United States Soccer Federatio v. United States National Soccer , 838 F.3d 826 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3402
UNITED STATES SOCCER FEDERATION, INC.,
Plaintiff-Appellant,
v.
UNITED STATES NATIONAL SOCCER TEAM PLAYERS
ASSOCIATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 9899 — Virginia M. Kendall, Judge.
____________________
ARGUED MARCH 31, 2016 — DECIDED SEPTEMBER 22, 2016
____________________
Before MANION and KANNE, Circuit Judges and PEPPER,
District Judge. ∗
KANNE, Circuit Judge. Soccer is called “the beautiful
game,” 1 but the collective-bargaining process behind the
∗ The Honorable Pamela Pepper, United States District Court for the
Eastern District of Wisconsin, sitting by designation.
2 No. 15-3402
sport can be ugly. This case matches Plaintiff United States
Soccer Federation, Inc. (“US Soccer Federation”), the nation-
al governing body for soccer in the United States, against
Defendant United States National Soccer Team Players As-
sociation (“Players Association”), the labor union for mem-
bers of the Men’s National Team, in a dispute over their cur-
rent collective bargaining agreement (“CBA”) and uniform
player agreement (“UPA” and collectively with CBA,
“CBA/UPA”).
The present case kicked off in 2013, when the Players As-
sociation disapproved the US Soccer Federation’s proposed
tequila poster advertisement, which contained player imag-
es. Counterattacking, the US Soccer Federation issued a no-
tice, declaring that the CBA/UPA does not require Players
Association approval for use of player likenesses for six or
more players in print creative advertisements by sponsors,
based on the express terms of the agreement. Crying foul,
the Players Association filed a grievance and demanded ar-
bitration, arguing that the CBA/UPA does require this, based
on the past practice of the parties.
The arbitrator issued an award in favor of the Players
Association. The district court confirmed the arbitrator’s
award and granted summary judgment for the Players As-
sociation. The US Soccer Federation appealed. We reverse.
(…continued)
1 PELÉ WITH ROBERT L. FISH, PELÉ, MY LIFE AND THE BEAUTIFUL GAME
(1977).
No. 15-3402 3
I. BACKGROUND
We begin with a brief synopsis of the relevant provisions
of the CBA/UPA for this case. Then, we summarize the per-
tinent factual background and procedural history.
A. Key Provisions in the CBA/UPA
Since 1997, US Soccer Federation and the Players Associ-
ation have negotiated and executed four CBAs. The current
CBA was established in 2011, revised in 2013, and expires in
2018. (R. 41 Ex. B [hereinafter CBA].)
Article IV of the CBA incorporates the UPA, which binds
all members of the Players Association, including the Men’s
National Team. (R. 41 Ex. B [hereinafter UPA].)
The current CBA/UPA is constrained by integration and
no-modification clauses, as well as a non-waiver provision. 2
The integration and no-modification clauses provide that the
CBA/UPA is “deemed the complete agreement between the
parties” and “no understanding contained in this Agreement
shall be modified, altered or amended, except by a writing
signed by the party against whom enforcement is sought.”
UPA § 13(a); CBA § 7.1. The non-waiver provision states that
“failure of either party to insist, in any one or more instanc-
es, on the performance of any terms or conditions of this
Agreement shall not be construed as a waiver or relin-
quishment of any rights granted” by the CBA/UPA. UPA
§ 13(c).
2 The integration clause is also called a merger clause or zipper clause.
4 No. 15-3402
Article V of the CBA outlines the grievance and arbitra-
tion procedure for resolving disputes arising from the “in-
terpretation or application of, or compliance” with the
CBA/UPA. The scope of the arbitrator’s authority is express-
ly delineated:
The decision of the Impartial Arbitrator will consti-
tute full, final and complete disposition of the
grievance, as the case may be, and will be binding
upon the Player(s) involved and the parties to this
Agreement; provided, however, that the Impartial
Arbitrator will not have the jurisdiction or authori-
ty to add to, subtract from, or alter in any way the
provisions of this Agreement or any Uniform Play-
er Agreement. Furthermore, the Impartial Arbitra-
tor will not have the jurisdiction or authority to add
to, subtract from, or alter in any way the provisions
of any exhibit to this Agreement or any exhibit to
the Uniform Player Agreement unless there is a
conflict or inconsistency between the provisions of
the exhibit and this Agreement or any Uniform
Player Agreement, in which case the Impartial Ar-
bitrator may conform the exhibit to this Agreement
or the Uniform Player Agreement. In resolving
grievances, the Impartial Arbitrator has the author-
ity to interpret, apply and determine compliance
with any provision of this Agreement, or Uniform
Player Agreement or exhibit thereto and to award
monetary damages and/or declaratory or injunctive
relief.
