By Christopher R. Deubert, Senior Writer
The NFL recently filed a petition with the Supreme Court seeking review of an August 2025 decision by the Second Circuit Court of Appeals that affirmed a lower court’s ruling that certain of the employment discrimination claims brought by NFL coach Brian Flores should not be subject to arbitration before NFL Commissioner Roger Goodell. But the Second Circuit went even further, holding 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 (FAA). The league is asking the Supreme Court to now reinstate courts’ long-standing deference to sports leagues’ dispute resolution processes.
The Flores case
In February 2022, Flores, the current Minnesota Vikings defensive coordinator, filed a racial discrimination lawsuit after he was terminated as the head coach of the Miami Dolphins and was not hired for the same position with the New York Giants, Denver Broncos, or Houston Texans. Flores seeks to represent a class of Black coaches and executives he contends were similarly discriminated against and has been joined in his action 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.
In March 2023, the Southern District of New York issued a decision largely granting the NFL’s motion to compel the action to arbitration. The court determined that the coaches’ claims related to their respective employment with the Dolphins, Cardinals, and Titans must be arbitrated pursuant to the arbitration provisions in the coaches’ contracts with those clubs. The court also ruled that the arbitration agreements cover the coaches’ related claims against the NFL.
The court rejected Flores’ claims that the arbitration provisions in his contract were unenforceable because they provided Goodell the authority to hear the dispute pursuant to the NFL Constitution. 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.
On the other hand, the court ruled that the arbitration provisions do not cover the claims against the Broncos, Giants, and Texans and 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 generally rejected the NFL’s arbitration process in its entirety as applied to Flores. Specifically, while recognizing that courts generally defer to arbitration, because Flores had to submit his claims against the NFL to Goodell while he was the NFL’s principal executive, the NFL’s arbitration 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 FAA.
Commissioner authority
The Second Circuit’s decision seems at odds with a century of jurisprudence in which courts were deferential to the Commissioners’ role as guardians of their leagues. The genesis of the modern-day Commissioner and the role’s authority was MLB’s appointment of Judge Kennesaw Mountain Landis as the sport’s first Commissioner in 1920 after the “Black Sox” scandal in which several members of the Chicago White Sox were accused of intentionally losing the 1919 World Series in exchange for bribes from mobsters. Landis banned eight players for life.
For many years thereafter, the broad scope of a league’s Commissioner authority has been challenged on numerous occasions across the NFL, MLB, and more recently the NBA. The leagues have historically prevailed, with the courts enforcing the terms of arbitration provisions designating the Commissioner as the default adjudicator of a wide range of intra-league disputes and also respecting the unique knowledge of Commissioners in handling such 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 Goodell, and after conflicting decisions along the way, the full seven-judge panel of the Nevada Supreme Court ruled by a 5-2 majority that requiring Gruden to arbitrate his claims before Goodell would be unconscionable because the process “would allow Goodell, as Commissioner, to arbitrate disputes about his own conduct.”
SCOTUS to the rescue?
In a prior article, I 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 many states and courts impose on arbitration processes today.
Nevertheless, the NFL has instead chosen to fight on in defense of 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 NHL all have similar arbitration provisions and are all based in New York, where the Second Circuit’s decision controls.
At the same time, 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 the Supreme Court’s Rules, when considering whether to grant a petition, the Court is primarily concerned with whether the decision being appealed from raises important questions of federal law or presents a conflict among the Circuit Courts of Appeal. The NFL argues that the Second Circuit’s decision is in conflict 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 prior decision in a case involving Tom Brady upholding Commissioner authority in player-related matters.
The NFL is on slightly better ground arguing that the Second Circuit decision conflicts with a 1978 Seventh Circuit decision affirming then-MLB Commissioner Bowie Kuhn’s authority 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.
Consequently, 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. In the NFL’s eyes, 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.”
While the NFL’s petition may seem too industry-specific to warrant Supreme Court review, 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. The calendar perhaps seems ripe for another review of NFL practices by the highest court.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP
