting: This is a case about undisclosed in formation, uninformed decisions, and an arguably unfair process in determining whether Dallas Cowboys running back Ezekiel Elliott should be punished for allegations of domestic violence made by an accuser who was found not credible by the NFL’s lead inves tigator, who was then excluded from meetings with NFL Commissioner Roger Goodell. Because I conclude that the district court had subject matter jurisdiction, I respectfully dissent. In 2016, allegations of domestic violence were made against Elliott in Co lumbus, Ohio. Columbus authorities investigated the allegations and declined to arrest or prosecute Elliott based on conflicting information and insufficient evidence. Pursuant to its Personal Conduct Policy, the National Football League (NFL) launched a year
- long investigation. 1 Kia Roberts, 2 NFL Director of Investigations, and Lisa Friel, NFL Senior Vice President and Special Counsel for Investigations, conducted the investigation and prepared a report. Roberts is the only investigator who participat ed in all 22 of the witness interviews, including those with Elliott’s accuser, who was interviewed six different times. 3 Friel was not present for any of the witness interviews. Roberts, not Friel, was then excluded from the meetings with Goodell and hi s outside advisors to discuss the allegations against Elliott and whether Elliott should receive any punishment. Goodell is the person solely responsible, under the

1 Under the NFL Personal Conduct Policy: “In cases where a pl ayer is not charged with a crime, or is charged but not convicted, he may still be found to have violated the Policy if the credible evidence establishes that he engaged in conduct prohibited by this Personal Conduct Policy.” (Emphasis added).
2 Roberts is a former assistant district attorney who prosecuted domestic violence and other cases.
3 Various other NFL or NFLPA representatives were present for some of the interviews. Case: 17-40936 Document: 00514193815 Page: 11 Date Filed: 10/12/2017No. 17

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12 NFL

- National Football League Players Association (NFLPA) Collective Bargaining Agreement ( CBA), for punishing NFL players. We now know that Roberts’ recommendation was that there should be no punishment. On August 11, 2017, the NFL sent Elliott a letter informing him of Goodell’s decision to suspend him for six games. The NFLPA appealed on be half of Elliott pursuant to the CBA. Goodell assigned the appeal to Harold Henderson. During the arbitration proceedings, the NFLPA sought to compel the testimony of Roberts and the accuser. They also asked that the NFL provide the investigative notes. Again, Roberts was the only investigator to interview all witnesses, including the accuser, who is the sole witness to any alleged domestic violence. Two of the accuser’s six interviews were transcribed and are in the record. Roberts took notes on the ot her four interviews, but the NFL did not turn those notes over to the NFLPA. Additionally, the NFL objected to the request for Roberts to testify on the basis that her testimony would be “cumulative and unnecessary” in light of Friel’s attendance at the h earing. Importantly, Roberts had formed the opinion that the accuser was not credible. Henderson granted the motion to compel as to Roberts, but denied the requested relief as to the accuser and the investigative notes. During arbitration, it was reveale d that Goodell had met with Friel and other advisors, outside the presence of Roberts, to decide Elliott’s punishment. The NFLPA then sought to compel Goodell’s testimony to determine what information he had been provided before he decided to impose the s uspension. Henderson denied the request. The three

- day arbitration hearing ended on August 31, 2017, the record was closed, and Henderson stated that he would announce his decision shortly thereafter. The following day, September 1, 2017, the NFLPA sued the NFL on behalf of Elliott in the Eastern District of Texas seeking vacatur of the pending Case: 17-40936 Document: 00514193815 Page: 12 Date Filed: 10/12/2017No. 17

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13 decision of the arbitrator based on the factual scenario presented in this case. The NFLPA also filed an emergency motion for a temporary restraining order and a preliminary injunction. The district court conducted a preliminary injunction hearing on September 5, 2017. Also on September 5, Henderson issued his decision affirming Goodell’s six

- game suspension, and the NFL filed a complaint in the Southern District of New York (Case No. 1:17