CBA § 5.8. In short, an arbitrator “has the authority to inter-
pret, apply and determine compliance with [the
CBA/UPA],” but he cannot “add to, subtract from, or alter in
any way the provisions of [the CBA/UPA].” Id.
No. 15-3402 5
Finally, the substantive provision at issue in this case is
Section 6 of the UPA, which governs the use of player like-
nesses taken or created during US Soccer Federation activity.
Under Section 6(b), “[e]xcept as set forth below, [the US Soc-
cer Federation] may not use or allow others to use Player’s
Likeness without the agreement of Player or Player’s repre-
sentative.” One such exception occurs in Section 6(f)(i),
which governs sponsor use of player likenesses for groups of
six or more players:
Six or More Players – Use by Federation Sponsor. If
Player's Likeness is used by a “Partner” of the Fed-
eration (as defined in 6(h) 3) for any Non-
commercial Use or in a Partner's advertising or
promotions, and if the advertising, promotion, or
Non-commercial Use includes six (6) or more
members of any Federation national team (e.g.,
team poster or collage), Federation will request, but
not require, the Partner to make a contribution in
an amount to be determined in the Partner's sole
and absolute discretion to the applicable Player
Pool(s), provided however, with respect to any use
by a Partner in a ‘Spot’ (as defined in 6(h) 4), prior
to such use, Federation shall provide a copy of such
Spot to the Players Association for its approval,
which approval shall be considered in good faith.
3 Section 6(h) defines “Partners” as “sponsors or partners of [the US Soc-
cer Federation].
4 Section 6(h) defines “Spots” as “video commercial spots (which in-
cludes videos to be broadcast or disseminated or posted in any medium
including television commercials).”
6 No. 15-3402
Such uses by Partners specifically exclude any Li-
censing Purposes.
Section 6(f)(i) divides the use of player likenesses into two
categories: (1) non-Spot, which includes non-commercial vid-
eo and print creatives, and (2) Spot, which is defined as
commercial video. For non-Spot advertisements, Section
6(f)(i) provides that the US Soccer Federation “will request,
but not require” a sponsor donation to a player pool. For
Spot advertisements, Section 6(f)(i) provides that the US Soc-
cer Federation “shall provide a copy of such Spot to the
Players Association for its approval.”
B. Factual Background and Procedural History
From approximately 2001 until 2013, the US Soccer Fed-
eration voluntarily submitted print creatives to the Players
Association for review, before authorizing sponsor use.
In 2013, the Players Association disapproved a proposed
print creative submitted by the US Soccer Federation—a
poster advertisement for el Jimador, a popular mid-shelf te-
quila brand. The US Soccer Federation initially responded by
filing a grievance and demanding arbitration under the
CBA/UPA, but later withdrew the action. On February 20,
2014, the US Soccer Federation issued a declaration to the
Players Association, stating that it had “no contractual obli-
gation to submit print/digital creative pieces containing the
likeness of six (6) or more national team players to the Play-
ers Association (PA) for its advance approval” and would no
longer be doing so in the future. (R. 44 at 11.)
On February 27, 2014, the Players Association filed a
grievance and demanded arbitration under the CBA/UPA,
No. 15-3402 7
claiming that the US Soccer Federation’s declaration consti-
tuted an anticipatory breach of the CBA/UPA.
Following six days of hearings, on September 12, 2014,
the arbitrator found for the Players Association, framing the
issue before him as follows:
Whether the United States Soccer Federation, under
the terms of the Collective Bargaining Agreement
and the Uniform Players Agreement, is required by
the terms of the Agreements or past dealings be-
tween the parties to submit to the United States Na-
tional Soccer Team Players Association for its ad-
vance review and approval non-video print and
digital creatives containing the likenesses of six (6)
or more players to be used by [the US Soccer Fed-
eration] or its sponsors in noncommercial or adver-
tising and promotional materials?
