Can Brian Flores’ Racial Discrimination Allegations Burst the NFL’s Arbitration Bubble?
By Nicole Antolino* Posted: 09/26/2022
Flores’ Suit and Commissioner’s Arbitration History
In February 2022, Brian Flores, a Black head coach, embarked on a historic lawsuit against the National Football League (“NFL” or the “League”) and multiple member teams for racial discrimination. In the suit, Flores seeks to represent the Black coaches and general managers allegedly passed over during the hiring processes, which Flores credits to a pattern of systemic racism within the League. One of many accusations in the suit involves the failed institution and application of the “Rooney Rule,” an executive recruiting policy adopted by the NFL which requires teams to interview two minority candidates for available coaching and management positions to create opportunities for diversity in club leadership roles. However, the lawsuit alleges the NFL’s Rooney Rule is both ineffective and counterintuitive by “literally forcing teams to interview minority candidates,” which does not lead to offers and results in numerous sham interviews for unobtainable positions. Since filing as a class action, Flores welcomed other coaches and managers to join the lawsuit, subsequently amending his complaint in April 2022 to include coaches Steve Wilks and Ray Horton (collectively “Plaintiffs”) as additional class representatives. However, Flores is not so welcome to the NFL’s attempt to move the dispute to private arbitration.
As defendants, the NFL and its member teams moved to compel arbitration under the Federal Arbitration Act (“FAA” or the “Act”), basing their assertion on the individuals’ employment contracts where each Plaintiff agreed to resolve “any dispute” between a coach and any one or more NFL teams through arbitration. Additionally, the defendants contend that the Plaintiffs’ issues with the NFL’s internal rules, specifically the Rooney Rule and Commissioner procedures, have historically been left to the League’s arbitration process. If the NFL is successful, the NFL Bylaws would govern the internal arbitration procedures, meaning the NFL’s Commissioner, Roger Goodell, would act as “judge, jury, and executioner,” of the Plaintiffs’ allegations against the NFL. In response, Flores’ has implored the U.S. District Court to reject the motion to compel arbitration, arguing that Goodell is incapable of being fair while overseeing and ruling on the dispute over the League’s systemic discrimination due to his financial and reputational interest in the NFL.
Historically, courts are generally favorable to national leagues’ arbitration policies and commissioner governance, where the conduct falls within the sport’s bylaws and agreements. The rationale here is to place arbitration clauses on equal footing with other contracts and, thus, enforce them for validity rather than substance. Disputes between persons and members of a league date back almost fifty years to the case of Charles O’ Finley v. Kuhn, where the Seventh Circuit notably found that a Commissioner’s authority extends to solely deciding what is in the “best interest” of the sport and acting preventatively and disciplinarily to conduct contrary to such interest. The plaintiffs in Finley similarly argued that they were not bound to arbitration in a dispute against the MLB Commissioner Kuhn over Kuhn’s conduct. The court reasoned that matters of internal standards and procedures of professional sports leagues tend to be unfamiliar to courts and, therefore, “require some expertise in their application.” As such, the court found the Major League Baseball Agreement was valid and ordered arbitration under the league’s contract – overseen by Commissioner Kuhn.
In the employment context, mandatory arbitration became increasingly binding on employees following the Supreme Court’s holding in Circuit City Stores, Inc. v. Adams. In Circuit City, the Court narrowly interpreted Section 1 of the FAA to hold that only employment contracts of transportation workers were exempted from arbitration under the Act. Here, the court denied the opportunity to extend arbitration protection to all other types of employees “involved” in interstate commerce, for instance, which signified to nonunionized private sector workers that arbitration provisions would generally be supported. The holding signified to employees and employers that the limited exemption courts would extend to persons seeking a way out of an arbitration provision.
