Two years into his bias suit against NFL, Brian Flores has little to show for it.

Arbitration evaders, take note.

In February 2022, coach Brian Flores filed a press-grabbing lawsuit accusing the National Football League and its clubs of racially discriminatory hiring practices, the Miami Dolphins of terminating him because he is Black, and the New York Giants and Denver Broncos of not hiring him because he is Black. Mr. Flores sought to represent a class of Black coaches and executives whom he contends were similarly discriminated against. 

Although Mr. Flores’ coaching career has continued to be successful (he’s currently defensive coordinator for the Minnesota Vikings and rumored to be in consideration for head coaching vacancies this off season), his lawsuit has not.

Mr. Flores is not fighting alone. Two other Black coaches, Steve Wilks and Ray Horton, joined his lawsuit early on as named plaintiffs. They brought allegations against the Arizona Cardinals and Tennessee Titans, clubs for which they had worked. In April 2022, all three coaches filed an Amended Complaint and added the Houston Texans as a named defendant, alleging that the Texans did not hire Mr. Flores because of his lawsuit.

Fighting arbitration

The principal impediment to Mr. Flores’ lawsuit thus far has been his desire to avoid arbitration. In June 2022, the NFL and the clubs moved to compel arbitration, relying on language in the coaches’ employment agreements which, as I explained in a July 2022 post, generally required them to arbitrate disputes arising out of their employment in accordance with the NFL’s Constitution and Bylaws and Dispute Resolution Procedural Guidelines. Those documents require disputes to be arbitrated before the NFL Commissioner.

Last March, Judge Valerie Caproni of the U.S. District Court for the Southern District of New York issued a decision largely in favor of the NFL. Judge Caproni determined that the coaches’ claims related to their employment with the Dolphins, Cardinals, and Titans must be arbitrated pursuant to the arbitration provisions in the coaches’ contracts with those clubs. She also ruled that the arbitration agreements cover the coaches’ claims against the NFL.

The arbitration provisions, however, do not cover the claims against the Broncos, Giants, and Texans because the coaches had no contracts with them. Thus, Judge Caproni said that the coaches could pursue those claims in federal court, as well as the claims against the NFL that were related to the claims against those three clubs.

In July, Judge Caproni denied dueling motions for reconsideration of her initial order. The coaches’ argument for reconsideration rested largely on their contention that NFL Commissioner Roger Goodell would be biased as an arbitrator. In a footnote, Judge Caproni expressed some concern about the fairness of the process but held that as a matter of law she could not prejudge the Commissioner’s actions as arbitrator but could only “address issues of bias in the administration of arbitration by examining whether the arbitrator demonstrated evident partiality in presiding over the arbitration.” For these reasons, I predicted that the NFL would be likely to choose an outside attorney to serve as arbitrator in the matter.

Finally, earlier this month, Judge Caproni denied the coaches’ request to certify an interlocutory appeal of her two prior orders, finding that the required exceptional circumstances were not present and noting the “Second Circuit’s distaste for delaying the arbitral process through appellate review.”

Will the coaches now arbitrate?

The coaches are now at a bit of a crossroads. The Broncos, Giants, and Texans will presumably soon have to file an Answer in response to the Amended Complaint – as well as the NFL, insofar as the allegations against the NFL relate to those three clubs. But, based on my conversations with persons knowledgeable about the proceedings, it appears that the coaches have not yet filed an arbitration in accordance with the NFL’s rules, presumably because they do not want to waive any arguments against arbitrability. But it seems that they have no choice but to pursue a bifurcated action.

Having largely prevailed in its efforts to enforce its arbitration agreements, the NFL may consider this to be the time to settle the case to avoid discovery about the NFL’s hiring practices and treatment of racial minorities, while also awaiting possible future legal challenges to the Commissioner’s arbitral authority. The class claims complicate any possible resolution because settlement of those claims would require court approval. Considering Judge Caproni’s prior orders, there is an argument that the class claims are no longer viable. But even if the defendants want to settle, there is no guarantee that the coaches will agree.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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