The opinion of the court was delivered by: TENNEY
Petitioner Riko Enterprises, Inc. (hereinafter "Philadelphia") has moved this Court for an order confirming an arbitration award pursuant to 9 U.S.C. § 9 (1970). Respondent Seattle Supersonics Corporation (hereinafter "Seattle") has cross-moved to dismiss petitioner's application. For the reasons set out below, petitioner's application is dismissed and respondent's motion to vacate is granted.
Philadelphia and Seattle are member teams of the National Basketball Association (hereinafter "NBA") and signatories to its constitution. As members of the NBA they are eligible to participate in its annual college draft by which each team is allowed to select, on a rotating basis, those college players with whom they desire to negotiate contracts of employment. Under the NBA constitution, once a player is selected by a team as a draft choice, that team, and only that team, has the right to negotiate for his services.
In 1969, John Brisker became eligible for the NBA college draft. No NBA member team, however, selected him as one of its choices at the draft meetings. In July 1969, Philadelphia asked that Brisker be placed on its supplemental draft list. Brisker, however, signed a contract to play for the Pittsburgh team of the rival American Basketball Association. In the spring of 1972, the Pittsburgh team became insolvent and Brisker was again free to negotiate with NBA teams. Brisker's attorney contacted the Seattle team and indicated his desire to play in the NBA.
At this point, petitioner and respondent disagree with respect to the action taken by Seattle. Petitioner claims that Seattle continued to negotiate with Brisker even after being informed by NBA Commissioner Kennedy that Philadelphia possessed sole negotiating rights. Seattle, on the other hand, claims that it directed Brisker's attorney to negotiate with Philadelphia and continued to do so until Kennedy informed Brisker's attorney, by letter on June 19, 1972, that Brisker was a "free agent". On August 7, 1972, Brisker signed a contract to play for Seattle. On August 14, 1972, Philadelphia filed formal charges with the Commissioner against Seattle, claiming that Seattle had wilfully violated the NBA's constitution and by-laws by negotiating with Brisker while he was still on Philadelphia's draft list. On August 15, 1972, Commissioner Kennedy approved Brisker's contract with Seattle.
The matter was brought before the NBA Board of Governors (hereinafter the "Board") at a meeting held on September 20, 1972. At that meeting the Board voted to table the charges brought by Philadelphia under PP 13 and 14 of the constitution and refer the matter to the Commissioner under P 24 for disposition. On November 16, 1972, the Commissioner issued his decision finding that Seattle had violated the NBA constitution (i.e., "violated the simple principle of fair play"), fining them $10,000 and awarding Seattle's first round draft pick in the 1973 college draft to Philadelphia.
On March 28, 1973, Philadelphia filed the instant petition for an order confirming the Commissioner's award. Seattle, by order to show cause returnable April 11, 1973, moved to vacate the award. The NBA college draft is scheduled to be held on April 16, 1973.
Before proceeding to a disposition of respondent's motion, it is necessary to consider the procedural issues raised by petitioner. The first objection to respondent's motion is that it is time barred by 9 U.S.C. § 12 (1970), which, in pertinent part, provides:
"Notice of motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered."
Since more than three months have elapsed between November 16, 1972, when the Commissioner rendered his decision, and April 11, 1973, the return date of respondent's motion, petitioner argues that the motion is time barred. Were this an independent motion to vacate, this Court would agree that respondent has run afoul of § 12. Petitioner has, however, by filing the instant application, provided respondent with the very means by which it can still raise the objections otherwise barred by § 12.
"Upon a motion to confirm the party opposing confirmation may apparently object upon any ground which constitutes a sufficient cause under the statute to vacate . . . although no such formal motion has been made."
"Although more than three months have elapsed since the award was filed, the appellant may still assert objections to confirmation of the award. There is authority for the proposition that even after the statutory period for moving to vacate an award has expired, a party may use the statutory grounds for vacation in defense of a motion to confirm." The Hartbridge, 57 F.2d 672, 673 (2d Cir. 1932), cert. denied, ...