Case: 1:16-cv-02889 Doc #: 1 Filed: 11/29/16 1 of 11. PageID #: 1

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

MICHAEL PENNEL JR.
493 North 9th Street
De Pere, WI 54115,
Plaintiff/Movant,
v.
NATIONAL FOOTBALL LEAGUE
PLAYERS ASSOCIATION
1133 20th Street NW
Washington, DC 20036
and
NATIONAL FOOTBALL LEAGUE
345 Park Avenue
New York, NY 10154
and
NATIONAL FOOTBALL LEAGUE
MANAGEMENT COUNCIL
345 Park Avenue,
New York, NY 10154,
Defendants/Respondents.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 1:16-cv-02889
Judge ___________________

Verified Complaint for Temporary
Restraining Order, Preliminary and
Permanent Injunction, Motion Requesting
that the Court Designate and Appoint
Arbitrator, and Request for a Declaratory
Judgment

BACKGROUND
Pursuant to Section 5 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 5,
Plaintiff/Movant Michael Pennel Jr. (“Pennel”) respectfully moves this Court for an order
designating and appointing an arbitrator to hear his pending discipline arbitration. The arbitrator
currently assigned to hear Mr. Pennel’s arbitration was improperly assigned, as Defendants the
National Football League Players Association (“NFLPA”), the National Football League
(“NFL”), and the National Football League Management Council (“NFLMC”)(collectively,

 Case: 1:16-cv-02889 Doc #: 1 Filed: 11/29/16 2 of 11. PageID #: 2

“Defendants”) failed to abide by the arbitrator selection and assignment provisions and
procedure set forth in the attached arbitration agreement (Exhibit A).
Because Defendants’ failure to abide by and enforce the arbitration procedure as written
will cause Pennel irreparable harm and injury, Pennel also respectfully requests that this Court
enjoin the arbitration of his pending discipline, including all pre-hearing submissions and
activities, pending this Court’s appointment of an arbitrator.
Pennel further pleads as follows:
PARTIES
1.

Pennel is resident of the State of Wisconsin who is employed as a professional

football player by the NFL Green Bay Packers franchise and resides at 493 North 9th Street, De
Pere, WI 54115.
2.

The NFLPA, located at 1133 20th Street, NW, Washington, DC 20036, is an

employee organization recognized as the exclusive bargaining representative of professional
football players employed by the 32 NFL franchises, one of which is located within this District.
3.

The NFL, located at 345 Park Avenue, New York, NY

10154, is an

unincorporated association of 32 separately owned and operated professional football franchises,
one of which is located within this District.
4.

The NFLMC, located at 345 Park Avenue, New York, NY 10154, is an entity

that represents the 32 separately owned and operated professional football franchises, one of
which is located within this District, in collective bargaining and labor relations and provides
such representation in this District.
JURISDICTION AND VENUE
5.

This is an action pursuant to Section 5 of the FAA, 9 U.S.C. § 5, Section 301 of

-2-

 Case: 1:16-cv-02889 Doc #: 1 Filed: 11/29/16 3 of 11. PageID #: 3

the Labor Management Relations Act, 29 U.S.C. § 185 and Section 2201 of the Declaratory
Judgments Act, 28 U.S.C. § 2201. This Court has subject matter jurisdiction in this action
pursuant to 28 U.S.C. § 1331.
6.

The NFLPA represents and derives revenues from professional football players

employed within this District.
7.

The NFL and the NFLMC derive revenues from professional football games

played within this District.
8.

The NFL and the NFLMC derive revenues from professional football

memorabilia and merchandise sold within this District.
9.

On or about August 7, 2016, while employed by the Green Bay Packers NFL

franchise, Pennel worked as a professional football player in Canton, Ohio, which is within this
District.
10.

Venue is proper in this Court under 28 U.S.C. § 1391 and 29 U.S.C. § 185, as the

NFL, the NFLMC, the NFLPA, and Pennel regularly transact business in this District.
FACTS
11.