(R. 41-7 at 5–6.)
Opening his discussion, the arbitrator declared that “an
arbitrator only needs to construe the meaning of a collective
bargaining agreement when the contract language is indefi-
nite or ambiguous.” (Id. at 19.) He continued, “[i]f the lan-
guage is clear and unambiguous, meaning the ordinary
reading of the language cannot reasonably be construed
with more than one meaning, arbitrators will apply its plain
meaning and not look outside the four-corners of the con-
tract to ascertain the intentions of the parties.” (Id.)
Turning to the CBA/UPA, the arbitrator asserted that the
agreement “makes clear that there is no specific contractual
provision that requires [the US Soccer Federation] to submit
print creatives of six (6) or more players to the Players Asso-
ciation for its approval.” (Id. at 21.) Then, he determined that
8 No. 15-3402
the CBA/UPA is “silent as to this point” because “[t]here is
no explicit contract language that requires [the US Soccer
Federation] to submit to such an approval process, just as
there is no language laying out another process for the re-
view of print creatives.” (Id.) Additionally, the arbitrator
noted that “the UPA clearly contemplates that [the US Soc-
cer Federation’s] sponsors might make use of print crea-
tives.” (Id.)
After acknowledging that he cannot create “new rights in
the parties’ CBA/UPA,” the arbitrator determined that the
agreement was ambiguous and interpreted it in accordance
with the parties’ past practice:
It is the role of the Impartial Arbitrator to interpret
the meaning of the contract when there is ambigui-
ty, as there is here when the contract is silent as to
the procedure for the approval of print creatives
submitted by sponsors, which Section 6 of the UPA
certainly anticipates. … [O]ne cannot ignore that
[the US Soccer Federation] has openly and repeat-
edly forwarded print creatives to the Players Asso-
ciation for its review and approval for more than a
decade. It would defy sound judgment to draw a
conclusion as to the intent of the parties by consid-
ering only actions they did not take but refusing to
look squarely at actions they did take. The arbitra-
tor’s only goal is to shed light on the intent of the
parties, which may be reflected by their actions and
a mutually acted upon custom or past practice,
which is perhaps the most widely used standard or
lens relied upon by arbitrators to interpret contrac-
tual ambiguity.
No. 15-3402 9
(Id. at 40.) Continuing, the arbitrator found that his consider-
ation of the parties’ past practice did not violate the
CBA/UPA’s arbitration, integration, and no-modification
provisions because he was interpreting the contract by re-
solving an ambiguity. (Id. at 52–53.) In conclusion, the arbi-
trator held that “[t]he long-standing practice of submitting
print creatives to the Players Association for its approval is
an implied term of the CBA/UPA by virtue of a bona fide
past practice” and entered an award in favor of the Players
Association. (Id. at 53.)
Subsequently, the US Soccer Federation filed suit in fed-
eral district court to vacate the arbitrator’s award, pursuant
to § 301 of the Labor Management Relations Act, 29 U.S.C.
§ 185, arguing that the arbitrator exceeded his authority by
relying on the parties’ past practice instead of the express
terms of the CBA/UPA. The Players Association counter-
claimed for enforcement of the award. Both parties moved
for summary judgment.
On September 29, 2015, the district court denied the US
Soccer Federation’s motion and granted the Players Associa-
tion’s motion, confirming the arbitrator’s award. United
States Soccer Fed'n, Inc. v. United States Nat'l Soccer Team Play-
ers Ass'n, 140 F. Supp. 3d 738, 741 (N.D. Ill. 2015). The dis-
trict court began by “emphasizing its extremely limited au-
thority to review the decisions of arbitrators.” Id. at 747. The
district court found that the “arbitrator considered the
CBA/UPA, interpreted the CBA/UPA, and reached a conclu-
sion. He did exactly what the parties bargained for under the
CBA/UPA.” Id. at 748. The district court explained that alt-
hough “the arbitrator did not expressly state that the agree-
ment’s silence on this point created an ambiguity” and “the
10 No. 15-3402
arbitrator’s interpretation may have been unsound, at times
invoking the terms ‘silence’ and ‘ambiguity’ far too cavalier-
ly,” this was “not enough” to overturn the award under the
applicable standard of review. Id. at 749–50. Accordingly, the
district court could not conclude “that the arbitrator’s reli-
ance on past practice fell outside his authority to interpret
and apply the terms of the parties’ CBA/UPA.” Id. at 750.
