Employment & Labor Insider

In recent years, the National Football League has fought and lost high-stakes court battles trying to force claims by coaches Brian Flores and Jon Gruden into a Commissioner-controlled arbitration process.

The NFL’s arbitration process also gives the Commissioner a leading role in claims by less-visible club employees. That proved fatal to the Los Angeles Rams’ attempt to force a lawsuit brought by former employee Brittany Todd out of a California court and into arbitration.

The Commissioner’s powerful -- but diminishing -- arbitral role

For more than a century, courts were deferential to the authority of sports leagues commissioners to take actions they determined to be in the best interests of their leagues. In doing so, courts turned aside legal challenges from players, team owners, and others. In recent decades, 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 has recently come crashing down. In August 2025, the U.S. Court of Appeals for the Second Circuit ruled that Brian Flores did not have to arbitrate his claims of race discrimination against several teams and the league. That same month, the Supreme Court of Nevada ruled that Jon Gruden also did not have to arbitrate his claims that the NFL tortiously interfered in his employment relationship with the Las Vegas Raiders. In both cases, the arbitrator would have been NFL Commissioner Roger Goodell.

Ms. Todd made the same objection to arbitrating her claims. The court found in her favor, but said it did not need to rely on the Flores or Gruden cases to make its decision under California law.

Ms. Todd’s turn

Ms. Todd was employed by the Rams from July 2017 until March 2026, servicing the team’s VIP ticket members and premium club spaces. She alleges that she was terminated after complaining about her supervisors’ alcohol abuse during work hours and their hostility toward other employees’ religions. She filed suit in April 2026, asserting retaliation, wrongful termination, harassment, discrimination, and related claims.

Ms. Todd admittedly signed the Rams’ employee handbook, which had an arbitration provision. Like most such provisions, it required that any dispute related to employment, or separation from employment, be resolved exclusively through arbitration.

Less typical was the Rams’ chosen arbitration process. The handbook provides that any dispute is to be resolved in accordance with the NFL’s Dispute Resolution Procedural Guidelines.

Here is where the Commissioner comes in.

The NFL’s Guidelines dictate that “football-oriented” disputes are to arbitrated before the Commissioner or his designee. Disputes that are not football-oriented – including “claims of discrimination, retaliation, termination and compensation” – are directed to JAMS, a national alternative dispute resolution provider. The Commissioner, in his sole discretion, decides whether a dispute is football-oriented or not.

Ms. Todd argued that this process made the arbitration agreement unconscionable and thus unenforceable.

The California courts versus the Commissioner

The whole of California government has a longstanding antipathy toward forced arbitration of employment-related claims. The legislature has enacted numerous laws that have been struck down by federal courts, including the U.S. Supreme Court, as infringing on the contractual right to arbitration as expressed in the Federal Arbitration Act.

Nonetheless, the California courts have imposed what are generally considered the nation’s strictest standards for enforcing arbitration agreements. Under the guidance of the California Supreme Court, arbitration agreements may be found unenforceable when they are procedurally and substantively unconscionable. A low level of procedural unconscionability may require a higher degree of substantive unconscionability and vice versa, so long as both are present in some meaningful amount.

The court in Ms. Todd’s case found a moderate degree of procedural unconscionability. The arbitration agreement was an “adhesion” contract, meaning that Ms. Todd had no choice but to sign it as a condition of employment. On the other hand, she was given adequate time to review and consider it, and the agreement itself was “only three pages and in an easily readable font size.”

However, the court found it unfair that the agreement incorporated by reference the NFL Constitution and Bylaws but did not provide those documents or direct Ms. Todd to where she could find them.  The Constitution and Bylaws contained “crucial terms that would decide whether the NFL Commissioner or JAMS would hear the dispute” and thus should have been provided.

The court then found a high level of substantive unconscionability by failing to “provide for a neutral arbitration.” Here, the court did not mince words in its disapproval:

The Court finds unconscionability permeates the Arbitration Agreement. The NFL Commissioner’s gatekeeping role is fundamental to the arbitration procedure created by the Arbitration Agreement. The Arbitration Agreement was clearly drafted to place a thumb on the scales in the employer’s favor and to obstruct the employee’s access to a fair arbitration. Defendant inexplicably listed claims that were clearly not “football-oriented” (claims of discrimination, retaliation, termination and compensation) but stopped short of simply stating that those claims would be exempt from the NFL Commissioner’s review and would be sent directly to JAMS. The defects in the Arbitration Agreement indicate that Defendant engaged in a “systematic effort to impose arbitration on the weaker party not simply as an alternative to litigation, but to secure a forum that works to the stronger party's advantage.”

(Citation omitted.)

As a result, the court declined to sever the offending provision from the arbitration agreement, citing the need for a “deterrent effect” on employers who may “attempt to overreach.”

Importantly, the court’s decision is not immediately appealable – meaning the Rams would have to see the case through adjudication before seeking appellate court review (putting aside unlikely efforts seeking extraordinary relief).

The NFL at a crossroads

The NFL has proved adept at avoiding and weathering controversies in the past. Nevertheless, the league places considerable emphasis on protecting its image, which includes trying to keep unflattering issues from becoming public or, at least, to minimize the publicity (which is part of the Commissioner’s role in “protecting the shield”). Similarly, the league greatly values the role and authority of its Commissioner. Both principles have now been severely undermined by these recent decisions.

After the decisions in the Flores and Gruden cases, I recommended seven steps the leagues – particularly the NFL – could take to save Commissioner authority over employment-related disputes:

• Vest initial arbitral authority in the Commissioner.
• Broaden the coverage of claims covered by the arbitration provision.
• Clarify the arbitration rules.
• Create a process for managing possible conflicts of interest.
• Consider how to manage actions naming the league or the Commissioner as a party.
• Freeze the NFL Constitution provisions applicable to the controversy.
• Identify criteria for the league’s interest to be considered by a neutral arbitrator.

Neither the NFL, nor the Los Angeles Rams, appears to have heeded my advice. As a result, if there is no settlement, the club will now face an embarrassing public lawsuit.