Weinberg v. Silber ( 2003 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    __________________________
    No. 02-10381
    __________________________
    STEVE WEINBERG, STEVE WEINBERG & ASSOCIATES, INC.
    Plaintiffs-Counter Defendants-Appellants,
    versus
    HOWARD F. SILBER, individually and doing business as
    PACIFIC SPORTS & ENTERTAINMENT
    Defendant-Counter Claimant-Appellee,
    PACIFIC SPORTS AND ENTERTAINMEMT, INC.
    Defendant-Appellee.
    ___________________________________________________
    Appeal from the United States District Court
    for the Northern District of Texas
    (No. 99-CV-1432)
    ___________________________________________________
    January 6, 2003
    Before JOLLY, DUHÉ, and WIENER, Circuit Judges.
    PER CURIAM*:
    Plaintiff-Appellant    Steve   Weinberg   appeals   the   district
    court’s amended final judgment, confirming the arbitration award,
    on several alternative grounds. Weinberg principally argues that
    the district court’s amended judgment should be set aside because
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    the   terms   of    the   judgment    are     contradictory.    Weinberg    also
    challenges    the   underlying      arbitration     agreement   and   award   on
    several bases. For the following reasons, the judgment of the
    district court is AFFIRMED.
    I.
    FACTS AND PROCEEDINGS
    This appeal arises from the “acrimonious” termination of a
    joint venture agreement between two professional sports agents —
    Weinberg and Defendant-Appellee Howard Silber. In June of 1998,
    Weinberg and Silber entered into an oral agreement to represent
    professional football players. The terms of their agreement were
    never   memorialized       in   a   writing,     but   Weinberg    and   Silber
    purportedly agreed to share equally in all expenses incurred in
    recruiting clients and in commissions of up to 3% of their clients’
    compensation.
    The joint venture eventually dissolved, and Weinberg and
    Silber each filed suit to resolve several disputed issues. In
    December   1999     the   parties    agreed    to   “consolidate   before     [an
    arbitrator] all claims and disputes of whatever nature made by the
    parties against each other” and to stay all pending litigation.
    The arbitration agreement specifically provided that the arbitrator
    “will hear all complaints and defenses relating to any matters in
    controversy between Weinberg and Silber” including “[t]he rights
    liabilities, and indebtedness of any of the parties with respect
    to” some fifty-one named athletes, including professional football
    2
    player Stephen Davis. An arbitration hearing was conducted on March
    17, 2000.
    In October 2000, the arbitrator issued an award, ordering “a
    split on fees paid only with respect to one of their joint-
    venture’s      clients,   Washington        Redskins    running     back    Stephen
    Davis.”1       The    arbitrator    specifically       noted   that   “it    is   an
    undisputed     fact    that   Mr.   Weinberg    acted    as    an   agent   of    the
    Weinberg/Silber joint-venture and on behalf of Stephen Davis in
    negotiations with the Washington Redskins prior to and after June
    1, 1999.”2      Accordingly, the arbitrator determined that Weinberg
    and Silber should split fees earned both on Davis’s completed 1999
    contract and on a more recent contract, which was signed in
    September 2000 (six months after the arbitration hearing). The 2000
    contract encompasses the 2000-08 football seasons and is valued at
    approximately $135 million; the 3% agent fee amounts to over $4
    million.
    Silber filed a motion to confirm the arbitration award in the
    Northern District of Texas; Weinberg filed a cross-motion to vacate
    the award. The district court denied the motion to confirm without
    prejudice; denied the motion to vacate with prejudice; and remanded
    the case to the arbitrator for the limited purpose of making three
    specific corrections and clarifications to the award. After the
    1
    
    2 R. 370
    .
    2
    
    Id.
    3
    arbitrator amended the award, the district court confirmed it as
    amended and entered final judgment in January 2002. After granting
    Silber’s motion to amend that judgment, the district court entered
    an amended final judgment on February 28, 2002; the only change was
    in the post-judgment interest rate.
    Weinberg timely appeals the amended final judgment on at least
    six grounds. He argues that reversal of the district court’s
    amended judgment is warranted because (1) the amended judgment
    confirming the amended arbitration award is contradictory and
    inconsistent; (2) the arbitrator based his award solely on post-
    submission events; (3) the underlying agreement to arbitrate is
    void because it does not contain procedural rules and guidelines;
    (4) the award is not within the scope of the disputes submitted;
    (5) the arbitrator’s seven-month delay in ruling was impermissible;
    and (6) the lack of procedural rules constitutes a “jurisdictional
    defect.”
    II.
