Blog #22 (Why it is so important to obtain Full Arbitrator Disclosures; Fergie Jenkins)

By Richard J. Decker on March 21, 2012 7:00 AM

When a dispute is in arbitration, and the arbitrator is designated, he or she is required to disclose to both sides all previous interaction he or she has or had with the clients and attorneys involved in the dispute so that the arbitrator can be removed if any conflicts exist. Most arbitrators understand and do this. However, some don't, and if they don't, it can become a real problem for the litigants. Why is that?

First, because the losing party may then have grounds to set aside the arbitration award based on an undisclosed conflict. Moreover, under the recent case of La Serena Properties v. Weisbach et. al. 2010 DJDAR 1101 (2010), the prevailing party, who no longer is the beneficiary of the arbitration award, likely will have no remedy against the arbitrator who failed to disclose or the tribunal with whom the arbitrator is affiliated. That is because the holding of that case gives the arbitrator and the tribunal with whom he or she is affiliated absolute immunity for the failure to disclose.

Conversely, and ironically, if the losing party at the arbitration is successful in setting aside the award due to incomplete arbitrator disclosure, the client may have a claim against his or her attorney who prevailed at the arbitration for failing to confirm that the arbitrator fully disclosed as required. The La Serena holding, in my view, seems to permit incomplete disclosure while potentially imposing strict liability on the participating attorneys for the arbitrator's failure to disclose; a very unjust result. So, when selecting an arbitrator, read the disclosures carefully, and take extra care to make sure the arbitrator has disclosed all of his or her involvement with you, your client and your firm.

Now for the Opening Day memory...

I specifically remember talking with Fergie Jenkins about his Opening Day memories by telephone one morning while I was in a hotel in Las Vegas waiting for my wife to get ready (she actually doesn't take that long). It was a thrill talking to him despite that I was a fan of the 1969 Mets and Fergie was the best pitcher on the arch rival Cubs. Although he was elected to the Hall of Fame in 1991, the Cubs retired his number, and he is a member of the Texas Rangers Hall of Fame, as well. I believe he is somewhat unheralded for how amazing a pitcher he really was.

From 1967 to 1972, he won at least 20 games a year. He was traded to the Rangers in 1974 after an off year in 1973 (he only won 14 games) and promptly won 25 games, the highest total of his career. Astoundingly, from 1967 to 1971, in addition to winning 20 or more games every year, he struck out more than 200 batters, pitched more than 300 innings and pitched 87 complete games with 16 shutouts. In 1971, he won the Cy Young award after winning 24 with 30 complete games in 39 starts. Those 30 complete games included five 1-0 losses. He also hit 6 home runs that year.

Fergie describes the 1971 Opening Day below, but what he doesn't say is that he pitched a 10-inning complete game. Fergie's 284 win Hall of Fame career spanned 19 years. In addition to pitching for the Cubs with whom he concluded his career, he pitched for the Phillies, Rangers and Red Sox. Fergie was born in Canada, and remains to date Canada's best known baseball player.

Here are his Opening Day memories.

Jenkins.JPG"My first Opening Day start was in 1967 against the Phillies. I was facing my former teammate Jim Bunning, and the Cubs won 4-2 in Wrigley Field. Little did I know that my mother and father were going to be there - they were able to get down to Chicago for the game. I didn't even see them until about the eighth inning. It was pretty exciting - I was a kid, just 22 or 23 years old, pitching against a veteran like Jim Bunning.

"To me, an Opening Day start was a special thing. It was a reward given to a pitcher who worked hard in spring training, regardless of whether he was a veteran or not. If you were named the Opening Day starter, it was considered a pat on the back by the manager and the ballclub.

"On Opening Day in 1969, we were winning the ballgame, when in the ninth, Don Money hit his second home run off me that day, a two run homer, that tied it up.

"In 1971, I pitched on Opening Day against Bob Gibson and the Cardinals. Bob and I faced each other probably 12 or more times during our careers, and they were usually pretty good duels. And the rivalry between the Cubs and the Cardinals was so strong. I found out later in life that Bob is a real nice guy, but he didn't talk too much to opposing players or pitchers while he played. Billy Williams hit a home run to win the game for the Cubs and me - you know, Billy always hit Bob pretty well."

See you in two weeks. Richie