- CV

- 06761

- KPF) seeking to confirm and enforce the arbitration award. The Texas district court delayed ruling on the NFLPA’s emergency motion and called for additional briefing due by Wednesday, September 6, 2017, on jurisdiction and the issuance of the arbitrator’s decision. On September 8, 2017, the district court entered a Memorandum Opinion and Order granting the NFLPA’s motion and enjoined the suspension of Elliott pending the court’s final ruling on the petition. On Septembe r 11, 2017, the NFL filed a notice of appeal and an emergency motion to stay the injunction in the district court. The NFL acknowledged the existence and requirements of Rule 8 of the Federal Rules of Appellate Procedure, but included the following statem ent: “Absent an order from this Court granting a stay, Respondents intend to seek a stay from the Fifth Circuit tomorrow morning.” Also on September 11, the district court entered an order for expedited briefing on the NFL’s emergency motion for stay. Th e NFL’s reply was due September 13 at 5 p.m. and the NFLPA’s response was due September 15 at 5 p.m. Both parties filed their briefs on September 13. Rather than wait for the district court to rule on its motion, the NFL then filed on September 15, 2017, an Emergency Motion for Stay Pending Appeal with this court seeking a ruling by September 19 and no later than September 26. The district court denied the NFL’s stay on September 18. This court allowed both deadlines to pass, as there is no emergency. However, panel Case: 17-40936 Document: 00514193815 Page: 13 Date Filed: 10/12/2017No. 17

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14 members called for supplemental briefing on the issue of jurisdiction and set the matter for oral argument. The majority now concludes th at the district court lacked subject matter jurisdiction when it issued the preliminary injunction, vacates, and remands with instructions to dismiss. I disagree and conclude that the district court indeed had subject matter jurisdiction. 4 I agree with t he majority that this court reviews questions of subject matter jurisdiction de novo. But I disagree with the majority’s repeated suggestion that we are here on the appeal of the district court’s preliminary injunction as opposed to the NFL’s motion for s tay. T he majority adopts the NFL’s position that the district court lacked subject matter jurisdiction because the NFLPA filed the action prematurely without having exhausted contractual procedures under the CBA , i.e., awaiting the issuance of the arbitrat or’s written decision. Specifically, they assert that exhaustion is required under the Labor Management Relations Act (LMRA) and that exhaustion means the final decision of the arbitrator must have issued. However, neither the NFL nor the majority cites a single case where a court held that the petitioner failed to exhaust in a situation like this. Instead, both cite various cases which are dissimilar and ignore cases which do not support a conclusion of lack of subject matter jurisdiction. The district court granted the preliminary injunction , saying: “Based upon the preliminary injunction standard, the Court finds, that Elliott did not receive a fundamentally fair hearing, necessitating the Court grant t he request for preliminary injunction.” The court concluded that it had jurisdiction under section 301 of the LMRA. As the court said in its September 8 order granting the stay:

4 Th e district court also should have been allowed, in the first instance, to co nsider the motion to dismiss presently pending before it. Case: 17-40936 Document: 00514193815 Page: 14 Date Filed: 10/12/2017No. 17

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15 For a federal court to maintain jurisdiction over the alleged breach of a co llective bargaining agreement, an LMRA “claim must satisfy three requirements: (1) a claim of a violation of (2) a contract (3) between an employer and a labor organization.” Carpenters Local Union 1846 of United Bhd. of Carpenters and Joiners of Am., AFL

- CIO v. Pratt

- Farnsworth, Inc. , 690 F.2d 489, 500 (5th Cir. 1982). As long as these three requirements are met an individual can sue for breach of the collective bargaining agreement. DelCostello v. Int’l Bhd. of Teamsters , 462 U.S. 151, 163 (1983) (citing Smith v. Evening News Ass’n, 371 U.S. 195 (1962)). Here, the NFLPA alleges a violation of a contract, the CBA. The CBA was entered into by the NFLPA, a labor organization, and the NFL, an employer.
Further, as the NFL conceded at oral argument, there is no explicit requirement of exhaustion in the LMRA . The LMRA states: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labo r organizations, 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.
29 U.S.C. § 185(a). The NFLPA asserts that the district court correctly exercised j urisdiction under the LMRA and cites Houston Refining, L.P. v. United Steel, Paper & Forestry, Rubber, Mfg. , 765 F.3d 396 (5th Cir. 2014), for the proposition that “an ‘alleged violation’ [of a CBA] satisfies section 301(a)'s jurisdictional requirement.” Id

