Q&A with Penn Law’s Stephen Burbank, the system arbitrator of the NFL

Why didn’t you think President Nixon was going to make it after proofreading Burger’s opinion? Was it the content of the tapes?

Yes, as they came out, but he’d been fighting so hard to keep them from coming out, and we already had enough information in the public domain about the activities of people who worked for him that it was pretty clear to me that he was not going to last.

Were you ever concerned that Nixon would not abide by the Supreme Court ruling?

Yes, that was a real concern. Those who weren’t alive then or not adults then and not living it probably can’t understand that there was a serious concern. It’s probably more easily understood today, the concern that the president might not obey the court.

What would happen in that situation?

I don’t even like to speculate. I believe that as vigorous as the president’s assaults on American institutions have been, they’re strong enough to withstand him. Indeed, I told my first-year class the day after the election—you can imagine, most law students were very upset by, and some of them in shock, really, about the election—I told them the story about my first day at work and suggested that the country had been strong enough to survive Nixon; it’s strong enough to survive Trump.

You were hired as Penn’s general counsel when you were 27. What was it like being in such a prominent position when you were so young?

I had two clerkships following law school [at Harvard], and I was still unsure about what I wanted to do. One of the things that I thought I might want to do is teach, but I wasn’t at all committed to that. When I was clerking for Chief Justice Burger, I interviewed with some people from the University of Pennsylvania Law School who learned that I was interested in educational administration, as well as teaching and as well as practice. It just so happened that the University was looking for its first in-house lawyer, and the president at that time was one of my mentors. Martin Meyerson had a belief in the power of intelligence that led him to do silly things like hire a 27-year-old to be general counsel. I make it a habit not to turn down positions on the grounds of my own incompetence. What it was like was definitely flying by the seat of my pants.

In general, what kinds of things were you dealing with as general counsel in the mid-to-late 1970s?

Well, the University is the second-largest employer in the City of Philadelphia. It has virtually all of the legal problems of a large corporation, except it doesn’t issue stock, although the University was very much involved in some bonds. Some of it was a very diverse practice and the University of Pennsylvania is a particularly complex institution. I remember getting a call from the then-president of the University of Chicago, Hanna Gray, who asked me if I’d come out and talk to her about becoming general counsel at the University of Chicago. I think she was taken aback when I immediately answered ‘no.’ And I said, ‘The reason is that the University of Pennsylvania is a much more interesting university to be general counsel of.’ It’s all the graduate schools, at that time two acute-care hospitals because we not only had [the Hospital of the University of Pennsylvania], Graduate was spun off during the time I was general counsel. These graduate schools and a large, urban university presented a fascinating set of problems.

How did you get into teaching?

Actually, the people who recruited me from the Law School said, ‘Look, this is a marvelous opportunity to do all three things that you wanted to do,’ namely practice, do some education administration, and teach. I guess it was a reflection of my age that I naively thought that I could do all three of those things at the same time. I did, but I was much younger and 16-hour days didn’t take the toll that they would take on me today. But teaching was always a part of the package. 

How did you become interested in rulemaking and procedure?

I was interested in the process by which the rules are made, and I have come to understand that I’m interested in institutions, more generally. I was also interested in power. Procedure traditionally has been described as adjective law, which is intended to suggest that it’s less important than the substantive law. It became apparent to me fairly quickly that this was a con job by people who wanted to retain control of the power to make these rules because they understood that if you have control of procedure, you can frustrate or accelerate the enforcement of the substantive law. [Former U.S. Rep.] John Dingell, when he was in Congress, once said, ‘You write the substance and I’ll write the procedure, and I’ll screw you every time.’ So I was very interested in the power that could be wielded through control of lawmaking responsibility for procedure.

How did you get into mediation and arbitration?