The US Soccer Federation appealed.
II. ANALYSIS
This court reviews “de novo a district court's decision on
cross-motions for summary judgment, meaning that we re-
view the arbitrator's decision as if we were the court of first
decision.” United Food & Commercial Workers, Local 1546 v.
Illinois Am. Water Co., 569 F.3d 750, 754 (7th Cir. 2009) (cita-
tions omitted).
“Judicial review of arbitration awards is extremely lim-
ited.” Johnson Controls, Inc., Sys. & Servs. Div. v. United Ass'n
of Journeymen, 39 F.3d 821, 824 (7th Cir. 1994) (collecting cas-
es). The Supreme Court has held that, “[a]s long as the arbi-
trator's award ‘draws its essence from the collective bargain-
ing agreement,’ … the award is legitimate.” United Paper-
workers Int'l Union v. Misco, Inc., 484 U.S. 29, 36 (1987) (quot-
ing United Steelworkers v. Enter. Wheel & Car Corp., 363 U.S.
593, 597 (1960)). In other words, the question presented to “a
federal court asked to set aside an arbitration award … is not
whether the arbitrator or arbitrators erred in interpreting the
contract; it is not whether they clearly erred in interpreting
the contract; it is not whether they grossly erred in interpret-
ing the contract; it is whether they interpreted the contract.”
Hill v. Norfolk & W. Ry. Co., 814 F.2d 1192, 1194–95 (7th Cir.
1987).
No. 15-3402 11
Judicial deference to arbitration, however, is not unlim-
ited. “[A]n arbitrator is confined to interpretation and appli-
cation of the collective bargaining agreement; he does not sit
to dispense his own brand of industrial justice.” Enter. Wheel
& Car Corp., 363 U.S. at 597. “When the arbitrator’s words
manifest an infidelity to this obligation, courts have no
choice but to refuse enforcement of the award.” Id. A court is
empowered to vacate an arbitrator’s award if “the arbitrator
had exceeded the powers delegated to him by the parties.”
Dexter Axle Co. v. Int'l Ass'n of Machinists, 418 F.3d 762, 768
(7th Cir. 2005) (citing Enter. Wheel & Car Corp. 363 U.S. at 597
and Ethyl Corp. v. United Steelworkers of Am., 768 F.2d 180, 184
(7th Cir. 1985)). Because the arbitrator is typically limited to
interpreting the contract, if “there is no possible interpretive
route to the award,” then a “noncontractual basis can be in-
ferred and the award set aside.” Chicago Typographical Union
No. 16 v. Chicago Sun-Times, Inc., 935 F.2d 1501, 1505–06 (7th
Cir. 1991).
On appeal, the US Soccer Federation argues the arbitra-
tor’s award should be vacated. Specifically, it argues that,
with regard to sponsor use in print creatives of player like-
nesses for six or more players, the terms of the CBA/UPA are
clear and unambiguous and the arbitrator exceeded his au-
thority in interpreting the agreement to require Players As-
sociation approval, based on past practice. We agree.
As an initial matter, the arbitrator erred in his determina-
tion that “there is ambiguity … here when the contract is si-
lent as to the procedure for the approval of print creatives
submitted by sponsors, which Section 6 of the UPA certainly
anticipates.” (R. 41-7 at 40.)
12 No. 15-3402
This court has defined “ambiguity,” in a collective bar-
gaining agreement context, as “something that makes it pos-
sible to interpret a document reasonably in more than one
way,” Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir.
2000); see also Young v. N. Drury Lane Prods., Inc., 80 F.3d 203,
205 (7th Cir. 1996) (“[w]e must enforce the terms of a collec-
tive bargaining agreement when those terms are unambigu-
ous … [i]f the language of such an agreement lends itself to
one reasonable interpretation only, it is not ambiguous.”).
