UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

GENOS “D.J.” WILLIAMS, Plaintiff-Appellant,

v. THE NATIONAL FOOTBALL LEAGUE, Defendant-Appellee. No. 12-1255 (D.C. No. 1:12-CV-00650-CMA-MJW) (D. Colo.)

ORDER AND JUDGMENT *

Before HARTZ , ANDERSON , and EBEL , Circuit Judges.

Genos “D.J.” Williams, a linebacker for the Denver Broncos, appeals from the district court’s order gran ting the National Football L eague’s (NFL’s) motion for summary judgment and denying as moot his motion for a preliminary injunction. We have jurisdiction under 28 U.S.C. § 1291, a nd we AFFIRM for subs tantially the same reasons identified by th e district court.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 27, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - B ACKGROUND Pursuant to a collective bargaining agreement between the NFL Management Council and the NFL Players Associat ion, the NFL has adopted a policy “prohibit[ing] the use of anabolic/a ndrogenic steroids (i ncluding exogenous testosterone), stimulants, human or anim al growth hormones, whether natural or synthetic, and related or simila r substances.” Aplt. App., Vol. I at 159. To enforce the policy, all players are test ed at least once per league year. Moreover, players are randomly selected throughout the calendar year for testing. In addition to providing penalties for players who test positive, the policy also pe nalizes “[a]ny effort to substitute, dilute or adultera te a [urine] specimen, or to manipulate a test result to evade detection.” Id. at 163. On August 9, 2011, pursuant to the NFL’s annual testing regimen, Mr. Williams provided a urine specimen to a certified specime n collector at the Broncos’ training facility in Englewood, Colorado. Laboratory tests on the urine specimen showed “[n]o endogenous ster oids,” a finding “inc onsistent with a physiological urinary steroid profile.” Id. at 110. In other words, Mr. Williams’s “urine specimen had been determined not to be a human specimen.” Aplt. Br. at 10. On September 7, 2011, Mr. Williams appeared before the same specimen collector and provided a urine specimen under the NFL’s random testing regimen. The results of that test likewise showed “[n]o endoge nous steroids,” which is “inconsistent with a physiologi cal urinary steroid profile.” Aplt. App., Vol. I at 233.- 3 - Afterward, the National Center for Dr ug Free Sport, which oversees the NFL’s urine-specimen collection programs and enga ges collection compan ies to obtain the specimens from players, inte rviewed the specimen collector . He admitted that “at times [he] viewed from the side as opposed to full frontal.” Id. at 266. Because the collector failed to follow “sta ndard protocols” in “the va lidation process,” the Center suspended him from further collections, and his employment was terminated by the collections contractor. Id. Later, the collect or submitted an affi davit asserting that he “directly observed Mr. Willia ms provide a urine sample.” Id. , Vol. II at 486. On November 11, 2011, the NFL a nnounced that Mr. Williams was in violation of the NFL’s steroid policy based on the test results from his August 9 urine specimen. 1 As punishment, the NFL stated th at he would be “suspended for six regular-season games,” “placed on reasonable cause testing for the remainder of [his] career,” “required to return 6/17 of any applicable signing bonus,” suspended for at least eight games upon another violation, and reinst ated to play only upon the approval of the steroid policy’s administrator. Id. , Vol. I at 66-67. Mr. Williams appealed the NFL’s decision to arbitration. Prior to the arbitration hearing, on N ovember 16, 2011, Mr. Williams appeared before a new collector and provided a urin e specimen under the NFL’s Substances of Abuse program. While that specimen tested negative fo r controlled substances, the

