Employment & Labor Insider

The National Football League does not suffer many losing streaks. But it has been taking a hit with recent court decisions disapproving of its arbitration process.

The process, which teams are required to impose on non-player employees, is controlled by the NFL Commissioner.

But the NFL’s arbitration process had a win on October 5, with a decision requiring two ex-employees of the Arizona Cardinals to arbitrate their claims against the club.

The Commissioner’s powerful – but diminishing - arbitral role

For more than a century, courts deferred to the authority of commissioners to take actions that the commissioners determined to be in the best interests of their sports leagues. In doing so, courts turned aside legal challenges from players, team owners, and others. More recently, those courts have affirmed the authority of commissioners – particularly in the NFL – to be the arbitrators in disputes involving players, teams, team personnel, owners, and others within the leagues’ structure.

That edifice of authority has recently come crashing down.  In August 2025, the U.S. Court of Appeals for the Second Circuit ruled that coach Brian Flores did not have to arbitrate his claims of race discrimination before NFL Commissioner Roger Goodell.  That same month, the Supreme Court of Nevada ruled that former coach Jon Gruden also did not have to arbitrate before Commissioner Goodell his claims that the NFL tortiously interfered in his employment relationship with the Las Vegas Raiders.

In both cases, the courts objected to an arbitration process that would permit the Commissioner or his designee to be the arbitrator, given that the NFL is a defendant in the Flores case and the Commissioner himself is a defendant in the Gruden case. In particularly harsh language, the Second Circuit found that the NFL arbitration process “fails to bear even a passing resemblance to traditional arbitral practice” and “is unworthy even of the name of arbitration.”

Neither the Commissioner nor the NFL were parties in a lawsuit brought by Brittany Todd against the Los Angeles Rams, but the league’s arbitration process fared no better in that case. In an August 2026 order, a California state court ruled that Ms. Todd, a former member services representative, did not have to submit her claims to the Commissioner-controlled arbitration process.  In particular, the court held that the arbitration agreement contained a high level of substantive unconscionability by failing to “provide for a neutral arbitration.” 

The Cardinals case

This past April, Kendra Hogue and Don Shumpert filed a race discrimination lawsuit in Arizona state court against the Cardinals, its owner Michael Bidwill, and Chief Operating Officer Jeremy Walls. 

Mr. Shumpert also asserts a claim for breach of the implied covenant of good faith and fair dealing arising out of what he says was a failure to raise his title and pay to meet his actual obligations in the fall of 2022, and a defamation claim based on the Cardinals’ alleged misrepresentations about his termination that same year.

Cardinals seek to arbitrate

The discrimination claims were brought under federal law rather than the Arizona Civil Rights Act, allowing the defendants to remove the case to federal court. Federal court is almost always the preferred venue for defendants in discrimination cases.

After removal, the defendants moved to compel arbitration in accordance with agreements between the plaintiffs and the Cardinals.

As part of her employment, Ms. Hogue executed an “Employee Certificate,” in which she agreed to abide by NFL rules, respect the team’s confidential information, and to have any employment disputes “be referred to the Commissioner of the NFL or his designee for binding arbitration.”

Like the arbitration agreement at issue in the Brittany Todd case, Ms. Hogue’s agreement provided that football-oriented disputes would be heard by the Commissioner or his designee in accordance with the NFL’s Dispute Resolution Procedural Guidelines, while non-football-oriented disputes “may” be directed to JAMS.

The Hogue agreement also directed that “any claim that all or any part of this document is void or voidable” be referred to the Commissioner.

As a coach, Mr. Schumpert had a full employment agreement with the Cardinals, but it contained the same arbitration language and attached the NFL’s Dispute Resolution Procedural Guidelines.

Based on the language in the plaintiffs’ agreements, the defendants argued that all of the claims were subject to arbitration and that any dispute about the enforceability of the arbitration agreements had to be decided by the Commissioner or his designee.

The Cardinals had previously prevailed on a motion to compel in similar circumstances. In February 2025, the same federal court had ordered claims brought by Terry McDonough, the club’s former Vice President of Player Personnel, to be arbitrated.

But Ms. Hogue and Mr. Shumpert responded with the full force of the Flores and Gruden decisions. They argued that the Commissioner-led arbitration process was fatally biased, as evidenced by the fact that Defendant Bidwill is one of the individuals responsible for appointing, compensating, and evaluating the Commissioner’s performance.

The decision in the Brittany Todd case came down after Ms. Hogue and Mr. Shumpert filed their opposition, and the docket does not reflect that there was any attempt to bring that decision to the court’s attention, despite the similarities between the cases.

A “close” call, but defendants get to arbitrate

The court granted the defendants’ motion, focusing primarily on the language saying that any disputes about the enforceability of the arbitration clause were to be decided by the Commissioner as arbitrator. Parties can agree to delegate decisions about arbitrability and enforceability to the arbitrator, the court said (correctly).

The court acknowledged that the arbitration agreements were adhesion contracts, but found no other evidence that they were procedurally unconscionable.

According to the court, it was a close call as to whether the language was substantively unconscionable. Ultimately, the court concluded that there was insufficient evidence that the Commissioner would exercise his arbitral authority in a biased manner. The Commissioner’s “league-wide responsibilities do not establish that he is ‘beholden’ to the Cardinals or Bidwill,” in the court’s view. Further, unlike in Flores and Gruden, “neither [the Commissioner] nor the NFL is a defendant or accused of the underlying conduct.” Finally, the court credited the representations from the defendants’ counsel at oral argument “that he expected the Commissioner to refer [the matter] to JAMS.”

The plaintiffs do not have the right to an immediate appeal, so the case will now proceed to arbitration. But they can take solace – Terry McDonough ultimately won $3 million before a neutral arbitrator.