Furthermore, this court has held that “there must be either
contractual language on which to hang the label of ambigu-
ous or some yawning void … that cries out for an implied
term. Extrinsic evidence should not be used to add terms to
a contract that is plausibly complete without them.” Bidlack
v. Wheelabrator Corp., 993 F.2d 603, 608 (7th Cir. 1993).
Here, the arbitrator erred. We echo the district court’s ob-
servation that the arbitrator “at times invoke[ed] the terms
‘silence’ and ‘ambiguity’ far too cavalierly.” United States
Soccer Fed'n, 140 F. Supp. 3d at 749. Contrary to the arbitra-
tor’s determination, the CBA/UPA is not silent as to the ap-
proval procedure for sponsor use of print creatives: the
agreement explicitly provides that, for sponsor use of print
creatives with player likenesses for six or more players, the
US Soccer Federation “will request, but not require, the
[sponsor] to make a contribution … to the applicable Player
Pool(s).” UPA § 6(f)(i). Moreover, the applicable terms of the
CBA/UPA are clear and unambiguous because they can be
reasonably construed only in one way—that the US Soccer
Federation “will request, but not require” a sponsor contri-
bution to a player pool. There is no other reasonable inter-
pretation, much less one that includes a requirement for
Players Association approval. In other words, with regard to
No. 15-3402 13
sponsor use of print creatives in the CBA/UPA, there is no
“yawning void” or “contractual language on which to hang
the label of ambiguous.” Bidlack, 993 F.2d at 608. And the ar-
bitrator’s determination of ambiguity, as well has his ensu-
ing interpretation based past practice, “add[ed] terms to a
contract that is plausibly complete without them.” Id.For context, we provide a more detailed discussion of the
relevant provisions of the CBA/UPA. As discussed, Section
6(f)(i) of the UPA separates sponsor use of the likenesses of
six or more players into two categories: (1) non-Spot, which
includes non-commercial video and print creatives, and (2)
Spot, which is defined as commercial video. For non-Spot
advertisements, Section 6(f)(i) expressly states that the US
Soccer Federation “will request, but not require” a sponsor
contribution to the applicable player pool. In contrast, for
Spot advertisements, Section 6(f)(i) expressly declares that
the US Soccer Federation “shall provide a copy … to the
Players Association for its approval.” Immediately subse-
quent, Section 6(f)(ii), provides an explanation for the Spot
“approval” requirement—“[w]ith respect to Spots, the Play-
ers Association has expressed concern that there is a greater
likelihood of an impermissible implied endorsement in
Spots.” The Spot “approval” requirement is then confirmed
in Section 6(h), which governs Spot advertisements for five
or more players—“[n]otwithstanding any other provision in
this Agreement, the Players Association shall approve video
commercial spots.”
These contractual provisions are clear and unambiguous,
establishing that the parties contemplated and anticipated
the use of player likenesses for six players or more in both
non-Spot and Spot mediums. First, for non-Spot advertise-
14 No. 15-3402
ments, the parties agreed only to “request, but not require” a
sponsor contribution to the applicable player pool, nothing
more or less. And the CBA/UPA contain no other terms that
contradict this “request, but not require” condition for non-
Spot advertisement. Second, for Spot advertisements, the
parties agreed only to “approval” by the Players Association,
nothing more or less. Not only do Sections 6(f)(ii) and 6(h)
confirm the “approval” requirement for Spot advertise-
ments, but neither provision suggests extension of this re-
quirement to non-Spot advertisements.
To recap, the relevant provisions of the CBA/UPA are
clear, unambiguous, and not silent because they expressly
provide that for non-Spot advertisements, which include
print creatives, the US Soccer Federation “will request, but
not require” a sponsor contribution to the applicable player
pool. UPA § 6(f)(i). There is no basis for any other interpreta-
tion and thus “no possible interpretive route to the award”
that requires Players Association approval. Chicago Typo-
graphical Union, 935 F.2d at 1506.
Having established that the relevant provisions of the
CBA/UPA governing sponsor use of print creatives are clear
and unambiguous, it easily follows that the arbitrator “ex-
ceeded the powers delegated to him by the parties.” Ethyl
Corp., 768 F.2d at 184. The CBA/UPA expressly provides that
the arbitrator “will not have the … authority to add to, sub-
tract from, or alter” the agreement. CBA § 5.8. Therefore, the
arbitrator exceeded his authority by interpreting the
CBA/UPA to require Players Association approval for print
creatives, even though the agreement’s clear and unambigu-
ous terms include only to “request, but not require” a spon-
sor donation to a player pool, UPA § 6(f)(i).