As you know, the problem of asbestos didn’t come to light, at least prominently, until the 1970s—although plenty of people knew about the dangers of asbestos before that, but a lot of them hid those dangers. Eventually, litigation brought out that asbestos manufacturers had known about the harmful qualities of asbestos for decades and had hidden them, and you had thousands and tens of thousands of cases, and what do you do with them? In the mid-’80s, some bright people had the idea that maybe the process of dealing with this by litigation was not the best way of doing it, or that it could be done more efficiently, and something called the Asbestos Claims Facility, or the Wellington Facility after an academic at Yale named Harry Wellington, was created. They put together rosters of people whom they recruited to help deal with disputes that arose, in this case, disputes between and among insurance companies, so I did a lot of that. This was mediation mostly, a little bit of arbitration in complex, high-stakes insurance disputes. People ask me how did I get involved as the system arbitrator for National Football League; I think that’s the reason. They were looking for a successor to the person who then held the position, and somebody who’d been before me in one of these high-stakes, complicated insurance disputes probably suggested my name. The NFL collective bargaining agreement is a very complicated agreement, and you have to be able to navigate that agreement if you’re going to be successful in serving as an arbitrator. Of course, an arbitrator plays a different role than a mediator. I actually decide the cases rather than try to help the parties reach a settlement.

Am I correct that you were appointed by a court as special master of the NFL in 2002, and you became system arbitrator in 2011?

Yes, the position is the same. What that reflects is that in 2011, the union, the National Football League Players Association, and the NFL reached a new collective bargaining agreement, and part of that collective bargaining agreement involved getting out from under the federal court because the initial collective bargaining agreement coexisted with the stipulation and settlement agreement that concluded some anti-trust litigation that was brought in the early 1990s, and the federal judge who presided over that anti-trust litigation and the resolution of it kept jurisdiction. So in that posture, the parties jointly recommended me to the court and I was appointed by the court. When the court was removed from the picture in 2011, they kept most of the dispute resolution mechanisms. They changed my title since I would no longer be formally appointed by the court, and they provided a substitute body to review decisions of mine that somebody didn’t like and wanted to take an appeal from, so there’s an appellate panel. So if somebody doesn’t like one of my decisions, they can take an appeal to the appellate panel. Formerly, they would have gone to the court.

What do you enjoy about the work?

It’s funny because my students think this is the sexiest job on the face of the Earth. On a few occasions, I’ve gotten the parties’ agreement to let me have some students come in and watch, and I want them to see it because I want them to understand that it’s mostly just hard contract interpretation. Most of the disputes that I’ve resolved have been questions really turning on what does the agreement mean, not so much what the facts were. One exception to that was, my favorite to date, the question whether [former New Orleans Saints tight end] Jimmy Graham was a wide receiver or a tight end. I had a two-day hearing in New Orleans and got tutorials from the experts for both sides with lots of film demonstrating the evolution of the position of the tight end. It was absolutely fascinating. It was a lawyer’s case really, is he a tight end or a wide receiver? But it had lots of evidence and quite a few interesting questions of interpretation. So that was fun. And Jimmy Graham was sitting right there. I’ve had some really bizarre ones. I had [former New York Giants wide receiver] Plaxico Buress [who shot himself in the leg]. I got a lot of hate mail from Giants fans who couldn’t understand why I said that his signing bonus couldn’t be reclaimed by the Giants. My first case was Terrell Owens. I never actually issued my decision in that case because they settled it. But I had the Drew Brees case, and some very complicated cases involving lots and lots of money.

Did you handle the Deflategate case pitting the NFL against Tom Brady?

No. I can’t remember whether one side tried to get it in front of me, but I had previously held that I had no jurisdiction in a case involving discipline, that that belonged to the commissioner, it didn’t belong to me. The system arbitrator, as was true of the special master, has exclusive jurisdiction over certain types of disputes, and no jurisdiction over others. Particularly given what I do for a living, which includes teaching students about the jurisdiction of the federal courts, which is limited, I try to pay very close attention to limitations on my jurisdiction.

The NFL is the most popular sport in America, and fans are very passionate about their favorite teams and its players. Do you feel the weight of your decisions and their impact on sports and culture, or is it just your job?

I try to keep it as, ‘This is my job,’ resolving these cases. When I was called [for the special master/system arbitrator position], it was out of the blue. I mean, this is not a job you apply for. When I was called by the lawyers for both sides asking if I would consent to be interviewed for the position, my first thought was this is another situation where you shouldn’t let your own lack of competence cause you to decline. And then I talked to my wife and said, ‘You know, they’re going to ask me if I’m a football fan, and I’m going to tell them the honest answer, which is, “Not really.” It’s probably a good thing that I’m not a passionate football fan, although frankly it’s not clear which way that would lead one to come out if one were going to be influenced by the fact that you’re a football fan. But I’m not a big football fan, so that doesn’t affect me. But I’m also not naïve.