Fast forward a few decades and many arbitration lawsuits later, the Court revisited forced arbitration in AT&T Mobility LLC v. Concepcion, providing the basis for a disputed, “strong federal policy favoring the arbitrability of disputes.” There, the Court cited Sections 2 – 4 of the FAA, concluding that because parties may agree to limit issues subject to arbitration, specific rules within arbitration, and with whom a party will arbitrate its disputes, a court is generally limited in determining whether there is a valid agreement.
While federal court jurisprudence on arbitration might be shifting, it is unclear how this will affect the sophisticated, highly-lawyered contracts in professional sports. In May 2022, the United States Supreme Court considered whether a party who does not act promptly to invoke an arbitration clause waives the right to compel arbitration altogether in Morgan v. Sundance Inc. The Court held it does, reasoning that because Section 6 of the FAA prohibits courts from creating arbitration-specific procedural rules, federal rules concerning waiver apply. While not directly on point for either party, the Court’s holding resolved a long-winded circuit split and challenged the notion that federal courts automatically favor arbitration.
Critics of arbitration believe that its allowance fosters secret hiding and avoidance of public accountability. Moreover, one critic argues that the NFL’s current Collective Bargaining Agreement evades the requirement of fundamental fairness under the FAA by relying on prior case law that failed to balance the NFL Commissioner’s conflict of interest properly.
Nonetheless, in anticipating the strength of the NFL’s argument, Flores’ attorneys filed a motion for discovery, asking Judge Caproni to grant their request to acquire documents concerning the parties’ agreement to arbitrate and applicable arbitration policies within the NFL. Judge Caproni denied the discovery motion, concluding that as a matter of law, the Plaintiffs’ motion lacked reliable “facts or evidence to place the validity of the agreement to arbitrate in issue.” Furthermore, regarding Commissioner bias in arbitration proceedings, Judge Caproni noted that the FAA contemplates protection for parties seeking judicial protection following unfair arbitration proceedings under Section 10(b). However, it could be of significance to Judge Caproni that a Nevada judge, Nancy Allf, recently denied the NFL’s motion to compel arbitration in Las Vegas Raider’s head coach Jon Gruden’s lawsuit against the league, mostly, however, because the NFL was not sufficiently a party to Gruden’s contract with the Raiders.
In the interim, Flores’ discovery motion was denied, leaving the question of forced arbitration lingering over the next few weeks. In response, Flores and his attorneys have mirrored many arguments following Gruden’s success in Nevada’s Eighth Judicial District Court. Even so, it is evident that this class action faces an uphill battle to defeat the motion to compel arbitration and prevail at trial in proving the inherently disguised motives within systemic racial discrimination.
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2024, Villanova University Charles Widger School of Law.
 See Pro Say, Breaking Down the NFL Racial Bias Suit, Law360, at 17:00 (Feb. 4, 2022), https://www.law360.com/podcast. (discussing Flores racial background as basis for discrimination lawsuit). In documents filed with the court, Brian Flores describes himself in the lawsuit as a Black coach, born in Brooklyn, NY, to Honduran immigrants, who has been a victim of discrimination throughout his career with the NFL based on his race. See id. (providing heritage background). His career began with the New England Patriots as a scouting assistant in 2004, worked his way up to assistant coaching levels for offense, defense, and special teams, and earned four Super Bowl Championships with the team. See id. (providing employment background). In 2019, the Miami Dolphins Flores hired Flores as Head Coach for three seasons, two of which were back-to-back winning seasons. See id. (summarizing Flores’s employment within NFL up to lawsuit).