No. 15-3402 15
The present case is analogous to our decisions in Tootsie
Roll Indus., Inc. v. Local Union No. 1, 832 F.2d 81 (7th Cir.
1987) and Anheuser-Busch, Inc. v. Beer Workers Local Union
744, 280 F.3d 1133 (7th Cir. 2002).
In Tootsie Roll, in a dispute between an employer and an
employee fired for excessive absenteeism, the arbitrator is-
sued an award for the employee, applying the employer’s
more lenient “general absenteeism policy,” even though the
employee had specifically entered into a stricter “letter
agreement.” 832 F.2d at 85. The district court vacated the
award and this court affirmed. This court held that the arbi-
trator “failed to follow the clear requirements of the agree-
ment” and noted that “if the parties had intended the regu-
lar policy to apply, there would have been no reason for
spelling out the very specific … requirements contained in
the letter agreement.” Id. at 84. The Tootsie Roll court further
held that “the law of the shop cannot be relied upon to mod-
ify clear and unambiguous provisions.” 5 Id. Applying this
principle, this court concluded that the letter agreement “is
unambiguous and a deliberate modification of the general
absenteeism policy” and that the “arbitrator inappropriately
applied the law of the shop to [the letter agreement] to alter
its clear meaning and impact.” Id.In Anheuser-Busch, in a collective bargaining agreement
dispute between an employer and a union over the applica-
ble commission rate, the arbitrator issued an award for the
union, adopting a previous agreement’s one-tier commission
5The “law of the shop” refers to “the body of past practices between the
parties.” Tootsie Roll Indus., 832 F.2d at 84.
16 No. 15-3402
structure because of past practice, even though the current
agreement contained a two-tier commission structure, as
well as a zipper (or integration) clause. 280 F.3d at 1135–37.
The district court upheld the award, and this court reversed.
This court declared that “this contract required no interpre-
tation: the zipper clause was unambiguous; the arbitration
clause was unambiguous; and the commission-rates clause
was unambiguous.” Id. at 1140. The Anheuser-Busch court al-
so noted that “[c]arefully written, well-reasoned, and thor-
oughly negotiated contracts are presumptively complete”
and “[t]he conduct of the parties is absolutely irrelevant in
situations like this involving a dual zipper-clause-arbitration
clause.” Id. at 1141. Ultimately, the Anheuser-Busch court held
that “the contract was clear and unambiguous and needed
no interpretation. Accordingly, we are convinced that the
arbitrator, not the parties, modified the contract and thereby ex-
ceeded his authority.” Id. at 1142; see also id. at 1145 (Rovner, J.
concurring) (writing that “[t]he unambiguous terms of [the
current] agreement also barred the arbitrator from looking to
practices pre-dating the agreement … as a source of new or
modified contract terms”).
The principles that govern Tootsie Roll and Anheuser-
Busch also control the present case. Like in Tootsie Roll, here,
the “law of the shop cannot be relied upon to modify clear
and unambiguous provisions” of the CBA/UPA, which pro-
vide only for the US Soccer Federation to “request, but not
require” a sponsor donation to a player pool for the use of
print creatives. 832 F.2d at 84. Similar to Anheuser-Busch, in
this case, the CBA/UPA “required no interpretation: the zip-
per clause was unambiguous; the arbitration clause was un-
ambiguous; and the [substantive provision at issue] was un-
ambiguous” and therefore the arbitrator “rewrote the contract
No. 15-3402 17
and inscribed his own language upon the contract; something that
he was not authorized to do.” 280 F.3d at 1140. In both Tootsie
Roll and Anheuser-Busch, this court vacated the arbitrators’
awards because they ignored and contradicted the clear and
unambiguous terms of the underlying agreements. And
here, we vacate this award for the same reasons.