The NFLMC manages an association of 32 professional football franchises

comprising the NFL.
12.

The NFLMC negotiated a collective bargaining agreement and employment

policies with the NFLPA governing the terms and conditions of Pennel’s employment.
13.

The NFLMC allegedly negotiated a Policy and Program on Substances of Abuse

with the NFLPA (the “Policy”). A true and accurate copy of the current Policy the NFLMC
alleges it negotiated with the NFLPA is attached as Exhibit A.
14.

The Policy is a collectively bargained agreement.

-3-

 Case: 1:16-cv-02889 Doc #: 1 Filed: 11/29/16 4 of 11. PageID #: 4

15.

Pennel is a member of the NFLPA.

16.

Section 1.5 of this Policy grants authority to discipline Players for violations of

the Policy.
17.

The NFLMC is attempting to impose discipline upon Pennel under the Policy.

18.

Section 4 of this Policy grants players the right to appeal the NFLMC’s

disciplinary decisions to arbitration.
19.

Section 4.1 of the Policy provides a specific method for the naming and

appointing of arbitrators to hear appeals, which states, in relevant part, as follows:
The Parties shall jointly select and be equally responsible for compensating no
fewer than three but no more than five arbitrators to act as hearing officers for
appeals under Section 1.5 of this Policy. Such arbitrators shall have appropriate
expertise in matters under this Policy and shall be active members in good
standing of a state bar.
Exhibit A at p. 22 (emphasis added).
20.

Section 4.1 of the Policy does not name specific arbitrators but states that there

shall be no fewer than three and no more than five arbitrators designated to hear appeals under
the Policy.
21.

Per the express terms of this Policy, arbitrators are assigned to hear specific

Section 1.5 appeals as follows, in relevant part:
The selected group of arbitrators shall designate one of its members to be the
Notice Arbitrator, who also will be responsible for assignment of the appeals.
Prior to the first preseason game, the Notice Arbitrator will ensure that at least
one arbitrator is assigned to cover every Tuesday of the playing season through
the Super Bowl. Appeals will automatically be assigned to the arbitrator assigned
to cover the fourth Tuesday following the date on which the Player is notified of
discipline.
Exhibit A at pp. 22-23.
22.

By a letter dated November 8, 2016, Adolpho A. Birch III, Senior Vice President

-4-

 Case: 1:16-cv-02889 Doc #: 1 Filed: 11/29/16 5 of 11. PageID #: 5

of Labor Policy & League Affairs for the NFL, notified Pennel that he faced discipline for an
alleged Policy violation, including his right to appeal under the Policy.
23.

On November 11, 2016, under Section 4.2 of the Policy, Pennel timely appealed

to arbitration the pending discipline referenced in Adolpho Birch III’s November 8, 2016.
24.

Pennel’s appeal is scheduled to take place on December 6, 2016.

25.

On November 23, 2016, counsel for the NFLMC notified Pennel via email to his

counsel that, contrary to the express terms of Section 4 of the Policy, there are only two
arbitrators available for assignment to hear appeals under the Policy. A true and accurate copy
of this email is attached as Exhibit B.
26.

Upon information and belief, there is no designated “Notice Arbitrator,” despite

the Policy requiring one.
27.

Upon information and belief, Arbitrators are not scheduled in accordance with the

written terms of the Policy.
28.

Upon information and belief, Defendants did not follow the agreed-to method for

naming and appointing arbitrators to hear Pennel’s appeal to arbitration under the Policy.
29.

The failure to appoint an arbitrator in accordance with the collectively bargained

Policy denies Pennel substantive rights that will cause him irreparable harm, injury, and damage.
30.

The injury and damage to Pennel includes, but is not limited to, substantial

reputational damages, the shortening of his career, and the inability to find like work for which
money damages will not adequately compensate him.
FIRSTCAUSE OF ACTION
(Motion under the FAA, 9 U.S.C. § 5, to Designate and Appoint Arbitrator)
31.