 See Compl. & Demand for Jury Trial, Flores, et al. v. The National Football League et al., No. 1:22-cv-00871 at 1-4 (S.D.N.Y 2022) (filing as class representative in a class action complaint for violation of federal and state civil rights acts). The complaint lists defendants as “the National Football League, the New York Giants Inc., Miami Dolphins LTD., Denver Broncos, and John Doe Teams 1 through 29,” reflecting the remaining participant organizations within the NFL not listed by name. Id. at 1 (stating parties). Plaintiffs allege Defendants violate “Section 1981 of the Civil Rights Act of 1866 (“Section 1981”), the New Jersey Law Against Discrimination, (“NJLAD”), the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. (“NYSHRL”), the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. (“NYCHRL”) and the Florida Private Whistleblower Statute § 448-102 (“FPWBS”).” Id. at 8. (listing federal and state discrimination laws allegedly violated by NFL and member teams)
 See Zachary Zagger, Ex-Dolphins Coach Sues NFL, Alleging Systemic Race Bias, Law360 (Feb. 1, 2022) https://www.law360.com/articles/1460925 (summarizing Black head coaches, offensive and defensive coordinators, quarterback coaches and general managers pursuing legal action to ensure Black candidates receive proper consideration during NFL hiring process).
 See The Rooney Rule, NFL Operations, https://operations.nfl.com/inside-football-ops/diversity-inclusion/the-rooney-rule/ (last visited Sept. 8, 2022) (illustrating purpose and history of Rooney Rule). The NFL describes the Rooney Rule as part of the NFL’s effort “to develop a deep, sustainable talent pool at all levels of the organization. . . . Through hiring best practices, the Rooney Rule aims to increase the number of minorities hired in head coach, general manager, and executive positions.” Id. (publicizing NFL’s internal diversity programs).
 See Am. Compl. & Demand for Jury Trial, Flores, et al. v. The National Football League et al., No. 1:22-cv-00871 (S.D.N.Y. 2022) (citing interview with Denver Broncos where executives disregarded timeliness formalities and infamous screenshot from Bill Belichick congratulating “wrong Brian“ in mis-text). The lawsuit furthers the Plaintiffs’ argument that the Rooney Rule is ineffective in promoting diversity, as demonstrated by the lack of head coaching positions obtained by Black candidates in the 20 years since its adoption – only 11%, or 15 of approximately 129 vacancies over 20 years. See id. (providing statistics of Black representation in coaching roles within NFL); see also Dante Chinni, Data show how bad the NFL’s racial equality problem is among coaches, NBC News, https://www.nbcnews.com/politics/meet-the-press/data-shows-how-bad-nfl-s-racial-equality-problem-among-n1288709#:~:text=The%20data%20show%20a%20
. (Feb. 6, 2022) (providing data released by NFL’s 2021 Diversity and Inclusion Report that from 2012 to 2021, there were 62 head coaching hires in the league, 51 of which went to white men).
 See Am. Compl. & Demand for Jury Trial, supra note 5 (adding Wilks, who accuses Arizona Cardinals of unfair termination, and Horton, who alleges Tennessee Titans procured “sham interview,” both teams now named as defendants).
 See generally Br. For Pls.’, Flores, et al. v. The National Football League et al., No. 1:22-cv-00871 (S.D.N.Y. Aug. 31, 2022) (requesting court deny NFL’s motion to move suit to arbitration and stay for further proceedings).
 9 U.S.C. §§ 1-14 (also referred to as the Federal Arbitration Act (“FAA”)) (providing for judicial facilitation of private dispute resolution in state and federal courts).
 See Br. for Defs.’, Flores, et al. v. The National Football League et al., No. 1:22-cv-00871 (S.D.N.Y. June 21, 2022) (citing NFL Constitution and Bylaws under NFL’s Dispute Resolution Procedural Guidelines); see also Larry Neumeister, Lawyers bash Goodell-led arbitration in NFL racial bias suit, AP News (Aug. 31, 2022), https://apnews.com/article/nfl-sports-new-york-lawsuits-manhattan-08d43993f57ecf966bc9a24a0dc70eda (highlighting Defendants’ demand that coaches required to go to arbitration individually rather than as group).
 See Br. for Defs.’, supra note 9 at 16-17 (asserting plaintiffs’ allegations of violating internal rules fall within arbitration agreement over disputes concerning NFL governance).
