Two recent decisions, Attia v. Audionamix1 and National Football League Management Council v. Tom Brady,2 clarify that it’s a good idea for an arbitrator to think twice before precluding evidence as a way to control party misconduct. Read together they stand for the proposition that: The need to sanction party misbehavior will be trumped by any prejudice to the wrongdoer resulting from an order of preclusion. And this is true even though many institutions that administer arbitration have rules allowing arbitral sanctioning and the exclusion of evidence. Keep in mind that if an award is vacated under the Federal Arbitration Act (FAA) §10(a)(3) the arbitrator is by definition “guilty of misconduct.”
This article argues there should be room for a rule allowing an arbitrator who deals with misconduct to consider the impact of disruptive behavior as grounds for excluding evidence if the behavior prejudices the rights of other parties to a fundamentally fair hearing.
Arbitral Sanctioning
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