1 Mr. Williams was apparently not given a second violation based on the September 7 test results beca use he had not yet been notif ied of a first violation. See id. , Vol. I at 319.- 4 - collector reported that during the collecti on process Mr. Williams “turned out of frontal view and a bottle fell to the floor. . . . [Mr. Williams] im mediately kicked the bottle out of the restroom towards his locker and his personal belongings.” Id. at 238. The NFL did not discipline Mr. Williams for this incident, but instead issued a warning. On December 13, 2011, the NFL held a hearing on Mr. Williams’s appeal. The arbitrator heard testimony from a num ber of witnesses concerning the NFL’s steroid policy and its impl ementation, and the colle ction and processing of Mr. Williams’s urine specimens . Mr. Williams testified it was his position that he “did not produce the [urine] specim ens on August 9 or September 7.” Id. at 323. As to the November 16 incident, Mr. Wil liams maintained th at the bottle was “something that [he] used for energy” before practice, and that hi s foot inadvertently struck it after it fell to the floor. Id. at 301 (internal quotation marks omitted). The hearing concluded afte r closing arguments. On January 16, 2012, two days after the Broncos were eliminated from the playoffs in the postseason, counsel for Mr. Williams requested by email that the arbitrator dismiss the case because he had failed to re nder a decision within the timeframe contemplated by the steroid policy. See id. at 180 (stating that “the Hearing Officer will evaluate the evidence and render a written decision with respect to disciplinary action within five (5) calendar days”). The arbitrator declined by email on January 19, stating that he “was as ked to delay a decision on this matter to- 5 - afford an opportunity for the parties to the governing co llective bargaining agreement, the NFL and the NFL[Players Association], to e xplore an agreed resolution of this dispute.” Id. , Vol. II at 372. The arb itrator further stated that “[t]his action is consistent with past practice.” Id. The parties do not dispute that the arbitrator had communicated with th e NFL’s general counsel and executive vice-president, Jeffrey Pash. On February 6, the arbitrator rend ered a decision denying Mr. Williams’s appeal. In reaching that re sult, he interpreted the steroid policy as placing “the burden . . . on the [NFL] to establish that a ny departure from its stated protocols did not materially affect the va lidity of the violation.” Id. at 376. The arbitrator found it “clear that Williams was involved in th ree separate incidents of attempted substitution of a specimen.” Id. at 379. As for the Au gust 9 urine specimen in particular, the arbitrator conc luded that the integrity of th e results was not in serious doubt: There is no break in the chain of cu stody which would materially affect the validity of the laboratory test. . . .

. . . . . . . Only one person has been shown to have a motive to substitute the specimen; W illiams[ ] is the only one with a lot at stake here, so I am persuaded of his culpability. There is no direct evidence in this record about how the bogus urine was submitted as Mr. Wil liams’[s] specimen, but the circumstantial evidence compels the conclusion that the substitution occurred either with [the August 9 collector’s] knowledge or through his failure to comply with requirements of the collection prot ocols. That is troubling, and it is suggested that the NFL and NFL[Players Association] take steps to address wh at appears to be, at least in some places, an environment of haste, ru shing, confusion and short cuts- 6 - around the collection process. However, in this case, to the extent that variations from established procedures or protocol occurred, I find that they did not materially affect the validity of the violation. Id. at 380-81. Mr. Williams filed suit in state court, seeking to vacate the ar bitrator’s decision. The NFL removed the case to fe deral court, where Mr. Williams moved for a preliminary injunction, sought discovery concerning the arbitr ator’s communication with Mr. Pash, and asked the court to “stay any motions fo r summary judgment” pending discovery. Doc. #42 at 8. The NFL moved for summary judgment and opposed Mr. Williams’s motions . A magistrate judge deni ed the requested discovery and declined to stay any summary-judgmen t motions, stating that Mr. Williams had not demonstrated prejudice from the delaye d arbitrator’s deci sion, and that the communication was collateral to the arbitr ation award because there was no evidence that “Mr. Pash somehow influenced [the ar bitrator’s] ultimate d ecision.” Aplt. App., Vol. II at 575. Mr. Williams then filed a brief that opposed summary judgment and alternatively asked the district court to defer a summary-judgment ruling pending discovery. He subsequently filed objections to the magistrate judge’s order. The district court overruled Mr. Williams’s objections and a ffirmed the magistrate’s decision. Finally, the district court granted the NFL’s summary-judgment motion and enforced the arbitration award. In doing so, the court not ed that the narrow standard- 7 - of judicial review applicable to labor-a rbitration awards limi ted its analysis to whether the arbitrator “‘even arguably c onstru[ed] or appl[ied ] the contract and act[ed] within the scope of his authority.’” Id . at 634 (quoting San Juan Coal Co. v. Int’l Union of Operating Eng’rs , 672 F.3d 1198, 1201 ( 10th Cir. 2012). Upon determining that Mr. Williams’s challenge to the arbitration award failed on the merits, the district court denied as moot his reque st for injunctive relief.
D ISCUSSION “We review a grant of summary judgment in a labor arbitration case de novo.” San Juan Coal Co. , 672 F.3d at 1200-01. We reiterate, however, that a court’s role in these types of arbitration cases is simply to determine wh ether the arbitrator strayed from the collective-bargaining agreement and “effectively dispense[d] his own brand of industrial justice.” Major League Baseball Players Ass’n v. Garvey , 532 U.S. 504, 509 (2001) (per curiam) (i nternal quotation marks omi tted). We conclude, for substantially the same reasons announced in the district c ourt’s thorough and well-reasoned order granting summary judgm ent, that Mr. Williams has failed to show such a wholesale abandonment of the collective-barg aining agreement. We add the following, however, in rega rd to Mr. Williams ’s claim that the district court should have deferred summary judgment a nd allowed him discovery as to “the details of the ex parte communications” between Mr. Pash and the arbitrator. 2

