By Christopher Deubert, Senior Writer
In February 2022, NFL coach Brian Flores filed a press-grabbing lawsuit accusing the NFL 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. Flores sought to represent a class of Black coaches and executives he contends were similarly discriminated against. While Flores’ coaching career has continued to be successful (he’s defensive coordinator for the Minnesota Vikings and was rumored to be considered for head coaching vacancies this offseason), his lawsuit has not.
As an initial matter, Flores is not fighting alone. Two other Black coaches, Steve Wilks and Ray Horton, joined Flores’ lawsuit early on as named plaintiffs. Their involvement brought specific allegations against the Arizona Cardinals and Tennessee Titans, clubs for which they had worked. They were part of an April 2022 Amended Complaint that saw Flores also add the Houston Texans as named defendant, alleging that they did not hire him because of his lawsuit.
Fighting Arbitration
The principal impediment to Flores’ lawsuit thus far has been his desire to avoid arbitration. In June 2022, the NFL and the clubs moved to compel arbitration of the dispute, relying on language in the coaches’ employment agreements which, in various ways, 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 Commissioner.
As I covered in the March 10, 2023 Sports Litigation Alert, in a March 1, 2023 decision, Judge Valerie Caproni of the United States 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. Further, the court held 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, the coaches can pursue these claims in federal court. Finally, the court said that claims against the NFL related to the claims against the Broncos, Giants, and Texans should also be heard in federal court.
In July 2023, the Court denied dueling motions for reconsideration of the Court’s initial order. The coaches’ argument for reconsideration rested largely on their argument that Commissioner Roger Goodell would be biased as an arbitrator. While in a footnote the Court expressed some concern about the fairness of the process, it held that as a matter of law it could not prejudge the Commissioner’s actions as arbitrator; a court can 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 opined in my prior article that the NFL would likely choose an outside attorney to serve as arbitrator in the matter.
Finally, on January 4, 2024, the Court denied the coaches’ request to certify an interlocutory appeal on the Court’s two prior orders. The Court found that the required exceptional circumstances were not present, while noting the “Second Circuit’s distaste for delaying the arbitral process through appellate review.”
Will the coaches now file an arbitration?
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 it relate to those three clubs. But it is my understanding based on conversations with persons knowledgeable about the proceedings that the coaches have to date not filed an arbitration in accordance with the NFL’s rules. They likely did not do so because they did not want to be perceived as waiving any arguments against arbitrability. Yet now they seem to have no choice but to pursue a bifurcated action.
Having largely prevailed in its efforts to enforce its arbitration agreements, the NFL may consider now to be the right time to settle the case rather than to begin engaging in 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 since settlement of them would require court approval. Considering the Court’s prior orders though, there is an argument that the class claims are no longer viable. If so, it may well be worth it to the NFL to pay these coaches (and their attorneys) a low seven figure dollar amount to put the case behind them. Nevertheless, there is no guarantee that the coaches – all well paid during their careers – would place pecuniary gain over what they might see as principle.