In defense of the arbitrator’s ambiguity determination,
the Players Association contends the following: the arbitra-
tor, not the court, determines whether the contract language
is ambiguous and “only a decision to ignore or act contrary
to language that the arbitrator [himself] found … to be am-
biguous and binding would allow the Court to vacate an
award.” (Appellee Br. 26 (internal citations and quotations
marks omitted).) For support, the Players Association relies
primarily on International Union of Operating Engineers, Local
139 v. J.H. Findorff & Son, Inc., 393 F.3d 742 (7th Cir. 2004)
and United Food & Commercial Workers, Local 1546 v. Illinois
Am. Water Co., 569 F.3d 750 (7th Cir. 2009).
The Players Association’s contention is overly broad.
Such a sweeping rule would undercut any meaningful judi-
cial review of arbitrator awards that “dispense [the arbitra-
tor’s] own brand industrial justice.” Amax Coal Co. v. United
Mine Workers of Am., 92 F.3d 571, 575 (7th Cir. 1996). Accord-
ing to the Players Association, so long as the arbitrator de-
clared that the agreement was ambiguous and did not con-
tradict his own statement, then his award is completely insu-
lated from judicial review. Such a result, however, runs con-
trary to this court’s well-established holding that “the arbi-
trator cannot dress his policy desires up in contract interpre-
tation clothing.” Northern Indiana Public Service Co. v. United
Steelworkers of America, 243 F.3d 345, 347 (7th Cir. 2001); see
18 No. 15-3402
also Ethyl Corp., 768 F.2d at 187 (“This is not to say that simp-
ly by making the right noises—noises of contract interpreta-
tion—an arbitrator can shield from judicial correction an
outlandish disposition of a grievance.”).
Moreover, the Players Association’s reliance on Interna-
tional Union of Operating Engineers is misplaced. In Interna-
tional Union of Operating Engineers, in a collective-bargaining
dispute between an employer and union of engineers, the
arbitrator issued an award in favor of the employer, after
concluding that under the agreement, use of skid-steer load-
ers was not exclusive to the engineers. 393 F.3d at 744. The
district court vacated the arbitrator’s award, finding that the
arbitrator “neglected the collective bargaining agreement’s
plain language.” Id. This court reversed, holding that “misin-
terpretation of contractual language, no matter how ‘clear,’
is within the arbitrator’s powers; only a decision to ignore or
supersede language conceded to be binding allows a court to
vacate the award. There is a big difference—a clear differ-
ence, a plain difference—between misunderstanding and ig-
noring contractual language.” Id. at 745.
International Union of Operating Engineers is inapplicable
to the present case because here, the arbitrator ignored, ra-
ther than misunderstood, the express terms of the
CBA/UPA. As discussed, for sponsor use of print creatives,
the CBA/UPA provides for the US Soccer Federation to “re-
quest, but not require” a sponsor donation to a player pool.
The arbitrator, however, determined that the CBA/UPA was
“silent” as to the approval process for print creatives. This is
the very definition of “ignoring contractual language.” Id. at
745. In comparison, an example of the arbitrator “misunder-
standing” contractual language would be if he had deter-
No. 15-3402 19
mined that print creatives required a mandatory sponsor
payment. We have held that, “[t]here is a big difference …
between misunderstanding and ignoring contractual lan-
guage,” id., and in the present case, the arbitrator ignored,
rather than misunderstood, the contractual language be-
cause he determined that the CBA/UPA was “silent” with
regard to the procedure for print creatives, even though the
agreement expressly provides that the US Soccer Federation
“request, but not require” a donation to a player pool. And
then he impermissibly “add[ed] to, subtract[ed] from, or al-
ter[ed]” the CBA/UPA by requiring Player Association ap-
proval for sponsor use of print creatives. CBA § 5.8.
Nor does United Food & Commercial Workers support the
Players Association’s contention. In United Food & Commer-
cial Workers, in an employment contract dispute between an
employer and union over a terminated employee, the arbi-
trator issued an award in favor of the union, after conclud-
ing that the contract, called the last chance agreement
(“LCA”), did not provide for the employee’s termination in
the circumstance of a good-faith challenge to the LCA itself.