 See Alexander Diegel, Why the NFL Can’t Survive with Roger Goodell as Judge, Jury and Executioner, Bleacher Rep. (Apr. 19, 2012), https://bleacherreport.com/articles/1151457-why-the-nfl-cant-survive-with-roger-goodell-as-judge-jury-and-execcutioner (criticizing Goodell’s breadth of authority over off-field player conduct).
 See Br. for Pls.’, supra note 7 (arguing Commissioner Goodell’s inherent bias in dispute outcome and NFL’s technical inability to compel arbitration because respective contracts are between member teams and individuals); See Neumeister, supra note 9 (reporting on Plaintiff’s inclusion of financial documents in complaint to demonstrate Goodell’s financial interest).
 See e.g., NFL Mgmt. Council v. NFL Players Ass’n, 820 F.3d 527, 548 (2d Cir. 2016) (holding Commissioner Goodell properly exercised broad discretion as arbitrator to resolve the intramural controversy between the NFL and NFL player’s game-related conduct); Charles O. Finley & Co. v. Kuhn, 569 F.2d 527, 544 (7th Cir. 1978) (holding Major League Baseball Club owners waived right to recourse through voluntary arbitration provision in league agreement).
 See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344-46 (2011) (holding that arbitration clauses are not inherently unconscionable and thus enforceable).
 See Kuhn, 569 F.2d at 532 (evaluating notorious MLB Club owner of Oakland A’s, Charles Finley’s lawsuit against the MLB Commissioner, Bowie Kuhn, for blocking three trades of player’s contract rights in self-determined “best interest of baseball”).
 See id. at 535 (interpreting construction of Major League Baseball (MLB) Agreement as giving expressly broad authority to Commissioner such that actions need not be limited to enumerated powers authorized by its signing participants).
See id. at 537 (claiming arbitration clauses were invalid against public policy).
 See id. (reasoning MLB agreement “waiver of right to recourse” provision was valid and enforceable upon players, owners, and club teams because agreements were voluntarily entered and demonstrated a history and sophistication that negated indications of a contract of adhesion).
 See id. at 543 (rejecting plaintiffs’ claims that arbitration clauses are invalid against public policy because limited to circumstances involving involuntary waiver of rights, lack of knowledge or intelligence, or unequal bargaining positions). The Seventh Circuit held that the validity of the MLB Agreement “cannot be seriously questioned.” See id. (finding agreement valid and consistent with Illinois law, Uniform Agreement Act, and policy for providing private resolution and reducing litigation).
 See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 117 (2001) (holding Section 1 exclusion from reaching “contracts of employment of seamen, railroad employees, or any other class of workers engaged in . . . interstate commerce. . . .” did not exclude all employment contracts). “The exemption clause provides the Act shall not apply ‘to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.’” See id. at 112 (quoting 9 U.S.C. § 1) (explaining arbitration exclusions for specific employment types).
 See id. (finding Act’s language of “any other class of workers engaged in foreign or interstate commerce,” applicable only to transportation workers).
 See id. at 115 (finding plain meaning of “engaged in commerce” is narrower than open-ended terms “affecting” or “involving” commerce, which Congress declined to use).
 See Jeremy Wright, Arbitration In The Workplace: The Need For Legislative Intervention, 117 Nw. U. L. Rev. Online 1, 15 (explaining court treatment and significance of arbitration provisions in employment contracts).
 See Concepcion, supra note 14 (holding state law cannot use contract doctrines of unconscionability, duress, etc. to discriminate or apply greater scrutiny to arbitration provisions over other contract provisions).
 See id. (finding FAA goals of enforcing private agreements and encouraging efficient, speedy dispute resolution should not be frustrated by courts). In the case, Justice Scalia writing for the majority, summarized the relevant sections as follows,
“Section 2 makes arbitration agreements ‘valid, irrevocable, and enforceable’ as written (subject, of course, to the saving clause); § 3 requires courts to stay litigation of arbitral claims pending arbitration of those claims ‘in accordance with the terms of the agreement’; and § 4 requires courts to compel arbitration ‘in accordance with the terms of the agreement’ upon the motion of either party to the agreement (assuming that the ‘making of the arbitration agreement or the failure . . . to perform the same’ is not at issue).” See id. at 344 (holding California state law impermissibly interfered with, and was thus preempted by, FAA).