Pennel incorporates by reference the averments of the proceeding paragraphs, as

if fully restated herein.
-5-

 Case: 1:16-cv-02889 Doc #: 1 Filed: 11/29/16 6 of 11. PageID #: 6

32.

Section 5 of the FAA provides that:

If in the agreement provision be made for a method of naming or appointing an
arbitrator or arbitrators or an umpire, such method shall be followed; but if no
method be provided therein, or if a method be provided and any party thereto
shall fail to avail himself of such method, or if for any other reason there shall be
a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a
vacancy, then upon the application of either party to the controversy the court
shall designate and appoint an arbitrator or arbitrators or umpire, as the case may
require, who shall act under the said agreement with the same force and effect as
if he or they had been specifically named therein; and unless otherwise provided
in the agreement the arbitration shall be by a single arbitrator.
***
33.

Section 4.1 of the Policy requires that there be no fewer than three arbitrators to as

act as hearing officers for appeals under Section 1.5 of the Policy.
34.

As of the date of this filing, and as confirmed by the NFLMC’s counsel on

November 23, 2016, there are only two arbitrators available for assignment to hear appeals under
the Policy. See Exhibit B.
35.

On or before November 28, 2016, the NFLMC was required to produce

documentation authorizing the use of only two arbitrators under the Policy. The NFLMC did not
produce any such documentation.
36.

Section 4.1 of the Policy requires that one of the three to five arbitrators

designated to hear appeals under the Policy be designated as the “Notice Arbitrator” who is
responsible for ensuring that at least one arbitrator is scheduled to hear appeals on every Tuesday
of the playing season through the Super Bowl.
37.

Upon information and belief, as of the date of this filing, there is no Notice

Arbitrator as required by the express written terms of the Policy.
38.

Upon information and belief, as of the date of this filing, arbitrators are not

assigned to hear appeals per the express written terms of the Policy.

-6-

 Case: 1:16-cv-02889 Doc #: 1 Filed: 11/29/16 7 of 11. PageID #: 7

39.

There has been a lapse in express provisions of the Policy regarding the method of

naming and appointing an arbitrator for Pennel’s appeal.
40.

The NFLPA failed to abide by its duty of fair representation to Pennel by

allowing the lapse in express provisions of the Policy regarding the method of naming and
appointing an arbitrator for Pennel’s appeal.
41.

Under Section 5 of the FAA, failure to abide by the Policy’s procedure for

naming an arbitrator to hear Pennel’s appeal authorizes this Court to name an arbitrator to hear
Pennel’s appeal.
42.

Pennel is entitled to a temporary restraining order, preliminary injunctive relief,

and permanent injunctive relief enjoining and restraining Defendants from proceeding with his
appeal hearing scheduled for December 6, 2016, including all pre-hearing submissions and
activities.
SECOND CAUSE OF ACTION
(Request for a Declaratory Judgment under 28 U.S.C. § 2201)
43.

Pennel incorporates by reference the averments of the proceeding paragraphs, as

if fully restated herein.
44.

The Policy expressly requires that Defendants maintain no fewer than three

arbitrators to hear Section 1.5 appeals.
45.

The Policy expressly requires that one of the arbitrators is designated as the

“Notice Arbitrator” and that the Notice Arbitrator assign arbitrators to cover every Tuesday of
the playing season through the Super Bowl.
46.

Counsel for the NFLMC has admitted that there are fewer than three arbitrators to

hear Section 1.5 appeals. See Exhibit B.
47.

Upon information and belief, as of the date of this filing, there is no Notice
-7-

 Case: 1:16-cv-02889 Doc #: 1 Filed: 11/29/16 8 of 11. PageID #: 8

Arbitrator as required by the express written terms of the Policy.
48.

Upon information and belief, as of the date of this filing, arbitrators are not

assigned to hear appeals per the express written terms of the Policy.
49.

A real and justiciable controversy exists between Pennel on one hand and

Defendants on the other concerning whether the Defendants ongoing failure and/or refusal to
comply with the arbitrator appointment and assignment terms of the Policy breaches the Policy.
50.