    ANALYSIS
    We review a district court’s confirmation of an arbitration
    award    de   novo.3   Judicial    review    of   arbitration   awards   is
    “extraordinarily narrow,” and we will defer to the arbitrator’s
    3
    Executone Info. Sys., Inc. v. Davis, 
    26 F.3d 1314
    , 1320 (5th
    Cir. 1994).
    4
    decision whenever possible.4 This de novo standard “is intended to
    reinforce the strong deference due an arbitrative tribunal.”5
    The Federal Arbitration Act prescribes the limited bases for
    vacatur of an arbitration award. Under the act, a court may vacate
    or modify an arbitration award only when (1) the award was procured
    by   corruption,   fraud   or   undue       means;    (2)   there   was   evident
    partiality or corruption in the arbitrators; (3) the arbitrator was
    guilty of misconduct in refusing to postpone the hearing, in
    refusing to     hear   evidence,   or       other    misbehavior;   or    (4)   the
    arbitrator exceeded his powers, or so imperfectly executed them
    that a mutual, final, and definite award upon the subject matter
    submitted was not made.6
    We easily dispense with Weinberg’s arguments, as none falls
    within the limited grounds for vacatur. First, Weinberg asserts
    that the amended final judgment is “self-contradictory as to a
    material term and incapable of compliance.”7 Weinberg reasons that
    the amended final judgment is invalid because it requires him to
    pay one-half of the 3% commission on Davis’s future earnings (his
    4
    Antwine v. Prudential Bache Sec., Inc. 
    899 F.2d 410
    , 413
    (5th Cir. 1990).
    5
    McIlroy v. PaineWebber, Inc., 
    989 F.2d 817
    , 820 (5th Cir.
    1993); see also Brook v. Peak Int’l, Ltd., 
    294 F.3d 668
    , 672 (5th
    Cir. 2002) (explaining that “[i]n light of the strong federal
    policy favoring arbitration, [j]udicial review of an arbitration
    award is extraordinarily narrow”) (internal quotations omitted).
    6
    
    9 U.S.C. § 10
    (a)(1)-(4).
    7
    Appellant’s Br. at 14.
    5
    salary for the 2001-08 seasons) immediately, i.e., within ten days
    of the date the final judgment is signed.8        According to Weinberg,
    “[t]he judgment purports to require [him] to pay in ten days from
    funds he does not have, will not have for many years, and may never
    have.”9
    This     argument   is   specious.   The   amended   final   judgment
    expressly incorporates the express terms and conditions of the
    amended arbitration award, which states that “with respect to and
    exclusively for Mr. Davis’ 1999 contract, Mr. Weinberg is ordered
    to pay Mr. Silber a sum of $14,010.00 . . . no later than ten (10)
    days from the date of this arbitration award.”10 The amended award
    further provides:
    Mr. Weinberg is therefore ordered to pay 1.5% of any
    amounts currently paid to Mr. Davis under his 2000
    through 2008 contract, and such payments are to be made
    no later than ten (10) days from the date of this
    Arbitration Award. Thereafter all payments from Mr.
    Weinberg to Mr. Silber are to be paid no later than ten
    (10) days from the date Mr. Davis is paid pursuant to the
    subject 2000 through 2008 contract.11
    8
    Weinberg’s argument rests entirely on the district court’s
    unqualified use of the word “sum” in the amended final judgment. In
    the judgment, Weinberg is ordered to pay Silber “the sum specified
    in the Clarified Arbitration Award . . . [t]hat sum is to include
    . . . the amount (1.5% of earnings) under the NFL contracts for the
    2001 t0 2008 seasons . . . [t]he sum is to be paid no later than
    ten (10) days from the date this Judgment is signed.”       Amended
    Final Judgment, 7 R. at 861-62.
    9
    Id. (emphasis omitted).
    10
    6 R. at 612.
    11
    Id. at 614 (emphasis added).
    6
    The   amended    arbitration   award   thus   clearly   and    unambiguously
    specifies when payments to Silber are due: Amounts earned on the
    1999 contract and any amounts already paid to Weinberg under the
    2000-08 contracts are due within ten days of the date of the
    arbitration award; all other payments are to be paid within ten
    days of the date that Stephen Davis is paid.
    Given the precise terms of the amended arbitration award, the
    amended final judgment, which is “to conform with the terms and
    conditions” of the amended award, is neither “self-contradictory”
    nor invalid. Although the term “sum” as used in the final judgment
    may be slightly ambiguous, the district court expressly adopted the
    terms and conditions of the arbitration award, which dictates
    beyond   cavil    Weinberg’s    schedule      of   payments.    Accordingly,
    Weinberg’s argument that the final judgment is “incapable of
    compliance” is meritless.