 See Wright, supra note 22 (arguing recent judicial decisions ensure uniform enforcement of arbitration agreements but likely enable parties to more easily enforce their agreements to resolve disputes in arbitration without having an additional burden, such as prejudice, to satisfy).
 Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1710 (2022) (holding that where employer initially defended itself in court for eight months, it virtually waived right to compel arbitration).
 See id. at 1712-14 (“But the FAA’s ‘policy favoring arbitration’ does not authorize federal courts to invent special, arbitration-preferring procedural rules.”).
“The text of the FAA makes clear that courts are not to create arbitration-specific procedural rules like the one here. Section 6 of the FAA provides that any application under the statute—including an application to stay litigation or compel arbitration— ‘shall be made and heard in the manner provided by law for the making and hearing of motions’ (unless the statute says otherwise).” See id. at 1714 (quoting 9 U.S.C. § 6) (following Federal Rules of Civil Procedure guidelines without clear language from the FAA).
 See id. (limiting holding to courts attempting to make up new procedural rules based on FAA’s “policy favoring arbitration”). Nine Federal Circuits invoke “the strong federal policy favoring arbitration” to support an arbitration-specific waiver rule demanding a showing of prejudice, while another two Circuits reject that rule. See id. (explaining circuit split).
 See Wright, supra note 23 (arguing need for legislative intervention on arbitration policy).
 See Joseph T. McClure, Throwing the Challenge Flag on the NFL’s Collective Bargaining Agreement, 107 KY. L. J., (2019) (critiquing NFL Mgmt. Council v. NFL Players Ass’n (Brady II), 820 F.3d 527, 531–32 (2nd Cir. 2016)).
 See Letter for Pls.’, Flores, et al. v. The National Football League et al., No. 22 Civ. 00871 (S.D.N.Y. June 27, 2022) (arguing public attention to prominent organizations supports requests for openness in proceedings).
 Flores, et al. v. The National Football League et al., No. 22 Civ. 00871 at 4 (S.D.N.Y Aug. 4, 2022) (providing order denying motion for discovery in advance of anticipated response to defendants’ motion to compel arbitration).
 See 9 U.S.C. § 10; see also Flores, et al., supra note 33 at 6 (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 30 (1991)) (courts can “overturn arbitration decisions ‘where there was evident partiality or corruption in the arbitrators.’”)
 See Christopher Deubert, NFL’s Arbitration Fumbles Provide Lessons On Drafting Pacts, Law360 (July 26, 2022), https://www.law360.com/articles/1514028/nfl-s-arbitration-fumbles-provide-lessons-on-drafting-pacts (comparing lack of NFL mention in Gruden’s employment contract with Raiders as opposed to some Plaintiffs in Flores lawsuit).
 See Justicia – Dockets and Filing, Flores v. The National Football League et al (last visited Sept. 8, 2022), https://dockets.justia.com/docket/new-york/nysdce/1:2022cv00871/574213 (reporting letter motion for extension of time granted Aug. 9, 2022).
 See Deubert, supra note 35 (discussing practice methods for employers drafting arbitration provisions in contracts).
 See Zachary Zagger, Ex-NFL Coach In Racial Bias Suit Backs Bill To Ax Forced Arb, Law360 (Mar. 14, 2022), https://www.law360.com/articles/1473521/ex-nfl-coach-in-racial-bias-suit-backs-bill-to-ax-forced-arb (quoting Flores) (“Forced arbitration really is the crux of why all forms of discrimination are so prevalent in this country . . . [because it] allows an employer to hide behind secret and confidential proceedings. The employer avoids scrutiny and avoids public accountability.”)