2 We assume for the sake of disc ussion that the communication between Mr. Pash and the arbitr ator constitutes an “ ex parte ” discussion. This case does not, (continued)- 8 - Aplt. Opening Br. at 42. Although the di strict court did not discuss Mr. Williams’s request for a Fed. R. Civ. P. 56(d) deferral when it gran ted summary judgment, it had already determined that he was not entitled to the discovery b ecause it went to a collateral issue in the arbitration. But we need not reach that determination because there is nothing in the record showing that Mr. Williams co mplained to th e arbitrator after learning on January 19, 2012, of the ex parte communication. Indeed, in the eighteen days between the revelation of the communication and the release of the arbitrator’s decision, Mr. Wil liams apparently lodged no obj ection. “It is well settled that disgruntled losers cannot first raise their objections after an award has been made.” Garfield & Co. v. Wiest , 432 F.2d 849, 853 (2d Ci r. 1970). A party “cannot remain silent, raising no objection during th e course of the arbitration proceeding, and when an award adverse to him has been handed down complain of a situation of which he had knowledge from the first.” Cook Indus., Inc. v. C. Itoh & Co. (Am.)
Inc. , 449 F.2d 106, 107–08 (2d Cir. 1971); see Williams v. Nat’l Football League , 582 F.3d 863, 885-86 (8th Cir. 2009) (failure to object to arbitrator’s partiality “prior to th[e] lawsuit” waived issue); Kodiak Oil Field Haulers, Inc. v. Teamsters Union Local No. 959 , 611 F.2d 1286, 1290 (9th Cir. 1980) (f ailure to object to arbitrator’s partiality “at the time the Board of Arbitration was convened” waived issue); Swift however, present a typical inde pendent, third-party arbitrator situation. Indeed, the steroid policy designates the NFL’s Commissione r or his designee as the arbitrator, Aplt. App., Vol. I at 169, and Mr. Pash is the NFL’s general counsel/executive vice-president. Consequently, a communication such as the one that occurred here is not unlikely or unforeseeable given the ster oid policy’s arbitrato r-selection provision.- 9 - Indep. Packing Co. v. Dist. Union Loca l One, United Food & Commercial Workers Int'l Union, AFL–CIO , 575 F. Supp. 912, 916 (N.D. N. Y. 1983) (applying waiver rule where party did not become aware of any bi as until after the clos e of the arbitration hearing, reasoning that “[d]es pite the fact that the he aring itself had closed, the arbitration proceeding continued until the tim e of the award”). Had Mr. Williams objected to the arbitrator’s ex parte communication cont emporaneously upon learning of it, the arbitrator could ha ve addressed it, potentially obvi ating the need for judicial review. We conclude that Mr. Williams waived any objection to the arbitrator’s ex parte communication. Therefore, Mr. Willi ams’s request to defer summary judgment to explore that waived issue lacked merit. C ONCLUSION The judgment of the district court is AFFIRMED for substantially the same reasons given by the district court in its June 21, 2012 order granting summary judgment.

Entered for the Court Per Curiam