## Facts

- James E. Peterson, an NFL player, signed one-year contracts with the Tampa Bay Buccaneers for the 1976–1978 seasons containing a clause requiring salary continuation if he could not play due to a contract-related injury.
- Peterson’s 1977 contract also included a special injury-protection clause providing full salary for 1977 and/or 1978 if a football-related injury prevented him from playing.
- Peterson injured his knee in 1976, missed most games, and was released in summer 1977.
- Peterson claimed he was released because of injury and sought payment under the injury-protection provision; the club asserted he was released for lack of skill and owed no payment.
- Peterson’s agent contacted NFLPA attorney Harold Kennedy for assistance in pursuing the contractual claim through the collectively bargained grievance process.
- Kennedy advised filing an “injury grievance” (with different procedures and time limits than a “non-injury grievance”); the claim was filed accordingly.
- The grievance process later reclassified the claim as a “non-injury grievance,” and it was dismissed as untimely because the non-injury deadline had already passed.
- A later attempt to proceed as an injury grievance was rejected on the merits by an arbitrator.
- Peterson sued the NFLPA for breach of the duty of fair representation and sued NFLPA attorneys Kennedy and Richard A. Berthelsen for malpractice based on their grievance-handling role.

## Issues

1. Whether the NFLPA’s alleged erroneous advice and resulting grievance time bar constituted “arbitrary, discriminatory, or bad faith” conduct sufficient to breach the duty of fair representation.
2. Whether union staff attorneys performing grievance/collective-bargaining representation may be personally liable to an individual union member for malpractice arising from that representation.
3. Whether rulings disposing of the claims against the individual attorneys (including personal jurisdiction and timeliness grounds) should be reversed.

## Decision

- The Ninth Circuit affirmed judgment for all defendants.
- The court held the NFLPA did not breach the duty of fair representation because the record showed, at most, negligence rather than arbitrary, discriminatory, or bad-faith conduct.
- The court held union staff attorneys acting in the grievance/collective-bargaining process owed their professional duty to the union as an entity, not to individual members, and could not be sued by members for malpractice based on that representational work.
- The court affirmed the district court’s dispositions for the individual attorneys (including summary judgment for Kennedy and a directed verdict for Berthelsen) and the post-verdict judgment for the NFLPA.

## Legal Principles

- A union breaches the duty of fair representation only by conduct that is arbitrary, discriminatory, or in bad faith; negligence, poor judgment, or ordinary errors in grievance handling are insufficient.
- The “arbitrary” standard requires conduct outside a wide range of reasonableness; honest mistakes of judgment or fact do not establish a breach.
- The duty of fair representation is not a general guarantee of competent representation equivalent to a malpractice standard.
- Union counsel who provide representational services in grievance and collective-bargaining matters act as agents of the union and owe duties to the union client rather than to individual members in that setting.
- Allowing individual malpractice suits against union counsel for grievance handling would conflict with the union’s control of representation and destabilize the fair-representation remedial structure.

## Conclusion

The Ninth Circuit held that negligent mishandling of a grievance does not, without arbitrariness, discrimination, or bad faith, establish a breach of the union’s duty of fair representation, and that union staff attorneys are not personally subject to malpractice liability to individual members for acts undertaken as part of union grievance representation.


Peterson v. Kennedy, 771 F.2d 1244 (9th Cir. 1985)