    At oral argument, Weinberg advanced yet another, equally
    unavailing, theory of internal “inconsistency” in the arbitration
    award. He maintains that paragraph five of the award, in which the
    arbitrator broadly orders “a split on fees paid only with respect
    to . . . Stephen Davis” conflicts with paragraph nine of the award,
    which specifically orders all prospective payments from Weinberg to
    Silber to be paid within ten (10) days from the date Stephen Davis
    is paid. According to Weinberg, the award is unclear as to whether
    Weinberg is to pay Silber one-half of “fees paid” as they are
    received by Weinberg, or one-half of 3% of Davis’s salary as it is
    7
    paid to him, regardless of whether (or when) Weinberg receives the
    3% commission from Davis.
    After careful review of the record, the original and amended
    arbitration awards and judgments, and the parties’ briefs, we are
    satisfied that these two paragraphs are readily reconcilable and do
    not warrant modification of the award or remand to the arbitrator.
    Paragraph five sets forth the arbitrator’s award in general terms
    — Weinberg and Silber are to split agent commissions, i.e., “fees
    paid,” with respect to one client, Stephen Davis. Paragraph nine
    outlines, in detail, the payment arrangement: Weinberg is to pay
    Silber “1.5% of each dollar earned by Stephen Davis” no later than
    ten days from the date that Davis is paid. We acknowledge that
    under this payment plan, any risk of Davis’s default is to be
    shouldered exclusively by Weinberg, whose obligation to Silber is
    triggered by the Redskins payment to Davis, regardless of whether
    Davis in turn pays Weinberg. We nevertheless decline to reexamine
    either the arbitrator’s motive in crafting the payment terms or the
    merits of the underlying award. We conclude that the two provisions
    are compatible and that remand is not warranted on the basis of
    ambiguity or inconsistency.
    We briefly address — and dispose of — Weinberg’s remaining
    arguments, which are equally meritless and border on frivolousness.
    First, Weinberg contends that the arbitrator exceeded his authority
    by considering, and basing his award on, Stephen Davis’s 2000
    contract with the Washington Redskins. Weinberg argues that because
    8
    the arbitration hearing was held on March 17, 2000, and the Davis
    contract was not signed until September 2, 2000, the contract was
    beyond the temporal scope of the parties’ agreement to arbitrate
    and was improperly factored into the final award.
    This argument fails for several reasons. First, contrary to
    Weinberg’s assertion, the Agreement to Arbitrate Disputes vests the
    arbitrator   with   broad     authority    to   determine   “the   rights,
    liabilities, obligations and indebtedness of any of the parties to
    each other with respect to . . . Stephen Davis.”12        Given this broad
    mandate,   the   arbitrator    did   not   exceed   his   jurisdiction   in
    determining the “obligations and indebtedness” of the parties with
    respect to Stephen Davis’s contract.13
    Second, to the extent that Weinberg’s argument is a thinly-
    veiled challenge to the arbitrator’s resolution of the disputed
    12
    Weinberg’s heavy reliance on Gulf Coast Indus. Workers Union
    v. Exxon Co., U.S.A., 
    991 F.2d 244
     (5th Cir. 1993) is misplaced. In
    Gulf Coast, the court determined that an arbitrator’s reliance on
    the plaintiff-employee’s post-discharge rehabilitative efforts was
    improper because the only question before the arbitrator was
    whether the defendant had “just cause” to terminate the plaintiff
    on a specific date. In this case, the arbitrator had broad
    authority to resolve the “rights, liabilities, and indebtedness” of
    the parties with respect to some fifty-one clients, including
    Stephen Davis.
    13
    See Valentine Sugars, Inc. v. Donau Corp., 
    981 F.2d 210
    , 213
    (5th Cir. 1993) (explaining that even though the “broad notice of
    arbitration . . . seems to give the arbitrator jurisdiction over
    anything under the sun . . . [t]he parties agreed to arbitration
    . . . and must accept the loose procedural requirements along with
    the benefits which arbitration provides”).
    9
    issues, it also fails.14   Weinberg has repeatedly demonstrated that
    he is quite dissatisfied with the result in the arbitration. He has
    not, however, established that any one of his complaints falls
    within the narrow grounds for vacatur of an arbitration award.   We,
    like the district court, will not second-guess the arbitrator’s
    resolution of this dispute.15    The arbitrator was not required to
    give reasons or an explanation in support of his award,16 and absent
    evidence of clear error, reliance on the Davis contract (which was
    expressly included in the parties’ broad agreement to arbitrate)
    does not warrant vacatur of the arbitrator’s award.