A real and justiciable controversy exists between Pennel on one hand and

Defendants on the other concerning whether the Policy entitles Pennel to have his appeal heard
by a neutral arbitrator appointed and assigned according to the terms of the Policy.
51.

Pennel faces a significant loss of income and due process rights under the Policy

if Defendants are allowed to breach the Policy and deny Pennel protections to which he is
entitled.
52.

Pursuant to 28 U.S.C. § 2201, Pennel is entitled to a declaratory judgment that:
a. Defendants are in violation of the Policy’s requirements regarding
appointment and assignment of arbitrators; and
b. The Policy entitles Pennel to have his appeal heard by an arbitrator
appointed and assigned in accordance with the express provisions of the
Policy.

53.

The Attorney Certification required by Federal Rule of Civil Procedure 65 is

attached as Exhibit C.
PRAYER FOR RELIEF
Pennel prays for the following relief:
a.

That this Honorable Court designate and appoint a neutral arbitrator to

-8-

 Case: 1:16-cv-02889 Doc #: 1 Filed: 11/29/16 9 of 11. PageID #: 9

hear his appeal;
b.

That this Honorable Court enjoin the arbitration of his appeal under the
Policy, including any pre-hearing submissions and activities, until such
time as this Honorable Court appoints a neutral arbitrator to hear Pennel’s
appeal;

c.

The declarations described above.

d.

That this Honorable Court require Defendants to pay his costs and
attorneys’ fees associated with this application; and

e.

That this Honorable Court award Pennel any other legal or equitable relief,
which it deems just, equitable, and proper.
Respectfully submitted,
ZASHIN & RICH CO., L.P.A.
s/ Stephen S. Zashin
Stephen S. Zashin - OH # 0064557
ssz@zrlaw.com
Patrick J. Hoban - OH #0079794
pjh@zrlaw.com
David R. Vance - OH #083842
drv@zrlaw.com
Ernst & Young Tower
950 Main Avenue, 4th Floor
Cleveland, OH 44113
Telephone: (216) 696-4441
Facsimile: (216) 696-1618
Attorneys for Plaintiff/Movant,
Michael Pennel Jr.

-9-

 Case: 1:16-cv-02889 Doc #: 1 Filed: 11/29/16 10 of 11. PageID #: 10

CERTIFICATE OF SERVICE
I certify that on November 29, I electronically filed the forgoing document and served the
same on attorneys for the Defendants/Respondents via email:
Joe Briggs, Esq.
1133 20th Street NW
Washington, DC 20036
Joe.Briggs@nflpa.com
Attorney for Defendant/Respondent,
The NFLPA
and
Kevin Manara, Esq.
345 Park Avenue,
New York, NY 10154
Kevin.Manara@nfl.com
Attorney for Defendants/Respondents,
The NFL and NFLMC
s/ Stephen S. Zashin
Stephen S. Zashin - OH # 0064557
ssz@zrlaw.com
Patrick J. Hoban - OH #0079794
pjh@zrlaw.com
David R. Vance - OH #083842
drv@zrlaw.com
ZASHIN & RICH CO., L.P.A.
Ernst & Young Tower
950 Main Avenue, 4th Floor
Cleveland, OH 44113
Telephone: (216) 696-4441
Facsimile: (216) 696-1618
Attorneys for Plaintiff/Movant,
Michael Pennel Jr.

-10-

 Case: 1:16-cv-02889 Doc 1 Filed: 11/29/16 11

VERIFICATI 

of 11. PagelD 11


I, Michael Fennel Jr., based on my personal knowledge and pursuant to 28 1746

I.
declare that I have personal knowledge of the facts in the forego ng Veri?ed Complaint and that

these facts are true to the best of my knowledge, information, and belief.

FURTHER DECLARANT SAYETH NAUGHT.


I declare pursuant to 28 U.S.C. 1746 and under penalty of perjury that the foregoing is

true and correct.

Executed on November 29, 2016. g, 




2/

 

Michael Pennel