By Christopher R. Deubert, Senior Writer
The racial discrimination case filed by NFL coach Brian Flores against the league and some of its clubs has made no meaningful progress since it was filed in February 2022. The delay is the result of Flores’ decision to pursue the action in federal court rather than in arbitration and to challenge NFL Commissioner Roger Goodell’s authority to be the arbitrator in any such arbitration. Flores has repeatedly lost this argument and the issue is now before the Second Circuit Court of Appeals. However, Flores’ arguments are potentially mooted by Goodell’s recent appointment of former New Jersey attorney general Peter C. Harvey as the arbitrator.
The Court Penalizes Flores for a False Start
In March 2023, the United States District Court for the Southern District of New York issued a decision largely granting the NFL’s motion to compel the action to arbitration. The court rejected Flores’ claims that the arbitration provisions in his contract were unenforceable because they provided Goodell the authority to hear the dispute. Instead, the court reasoned, if Goodell administered the arbitration in a biased manner, then Flores could come into court and request the arbitration decision be vacated. But the court would not prejudge the fairness of the proceedings agreed to by Flores in his contract (the New York Knicks recently lost a challenge to NBA Commissioner Adam Silver’s authority for the same reason).
The NFL Has the Ball
The NFL is appealing the portions of the court’s order denying its motion to compel arbitration to the Second Circuit. Flores, on the other hand, had no right to an appeal at this stage of the proceedings and the court denied his request to consider one.
On July 18, 2024, 12 professors with expertise in arbitration law, led by Imre Szalai at Loyola University New Orleans College of Law, filed a brief urging the appeals court to consider more broadly the potential impact of upholding the NFL’s process through which any employment-related claims brought by NFL club employees are to be decided in an arbitration presided over by the Commissioner. The professors argued that permitting Goodell to serve as arbitrator “is unconscionable and contrary to the norms of fundamental fairness” and would incentivize employers across the country to employ a similar dispute resolution process.
Goodell with the Handoff
The concerns raised both by Flores and the professors were likely not realistic because Goodell would almost certainly not preside over the arbitration. The NFL and Goodell have faced similar claims of bias in the past. To avoid such allegations from undermining the enforceability of the arbitration proceedings, Goodell has regularly appointed a neutral or near-neutral arbitrator to hear high-profile disputes.
He has now done so again. In a September 24, 2024 letter to the Second Circuit, the NFL informed the court that Goodell had designated Harvey as the arbitrator for the Flores matter. Goodell had previously tagged Harvey to hear the NFL’s appeal of an initial disciplinary decision involving Cleveland Browns quarterback DeShaun Watson. That case ultimately settled before Harvey had to weigh in.
Flores’ attorneys complained to the court that Goodell’s designation of Harvey was merely “an attempt to falsely create an appearance of impartiality in the arbitration proceedings.” Harvey’s resume is impeccable and thus Flores’ arguments are unlikely to gain traction. That is particularly true in light of courts’ long-standing deference to the authority of sports league Commissioners to resolve disputes. Indeed, in 2016, the Second Circuit famously upheld Goodell’s authority in disciplining Tom Brady in the “Deflategate” matter.
The NFL’s appeal to the Second Circuit may well be decided in early 2025. Regardless of the outcome, the bulk (if not the entirety) of Flores’ case will have to proceed in arbitration. And by that point, Flores will have spent three years attempting an end around that puts him back in the same position he was before he commenced his lawsuit.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP
