Employment & Labor Insider

In August 2025, a federal appeals court ruled that race discrimination claims brought by Brian Flores, former head coach of the Miami Dolphins, should not be arbitrated before National Football League Commissioner Roger Goodell.

Last week, the NFL filed a petition with the U.S. Supreme Court seeking review of the August ruling, which was issued by a three-judge panel of the U.S. Court of Appeals for the Second Circuit.

The Second Circuit had also held that the NFL’s arbitration process for non-player employees was fundamentally unfair and therefore not entitled to the protections of the Federal Arbitration Act.  The NFL is asking the Supreme Court to restore the courts’ longstanding deference to the dispute resolution processes of sports leagues.

Background

In February 2022, Mr. Flores, who is currently the defensive coordinator for the Minnesota Vikings, filed a race discrimination lawsuit after he was terminated as head coach of the Miami Dolphins and was not hired for head coach positions with the New York Giants, Denver Broncos, or Houston Texans. Mr. Flores seeks to represent a class of Black coaches and executives he contends were similarly discriminated against. He has been joined by two other Black coaches, Steve Wilks and Ray Horton. Their inclusion brought in claims against their former employers, the Arizona Cardinals and Tennessee Titans. All three coaches had arbitration agreements with their teams.

In March 2023, a federal judge in the Southern District of New York issued a decision largely granting the NFL’s motion to require the coaches to arbitrate their claims.

The NFL Constitution gives Commissioner Goodell the authority to be the arbitrator in most disputes. Mr. Flores argued that the arbitration provisions in his contract were unenforceable for this reason. However, the court rejected Mr. Flores’ argument, reasoning that if Commissioner Goodell administered the arbitration in a biased manner, Mr. Flores could then come to court and request that the arbitration decision be vacated. But the court would not prejudge the fairness of the proceedings agreed to by Mr. Flores in his contract. 

On the other hand, the court ruled that the arbitration provisions did not apply to the claims against the Broncos, Giants, and Texans (the teams that did not hire Mr. Flores after his termination from the Dolphins) – or to related claims against the NFL – because the coaches had no contracts with those clubs.  The NFL appealed this aspect of the Court’s ruling.

In its August 2025 decision, the Second Circuit rejected the NFL arbitration process in its entirety as applied to Mr. Flores. Although recognizing that courts generally defer to arbitration, the court found that the NFL process “fails to bear even a passing resemblance to traditional arbitral practice,” “is unworthy even of the name of arbitration,” and therefore is deserving of no protection under the Federal Arbitration Act, which favors enforcement of agreements to arbitrate. The basis for the finding was that Mr. Flores had to submit his claims against the NFL to Commissioner Goodell while Mr. Goodell was the NFL’s principal executive.

Commissioner authority

The Second Circuit decision seems to be at odds with a century of jurisprudence in which courts were deferential to the Commissioners’ role as guardians of their leagues.

For many years, the broad scope of a league’s Commissioner authority has been challenged on numerous occasions across the NFL, Major League Baseball, and more recently, the National Basketball Association. The leagues have historically prevailed, with the courts respecting the unique knowledge of Commissioners in handling intra-league disputes.

Yet, the Second Circuit’s decision in Flores came only days after the Nevada Supreme Court reached a similar conclusion. In a case brought by former Las Vegas Raiders coach Jon Gruden against the NFL and Commissioner Goodell, and after conflicting decisions along the way, all seven judges of the Nevada Supreme Court ruled 5-2 that requiring Mr. Gruden to arbitrate his claims before Commissioner Goodell would be unconscionable because the process “would allow Goodell, as Commissioner, to arbitrate disputes about his own conduct.”

SCOTUS to the rescue?

I have proposed ways in which the NFL could amend its arbitration processes to try to substantially retain the historical role of the Commissioner while also adapting to the requirements that many states and courts impose on arbitration processes today.

Nevertheless, the NFL has chosen to defend its historical practices, not just for itself but also for the other major sports leagues. As noted in the NFL’s petition, MLB, the NBA, and the National Hockey League all have similar arbitration provisions and are all based in New York, where the Second Circuit’s decision controls.

The NFL’s narrow approach may not appeal to the Supreme Court. The specific question the NFL asks the Supreme Court to address is,

Whether an arbitration agreement governing disputes in a professional sports league is categorically unenforceable under the Federal Arbitration Act because it designates the league commissioner as the default arbitrator and permits the commissioner to develop arbitral procedures.

Under Supreme Court Rules, when considering whether to grant a petition, the Court is primarily concerned with whether the case raises important questions of federal law or presents a conflict among the federal appellate courts. The NFL argues that the Second Circuit decision conflicts with Eighth Circuit decisions upholding the Commissioner’s arbitral authority. However, those cases concerned arbitration proceedings with players pursuant to a collective bargaining agreement. The Second Circuit in Flores specifically stated that its decision did not affect its own prior decision in a case involving Tom Brady, upholding Commissioner authority in player-related matters. 

The NFL is on slightly firmer ground arguing that the Second Circuit decision conflicts with a 1978 Seventh Circuit decision affirming the authority of then-MLB Commissioner Bowie Kuhn to disallow certain trades on the grounds that they were not in the best interests of baseball.  Nevertheless, that case concerned two teams of equal bargaining power who were also parties to MLB’s governing agreements – not an employee, as in Flores.

The NFL seeks to expand the concern about the Second Circuit’s decision by arguing that it “threatens to disrupt [a] central principle of the Arbitration Act” – that courts respect the terms of the parties’ agreement. The NFL argues that, if the Second Circuit’s “decision is allowed to stand, judges will . . . find arbitration agreements of all kinds inapplicable based on an amorphous and standardless invocation of procedural inadequacy.” Such a “novel doctrine,” the NFL contends, “threatens to undermine arbitration agreements of all varieties.”

The NFL’s petition may seem too industry-specific to warrant Supreme Court review, but the Court has previously taken cases whose applicability was largely limited to professional sports. In 1996, in Brown v. Pro Football, Inc., the Supreme Court analyzed the elements and scope of the non-statutory labor exemption related to labor negotiations between the NFL and its players union.  Then, in the 2010 case of American Needle, Inc. v. NFL, the Court examined the appropriate antitrust treatment of the NFL’s joint intellectual property pursuits.

It may be time for another review of NFL practices by the highest court.