. at 403 (citing Textron Lycoming Reciprocating Engine Div., AVCO Corp. v. United Auto., Aerospace & Agric. Implement Workers of Am., Int'l Union , 523 U.S. 653, 658 (1998). Further, “the alleged violation of a lab or contract is both necessary and sufficient to invoke federal subject

- matter jurisdiction under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a).” Id. at 405

- 06. This court concluded that, “[b]ecause a party Case: 17-40936 Document: 00514193815 Page: 15 Date Filed: 10/12/2017No. 17

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16 need only allege the violation of a labor contract to invoke federal subject

matter jurisdiction under section 301, this requirement was easily satisfied here.” Id . at 406. Such is the case here and our binding authority controls

. Thus, I agree with the NFLPA that exhaustio n is a prudential consideration and not a strict jurisdictional prerequisite. Additionally, the Supreme Court in Textron made clear that: “’Suits for violation of contracts’ under § 301(a) are not suits that claim a contract is invalid, but suits that cl aim a contract has been violated.” Textron , 523 U.S. at 657. The NFLPA asserts that the NFL violated the CBA. That alleged violation is all that is required to allow the district court to exercise jurisdiction. Moreover, as the majority concedes, the c ontrolling authority explicitly states that an employee is only required to “ attempt use of the contract grievance procedure.” Republic Steel Corp. v. Maddox , 379 U.S. 650, 652 (1965) (emphasis added). With regard to the majority’s quote from Maddox rega rding the exclusivity of a grievance procedure, in context, that quote is actually referencing “[a] contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit . . . .” Id . at 653. T here was no complete sidestep of available grievance procedures here. Instead, the NFLPA clearly attempted to use the contract grievance procedure set out in the CBA, as acknowledged by the majority. The NFLPA filed a lawsuit only after discovery of the NFL’s alleged violations of the CBA and the adverse rulings which prevented exploration of the extent of the alleged violations. Regardless, in Rabalais v. Dresser Indus tries , Inc ., 566 F.2d 518 (5th Cir. 1978), this court acknowledged the following excep tions to exhaustion : (1) the union wrongfully refuses to process the employee's grievance, thus violating its duty of fair representation, Vaca v. Case: 17-40936 Document: 00514193815 Page: 16 Date Filed: 10/12/2017No. 17

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17 Sipes, supra ; (2) the employer's conduct amounts to a repudiation of the remedial procedures specified in th e contract, id.; Boone v. Armstrong Cork Co ., 384 F.2d 285 (5th Cir. 1967); or (3) exhaustion of contractual remedies would be futile because the aggrieved employee would have to submit his claim to a group “which is in large part chosen by the (employer a nd union) against whom (his) real complaint is made.” Glover v. St. Louis

- S.F. Ry. Co ., 393 U.S. 324, 330, 89 S.Ct. 548, 551, 21 L.Ed.2d 519 (1969). See generally Smith v. Pittsburgh Gage & Supply Co ., 464 F.2d 870 (3d Cir. 1972).

Id . at 519. See also Maddox , 379 U.S. at 650 ; and Vaca v. Sipes , 386 U.S. 171,
184

- 185 (1967) (discussed more fully herein)

. This court has also said that an individual may attack an arbitration award where the grievance procedure was “substantially inadequate.” Harris v. Ch em. Leaman Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir. 1971). The Rabalais court noted that “[a]n employer can obviously take a stance contrary to that of the employee during the grievance process without being deemed to have repudiated that process.” Rabalais , 566 F.2d at 520. However, it is undisputed that failure to comply with the terms or procedures of the CBA is a breach. These exceptions establish that, “full exhaustion is not inevitably required by a court before it will exercise jurisdictio n under §301.” Ramirez

Lebron v. Int’l Shipping Agency, Inc. , 593 F.3d 124, 132 (1st Cir. 2010) (quoting Hayes v. New England Millwork Distribs., Inc. , 602 F.2d 15, 18 (1st Cir. 1979)). Further, any exhaustion requirement is not “unlimited,” particularly where “circumstances have impugned the integrity of the arbitration process.” Id . at 132. In Ramirez