    Weinberg’s remaining arguments, that the award was not timely,
    that the agreement to arbitrate was “void for vagueness,” and that
    the lack of formal procedures and rules was a “jurisdictional
    defect” are similarly feckless. The arbitration agreement between
    Weinberg and Silber prescribed no time limit for decision, and
    Weinberg offers no case law to support his bald, sweeping assertion
    14
    Weinberg questions “how is it equitable for one to pay $2
    million to the other for doing nothing?” and contends that “Davis
    did not know Silber and would not have consented to his
    representation,   because  Silber   represented  one   of  Davis’
    competitors.” Appellant’s Br. at 18.
    15
    See Memorandum Op. & Order, 
    6 R. 571
     (“The Court will not
    engage in Monday morning quarter-backing with respect to the
    arbitrator’s interpretation of the numerous documents and
    correspondence upon which Weinberg and Silber based their
    relationship, or his conclusion as to exactly when that extremely
    contentious relationship finally and legally disintegrated.”).
    16
    Antwine, 
    899 F.2d at 412
     (“It has long been settled that
    arbitrators are not required to disclose or explain the reasons
    underlying an award.”).
    10
    that a seven-month delay is per se unreasonable.17 This “timeliness”
    argument reflects nothing more than Weinberg’s deep dissatisfaction
    with what he considers to be the arbitrary and summary disposition
    of this case; it is not grounded in law or fact.18
    Finally, we note that Weinberg’s residual challenges to the
    underlying arbitration agreement are inapt. He cites no case law —
    and we have found none — in support of his theory that an agreement
    to arbitrate must include procedural “ground rules” to govern the
    proceedings.19     On the contrary, “[a]s a speedy and informal
    17
    Weinberg improperly relies on Jones v. St.Louis-San
    Francisco Ry. Co., 
    728 F.2d 257
     (6th Cir. 1984). In Jones, the
    arbitration agreement at issue included an express fifteen-day time
    limit, but the award was issued some fourteen months after the
    hearing date. Moreover, unlike Weinberg, “the appellant made
    numerous attempts to have a decision rendered in a timely manner.”
    
    Id. at 266
    . The court further noted that “some courts have held
    that the authority of the arbitrator does not expire until after a
    reasonable time beyond the original time limitation provided in the
    agreement . . . [t]his rule of reasonableness developed to prohibit
    parties from waiting until an award is made and objecting to it on
    the basis of its untimeliness only after they receive an
    unfavorable decision.” 
    Id.
         In this case, the record on appeal
    reflects that Weinberg did not object to the timeliness of the
    arbitrator’s decision — or any other alleged procedural defects —
    until he received an (unfavorable) result.
    18
    Weinberg irrelevantly speculates that during the seven-month
    interval between the arbitration hearing and the award the
    arbitrator “was not reviewing the documents, considering the
    testimony, recalling the arguments” but was “wait[ing] for some
    advantageous and unpredictable event to solve his puzzle.”
    Appellant’s Br. at 19-20; see also Appellant’s Reply Br. at 13
    (“The length of delay perhaps would not be problematic standing
    alone, had the arbitrator been diligently fulfilling his task . .
    . [b]ut that was not what the arbitrator was doing.”) (emphasis
    omitted).
    19
    Weinberg’s theory in this regard is two-pronged. First, he
    asserts     that underlying arbitration agreement is “void for
    11
    alternative to litigation, arbitration resolves disputes without
    confinement to many of the procedural and evidentiary strictures
    that protect the integrity of formal trials.”20            We have previously
    explained    that    “[p]arties    to    voluntary    arbitration      may     not
    superimpose rigorous procedural limitations on the very process
    designed to avoid such limitations.”21
    Furthermore, in this case any procedural objections were
    likely waived, as Weinberg participated fully in the arbitration
    proceedings    yet   never   complained      about   any   lack   of   rules    or
    procedures (or any other defect) until he received an unfavorable
    result. “It is well settled that a party may not sit idle through
    an arbitration procedure and then collaterally attack the procedure
    on grounds not raised before the arbitrator[] when the result turns
    out to be adverse.”22
    III.
    Conclusion
    vagueness” because “there was no contract telling the arbitrator
    what the ‘ground rules’ were.” Appellant’s Br. at 26. Second, he
    argues that this purported lack of procedural rules “amounts to an
    absence of jurisdiction on the part of the arbitrator.” Id. at 27.
    20
    Forsythe Int’l, S.A. v. Gibbs Oil Co., 
    915 F.2d 1017
    , 1022
    (5th Cir. 1990).
    21
    
    Id.
     (emphasis added).
    22
    Brook, 294 F.3d at 674 (quoting Marino v. Writers Guild of
    Am., East, Inc., 
    992 F.2d 1480
    , 1484 (9th Cir. 1993)).
    12
    For the foregoing reasons, the judgment of the district court
    is AFFIRMED.
    13