Philadelphia Eagles wide receiver DeSean Jackson and former NFL wide receiver Terrell Owens have raised questions about the fairness of the NFL Players Association's arbitration procedures, according to league sources and documents obtained by Yahoo Sports.
Owens alleges the union is attempting to force him to use an arbitrator who he says is "essentially on [Drew] Rosenhaus' payroll," in a $6.5 million dispute between he and his former agent.
Jackson raised concern with being forced to use the same arbitrator — Roger Kaplan — in a dispute between he and Rosenhaus over more than $400,000. The wide receiver alleges he was never informed Kaplan was receiving money from Rosenhaus for serving as an arbitrator in an unrelated dispute between the agent and a former employee. Jackson says the financial relationship between Rosenhaus and Kaplan gives rise to the appearance of bias, and Jackson has asked Kaplan to recuse himself from his matter.
As for the unrelated dispute, documents obtained by Yahoo Sports indicate Rosenhaus and former employee Danny Martoe were responsible for placing in excess of $70,000 each in an escrow account for Kaplan to draw upon as costs were incurred in their arbitration. It is not known how much Kaplan will ultimately make for serving as the arbitrator in that matter.
Kaplan declined comment on the Owens and Jackson arbitration proceedings and the player's allegations of perceived bias.
Owens is suing Rosenhaus in state court for breach of fiduciary duty, fraud and negligence for allegedly introducing him to now-banned financial adviser Jeff Rubin and recommending Owens hire Rubin to manage his finances. Rosenhaus wants the case kicked out of court — where details of the dispute would become publicy available — and has requested Kaplan hear the matter instead.
Owens is adamant his dispute with Rosenhaus is a matter for the courts to decide, that the NFLPA doesn't have jurisdiction over the matter and does not want the player's association or their arbitrator involved.
While attorneys for Owens and Rosenhaus have privately fought over the issue since August, broader concerns about procedural fairness in NFLPA arbitrations have been raised in the past. The most notable example arose during a December 2006 U.S. House Subcommittee hearing that called the system's neutrality into question.
In the current matter, Owens says the Players Association is putting him at a significant disadvantage in his dispute with Rosenhaus by forcing him to have his case heard by Kaplan.
"Kaplan is essentially on Rosenhaus' payroll at the moment and, if the NFLPA cares anything about fairness and avoiding the appearance of bias, it should not hesitate to grant Owens' request [to provide the parties with a different arbitrator]," said Owens' attorneys, Curtis and Chase Carlson of Miami-based Carlson Lewittes in an August memo addressed to the NFLPA.
Rosenhaus' attorneys argued the money Kaplan stood to make while working on that matter wouldn't affect the arbitrator's objectivity. They also argued Rosenhaus would "be prejudiced" if the NFLPA appointed a different arbitrator to hear the dispute between he and Owens.
"[T]here is not even an "appearance of bias" arising from the unremarkable fact that Mr. Kaplan's fees are being split by Rosenhaus and another party in a wholly unrelated arbitration. At best, [Owens'] assertion that there will be an appearance of bias if Mr. Kaplan is appointed as the arbitrator is rank speculation."
Rosenhaus' claim relied, in part, on the fact Kaplan was the union's most experienced and knowledgeable arbitrator, and that he has been used "almost exclusively" to arbitrate NFLPA grievances for more than … (15) years." A review of NFLPA records reveals that the union has used Kaplan almost exclusively since 1994.
The NFLPA found Rosenhaus' arguments persuasive. NFLPA staff counsel Todd Flanagan sent a letter to the parties denying Owens' request for a different arbitrator shortly after reviewing the exchange between the parties, saying Kaplan was "the only 'skilled and experienced person' selected by the NFLPA" to hear these kinds of disputes.
"[The] argument of partiality, or the appearance of partiality, notwithstanding, Arbitrator Kaplan will judge this case on its merits. Accordingly, we will process this case in typical fashion."
Union spokesman George Atallah did not respond to an email, call or text for comment.
The NFLPA's approach confounded one former Congressman who questioned the union's arbitration practices during the congressional hearing in 2006.
"I have a bit of a problem; you know, there is an assertion by some that [Roger Kaplan] — and I know nothing about him — might not fit the definition of 'neutral arbitrator,' U.S. Rep. Bill Delahunt said during the hearing. "Has the NFLPA considered, as these cases come individually, rotating arbitrators?
"I am looking at it in a systemic way, to ensure that there is a random quality, if you will, to … the process of arbitration, as opposed to reliance on a single individual over an extended period of time. Because clearly, after 13 years, you know, you can be Mother Teresa, but you are going to start to develop an attitude on different issues, I mean, that is just human nature. And I wonder if there is a better system in terms of ensuring that the individual selected is a neutral—underscore ''neutral''—arbitrator and doesn't have a certain preordained view of individuals …because that does happen."
Delahunt concluded his time in office in 2011, but recently expressed concern to Yahoo Sports about what appeared to be the NFLPA disregarding Congress' direction and said it's possible they could renew their concern with the union's arbitration procedures.
"Given everything that's occurred, I'm really surprised that the NFLPA system itself hasn't accommodated the recommendations that were made by members of congress back in 2006 regarding the issue of procedural fairness in arbitration," Delahunt said this week.
"Many of us echoed the same sentiment that I expressed [in 2006]. I would have believed that at this point in time, simply for purposes of bolstering public confidence in the integrity of the system, meaningful changes would have been made."