- Lebron , the First Circuit said that “[t]his appeal in the end is about the fundamental fairness of the arbitration process. ” Id

. at 134 (emphasis origin al). The court further concluded, consistent with Vaca , 386 U.S. at 185, that an employer is “estopped” from using a CBA or an arbitration Case: 17-40936 Document: 00514193815 Page: 17 Date Filed: 10/12/2017No. 17

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18 award to shield itself from answering factual allegations that may have tainted the award. Id . at 134

- 135. More si gnificantly, the Ramirez

- Lebron court concluded, under Vaca , that the employer’s breach of the terms of the CBA constituted repudiation of the grievance procedures. Ramirez

- Lebron , 593 F.3d at 134. See also Vaca , 386 U.S. at 185. This authority directly contradicts the majority’s statement, without authority, that this opinion conflates a claim for breach of a CBA with a claim for repudiation of a CBA. 5 The district court here concluded that, under the second Rabalais exception above, the NFL had repudia ted the required procedures set forth in the CBA. The court further found, based upon the preliminary injunction standard, that Elliott did not receive a fundamentally fair hearing. Under Article 46 of the CBA, a player is entitled to counsel and has the right, along with the NFLPA and NFL, “to attend all hearings provided for in this Article and to present, by testimony or otherwise, any evidence relevant to the hearing.” Art. 46 § 2(b). Additionally, “the parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing.” Art. 46 at § 2(g)(i). The NFLPA and Elliott were arguably denied the right to “present, by testimony or otherwise, any evidence relevant to the hearing.” At the hearing, the NFL attempted to keep Roberts, the only investigator to interview all witnesses, from testifying and den ied access to the investigative notes and t he opportunity to question the accuser . The NFL’s arbitrator then den ied access to the investi gative notes. Four of the interviews with the accuser were not transcribed, but were in those notes. The arbitrator also denied the

5 The majority attempts to distinguish Ramirez

- Lebron . However, no party was excluded from arbitration in that case. Although there are no explicit allegations of fraud here, there are explicit allegations of a breach of contract which impugned the integrity of the process and resulted in repudiation. Case: 17-40936 Document: 00514193815 Page: 18 Date Filed: 10/12/2017No. 17

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19 opportunity to question the accuser, who was the only witness to any alleged domestic violence . After the NFLPA was succe ssful in compelling Roberts’ testimony, the NFLPA discovered that Roberts was excluded from meetings with Goodell and outside advisors. The arbitrator then denied the opportunity to question Goodell. The revelation of Roberts’ exclusion suggests that Goo dell was not fully informed before making his decision about the appropriate punishment. That is important for two reasons: 1) The arbitrator properly gave deference to the commissioner; and 2) a ll of that is “evidence relevant to the hearing.” A lso , as the NFL clearly relied on the accuser’s interviews and there were only transcripts of two of those si x interviews, the investigative
notes likely should have been exchanged. All of these actions “impugned the integrity of the arbitration process.” See Ramirez

- Lebron , 593 F.3d at 132. Thus, the NFL’s refusal to follow those agreed upon procedures in the CBA resulted in a repudiation of the grievance procedure sufficient to vest jurisdiction in the district court. Id . at 134. See also Vaca , 386 U.S . at 185; and Rabalais , 566 F.2d at 519. To briefly address the authority cited by the majority, I begin with Vaca , which the majority cites for the proposition that, “[o]utside of limited circumstances, the failure to ‘fully exhaust[]’ contracted for ‘ g rievance procedures ’ places an employee’s claim for breach of a collecti ve bargaining agreement beyond ‘ judicial review. ’” However, that is not what Vaca says. Vaca states: “ However, if the wrongfully discharged employee himself resorts to the courts bef ore the grievance procedures have been fully exhausted, the employer may well defend on the ground that the exclusive remedies provided by such a contract have not been exhausted. ” Vaca , 386 U.S. at 184. Further, the court said: However, because these co ntractual remedies have been devised and are often controlled by the union and the employer, they may Case: 17-40936 Document: 00514193815 Page: 19 Date Filed: 10/12/2017No. 17

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20 well prove unsatisfactory or unworkable for the individual grievant. The problem then is to determine under what circumstances the individual employee may obtain judicial review of his breach

- of

- contract claim despite his failure to secure relief through the contractual remedial procedures.