569 F.3d at 753. The district court and this court confirmed
the arbitrator’s award. This court held that “[t]he arbitrator
did not disregard the contractual language … [i]nstead, the
arbitrator confronted a situation that was not expressly con-
templated by the parties, interpreted the agreement, and
reached a conclusion.” Id. at 755. This court further held that
“[w]hat matters is not whether this court believes the LCA
language to be ambiguous, but whether the arbitrator found it
ambiguous … only a decision to ignore or supersede lan-
guage conceded to be binding allows a court to vacate the
award.” Id. at 755–56 (citing Int'l Union of Operating Eng'rs,
393 F.3d at 745).
20 No. 15-3402
United Food & Commercial Workers is also inapplicable to
the instant case. There, the arbitrator’s ambiguity determina-
tion rested on the fact that the situation “was not expressly
contemplated by the parties.” 569 F.3d at 755. In contrast,
here, as the arbitrator acknowledged, “the UPA clearly con-
templates that [the US Soccer Federation’s] sponsors might
make use of print creatives.” (R. 41–7 21.) Indeed, the same
underlying facts of the present case distinguish it from both
International Union of Operating Engineers and United Food &
Commercial Worker—here, parties clearly contemplated spon-
sor use of print creatives and expressly included only an un-
ambiguous “request” term in the CBA/UPA, which the arbi-
trator ignored (by finding the agreement silent and ambigu-
ous) and contradicted (by requiring Players Association ap-
proval), thereby exceeding his authority— Accordingly, nei-
ther case supports the Players Association’s overly broad
contention.
Next, the Players Association argues that “an arbitrator
may find ambiguity created by the silence of the agreement
on the particular question at issue,” relying mainly on North-
ern Indiana Public Serv., 243 F.3d at 347. (Appellee Br. 27 (in-
ternal quotation marks omitted).) Northern Indiana Public
Serv. addressed a collective bargaining dispute between an
employer and union over a PRP chart that tied pre-tax oper-
ating income to bonus percentage and depicted a range from
346 million dollars (corresponding to 0.0 percent bonus) up
to 382 million dollars (corresponding to 6.0 percent bonus).
243 F.3d at 346. That year, the pre-tax operating income was
391 million dollars, causing the parties to submit the follow-
ing issue to arbitration: “if the … operating income went off
the chart would the bonuses go off the chart as well?” Id. The
arbitrator issued an award for the union, after finding that
No. 15-3402 21
the agreement “expressly provided a floor for bonuses, but
was silent as to a cap” and examining extrinsic evidence
“[t]o clear up any ambiguity created by the silence.” Id. at
347. The district court and this court confirmed the award,
holding that “the arbitrator engaged in contract interpreta-
tion. And, although the arbitrator was not empowered un-
der the CBA to add terms to the PRP, arbitrators are em-
powered to fill gaps left in contracts.” Id. at 348.
The Players Association’s argument is without merit, and
Northern Indiana Public Service does not apply here. In North-
ern Indiana Public Service, the PRP chart was “silent” as to the
bonus associated with 391 million dollars of operating in-
come because it was “literally … off the chart,” id. at 348,
thereby resulting in an ambiguity or gap for the arbitrator to
fill via contract interpretation. In contrast, as discussed, the
CBA/UPA was not silent with regard for sponsor use of print
creatives; it expressly provided that the US Soccer Federa-
tion “request, but not require” a sponsor donation to a play-
er pool. Therefore, there was no ambiguity or gap for the ar-
bitrator to fill, and the Players Association’s argument fails.
The Players Association’s remaining arguments are
merely additional attempts to characterize the arbitrator’s
award as falling within his authority under the CBA/UPA.
But as we have already established, the arbitrator’s award
exceeded his authority, pursuant to CBA § 5.8, because he
ignored and contradicted the clear and unambiguous terms
of the agreement.
In conclusion, we recognize that a goal of arbitration is to
provide the parties with “swift, inexpensive and final deci-
sions,” but “this does not vitiate judicial review of an arbitra-
tor’s decision.” Anheuser-Busch, 280 F.3d at 1144. Here, just
22 No. 15-3402
as the parties agreed to arbitration, they also agreed “to limit
the arbitrator’s authority and preserve[] their right to chal-
lenge decisions when the arbitrator had reached out and
rendered a decision that stray[ed] beyond his delegated au-
thority and is barred by the negotiated contract.” Id.III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is REVERSED. This case is REMANDED with instruc-
tions to VACATE the award of the arbitrator and enter
judgment in favor of the US Soccer Federation.