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March 2025

Welcome

Welcome to readers of Making the Connection!

In this issue, you will find:

In Focus: Due Process Protocols in Sports-Related Arbitration
Question of the Month, about different approaches to negotiations
Case on Point, discussing requirements for enforceable arbitration clauses
At the Podium, listing my speaking engagements and public appearances
Client Corner, spotlighting client events and announcements

In Focus

Due Process Protocols in Sports-Related Arbitration

Long time readers of Making the Connection may recall a 2016 article discussing "Deflategate" in which I criticised the one-sided nature of the arbitration procedures agreed to by the NFL and its players association in their collective bargaining agreement. As I explained, "The CBA specifically authorized the Commissioner to investigate rule violations, impose sanctions, and hear appeals challenging such sanctions." Although the Court of Appeals upheld this scheme, I suggested "Especially given the lack of judicial review of arbitral decisions, the parties should incorporate safeguards to ensure the neutrality of the arbitrator and the fairness of the process."

The Supreme Court's decision invalidating NCAA restrictions on college athletes' commercial exploitation of their own name, image and likeness has expanded the scope of potential sports arbitrations to encompass disputes arising from those licensing arrangements. The American Arbitration Association has recently adopted due process protocols for such arbitrations, including ensuring that college athletes can:

receive education about the process;
participate in selecting a neutral arbitrator;
have access to relevant information;
are guaranteed a convenient location for in-person hearings; and
do not have more than a nominal filing fee to take advantage of arbitration.

The protocols also call for the use of mediation before and during the arbitration process to achieve a mutually acceptable outcome.

Question of the Month

Q: What is the difference between distributive and integrative negotiations?

A: Distributive negotiations are more transactional, with each party focusing solely on advancing its own interests. Integrative negotiations are more relationship oriented, with each party looking for solutions that serve both parties' interests. Distributive negotiations are common where the dispute is a zero sum game (meaning one party's gain is the other party's loss) and where there is only one issue to negotiate, typically the payment of money by one side to the other. Integrative negotiations are more prevalent where the parties have an ongoing relationship and the situation is more complex, with a number of issues presented, allowing for more opportunities for trade-offs and creative problem-solving.

Case On Point

Cedeno v. Sasson

(U.S. Ct. of App. for the 2d Cir. 2024)

ERISA is a federal statute that imposes fiduciary obligations on various parties, including trustees of retirement plans. It provides for a range of remedies, including plan-wide relief for the benefit of similarly situated plan participants.

Cedeno filed a class action against Sasson, the trustee of his retirement plan, and other defendants, asserting violation of fiduciary duties under ERISA. His complaint sought both individual and plan-wide relief. Defendants moved to compel arbitration based on the arbitration clause contained in the plan documents. The district court denied the motion, and found the clause unenforceable because it only permitted plan participants to assert claims for individual relief and thus "amount to prospective waivers of participants’ substantive statutory rights and remedies under ERISA."

Defendants appealed. The Court of Appeals affirmed, observing that the purpose of the Federal Arbitration Act was to ensure that agreements specifying arbitration as the procedural mechanism for resolving claims were enforced, not to permit the denial or abridgment of statutory rights and remedies.

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At the Podium

This is a listing of speaking engagements, workshops, events and other public appearances. To book me as a speaker or facilitator at your next company, client or association function, contact me at lisa@lisapom.com.

I look forward to teaching Employment Law this spring in the Masters of Legal Studies program at Texas A&M University Law School.

Client Corner

Client Corner features client announcements and events of potential interest to readers.

Elizabeth Sanchez Vaughan, Creative Principal of In-Site Interior Design, recently spoke to the Long Island Builders Institute (LIBI) Women's Committee about Trends in Commercial Design.
On March 21, 2025, from 12 to 2pm, Moxxie Network will host a networking luncheon at Hotel Indigo in Riverhead with a speaker on Understanding Artificial Intelligence. Click here for information and registration.

80 Orville Drive, Suite 100 | Bohemia, NY 11716

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