Id . at 184

- 185. The Court went on to say: “ To leave the employee remediless in such circumstances would

. . . be a great injustice. We cannot believe that Congress, in conferring upon employers and unions the power to establish exclusive grievance procedures, intended to confer

. . . such unlimited discretion to deprive injured employees of all remedies for breach of c ontract. ” Id

. The Vaca Court in no way said t hat only the ar bitrator’s written award constitutes exhaustion and that failure to fully exhaust places a breach of contract claim outside judicial review. Moreover, Vaca cites Maddox for the proposition that “it is settled that the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement.” Vaca , 386 U.S. at 184

- 185 (emphasis added). The attempt to exhaust was mad e here and the contractual remedy proved unsatisfactory

– those are the only requirements under Vaca

. The majority relies on Meredith v. L ouisiana Federation of Teachers , 209 F.3d 398 (5th Cir. 2000) , for the proposition that a federal court lacks jurisd iction absent exhaustion. However, the employee in Meredith failed to take the final step in the grievance procedure, i.e., “seeking to compel arbitration.” Id . at 402. Importantly, this court did not say that Meredith was required to await the arbitrat or’s written decision, but rather that she had to at least seek to compel arbitration

– as is consistent with Supreme Court precedent requiring an attempt. Here, the NFLPA took the final required step in the grievance procedure and attempted arbitration. Further, in Meredith , this court concluded that the district court properly found the employer was Case: 17-40936 Document: 00514193815 Page: 20 Date Filed: 10/12/2017No. 17

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21 estopped from raising the defense of non

- exhaustion of remedies because it repudiated the contract. Id . at 402

- 03. Additionally, because Meredith is easil y distinguished, there is no violation of the rule of orderliness. The majority also cites United Paperworkers Intern ationa l Union, AFL

CIO v. Misco , Inc., 484 U.S. 29 (1987)

. Misco involved the attempt to set aside a final arbitration award and did not i nvolve a breach of contract or an alleged issue of exhaustion. The general statement quoted by the majority neither contradicts nor complements the other authority cited herein. However, notably, the Misco Court said: “Of course, decisions procured by th e parties through fraud or through the arbitrator's dishonesty need not be enforced.” Id.
at 38. Here, there is no claim of fraud, but, without the ability to question Goodell under these circumstances, it is likely impossible to determine whether information was intentionally withheld from him or whether he was provided false information. Further, the cases the majority cites from the Sixth and Seventh Circuits both involved ongoing proceedings, unlike here, where the proceedings had concluded and the record was closed. Additionally, the majority states that the “parties contracted to have an arbi trator make a final decision.” The parties also contracted to be allowed “ to present, by testimony or otherwise, any evidence relevant to the hearing” and “to exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing.” Art. 46 § 2(b) , (g)(i) . The NFLPA alleges a breach of that contract. The record was closed and there was no chance of the arbitrator revisiting any erroneous rulings prior to the issuance of a written decision. The LMRA does not explicitly require exhaustion, the binding authority only requires an attempt, and it is undisputed that there are exceptions. Thus, the NFLPA’s complaint in district court was not premature. Case: 17-40936 Document: 00514193815 Page: 21 Date Filed: 10/12/2017No. 17

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22 For the reasons stated herein, I conclude that the distric t court properly exercised subject matter jurisdiction. Also, as the NFL is unable to show a likelihood of success on the merits or any irreparable injury for purposes of a stay, I would deny the motion for stay. Moreover, “the maintenance of the
status quo is an important consideration in granting a stay.” Dayton Bd

. of Educ

. v. Brinkman , 439 U.S. 1358 , 1359 (1978). The status quo is Elliott continuing to play pending resolution of the claim filed below

. Case: 17-40936 Document: 00514193815 Page: 22 Date Filed: 10/12/2017