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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                        Fifth Circuit

                                                                                     FILED
                                                                                October 12, 2017
                                      No. 17-40936
                                                                                  Lyle W. Cayce
                                                                                       Clerk
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 31, 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 National Football League (NFL) and the National


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 17-40936
Football League Management Council. Elliott and the NFL had been engaged
in the arbitration process following an investigation 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 that
Elliott should be suspended for six games. Under the collective bargaining
agreement between the NFLPA and the NFL, a player has the right to contest
before an arbitrator a player discipline determination by the league. Elliott
invoked that right and Harold 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
enjoined 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 district court with instructions 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). Therefore, the only basis
for jurisdiction in the district court would be pursuant to the LMRA.
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                                      No. 17-40936
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, they 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 Ashcroft 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 satisfy 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. of 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 that because Elliott has stated a claim
that satisfies these three elements, the district court was vested with
jurisdiction over this case. In response, the 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 subject 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 preliminary injunction.
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                                      No. 17-40936
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, 652 (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.” United Paperworkers Int’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 agreement 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
without 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 bargaining 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.
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                                 No. 17-40936
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 Arbaugh
v. Y&H Corp., 546 U.S. 500, 510–11 (2006), that 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 applied
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 label. 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 because Congress had not ranked the 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 (2011), “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 procedural 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.
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                                        No. 17-40936
       As discussed above, the Supreme Court has long treated the exhaustion
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 rule 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 Supreme Court precedent holding the exhaustion of remedies is a
jurisdictional prerequisite 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                             The
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 an intervening change in the law . . . .” Jacobs
v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
        5 Importantly, even if exhaustion were merely a mandatory claim-processing rule after

Arbaugh, Elliott’s failure to exhaust his remedies would 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 Elliott 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).
Decisions from the Sixth and Seventh Circuits 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
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                                      No. 17-40936
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 futile
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 exhaust his 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 the employer and union against whom his 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 bargaining 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 requirement 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. Whether exhaustion
was mandatory here does not turn on interpreting whether a prerequisite to filing a lawsuit
is a jurisdictional requirement under state law.
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                                       No. 17-40936
Rabalais v. Dresser Indus., Inc., 566 F.2d 518, 519 (5th Cir. 1978) (internal
citations omitted). 6
       The NFLPA only argues the repudiation exception to the exhaustion
requirements applies. An allegation that an employer has repudiated 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 dissenting 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 issued 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 dissenting 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 agreement 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
exception 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, secret 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 agreement 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 agreement 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.
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                                       No. 17-40936
F.3d at 403 (holding the repudiation exception applied where an employer
claimed the employee “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 were engaged in arbitration as provided for
under the collective bargaining agreement.                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 NFL would 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, jurisdiction 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 dissenting opinion is devoted to examining the merits of the NFLPA’s
lawsuit. While these arguments and concerns about the arbitration process may have merit,
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. Bank, 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 plaintiff makes entitle him to relief”).
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                                 No. 17-40936
        For the foregoing reasons, we VACATE the district court’s preliminary
injunction and REMAND to the district court with instructions to dismiss the
case.




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                                       No. 17-40936
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
       This is a case about undisclosed information, 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 investigator,
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
Columbus, 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 participated 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 his 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 player 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.
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                                 No. 17-40936
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
behalf 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 other 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 hearing.
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 revealed 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 suspension. 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
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                                 No. 17-40936
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 September 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 statement: “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. The 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
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                                       No. 17-40936
members called for supplemental briefing on the issue of jurisdiction and set
the matter for oral argument.
       The majority now concludes that 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 the 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 stay.
       The 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 arbitrator’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 the 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:



       4The district court also should have been allowed, in the first instance, to consider the
motion to dismiss presently pending before it.
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                                 No. 17-40936
            For a federal court to maintain jurisdiction over the alleged
      breach of a collective 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 labor
      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 jurisdiction
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 labor
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

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                                  No. 17-40936
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 exhaustion 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 claim 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 controlling 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 regarding
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. There 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 Industries, Inc., 566 F.2d 518 (5th Cir.
1978), this court acknowledged the following exceptions to exhaustion:
            (1) the union wrongfully refuses to process the employee's
      grievance, thus violating its duty of fair representation, Vaca v.

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                                 No. 17-40936
      Sipes, supra ; (2) the employer's conduct amounts to a repudiation
      of the remedial procedures specified in the 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 and 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. Chem. 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 jurisdiction 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 original). The court further concluded, consistent with Vaca, 386
U.S. at 185, that an employer is “estopped” from using a CBA or an arbitration

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                                      No. 17-40936
award to shield itself from answering factual allegations that may have tainted
the award. Id. at 134-135. More significantly, 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 repudiated 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 denied access to the investigative notes and the
opportunity to question the accuser. The NFL’s arbitrator then denied access
to the investigative 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.
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                                 No. 17-40936
opportunity to question the accuser, who was the only witness to any alleged
domestic violence. After the NFLPA was successful 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 Goodell
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) all of that is “evidence relevant to
the hearing.” Also, as the NFL clearly relied on the accuser’s interviews and
there were only transcripts of two of those six 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 ‘grievance
procedures’ places an employee’s claim for breach of a collective 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 before 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 contractual remedies have been devised
      and are often controlled by the union and the employer, they may

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                                   No. 17-40936
        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 contract.”
Id.
        The Vaca Court in no way said that only the arbitrator’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 made here and the contractual remedy proved
unsatisfactory – those are the only requirements under Vaca.
        The majority relies on Meredith v. Louisiana Federation of Teachers, 209
F.3d 398 (5th Cir. 2000), for the proposition that a federal court lacks
jurisdiction 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 arbitrator’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
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                                  No. 17-40936
estopped from raising the defense of non-exhaustion of remedies because it
repudiated the contract. Id. at 402-03. Additionally, because Meredith is
easily distinguished, there is no violation of the rule of orderliness.
      The majority also cites United Paperworkers International 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 involve 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 the 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
arbitrator 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.


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                                 No. 17-40936
      For the reasons stated herein, I conclude that the district 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.




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