By Christopher R. Deubert, Senior Writer
During the week of March 24, 2025, the United States Court of Appeals for the Second Circuit will hear oral argument on the NFL’s position that the entirety of the racial discrimination lawsuit filed by coach Brian Flores should be compelled to arbitration. The Second Circuit previously rejected Flores’ request to reconsider a lower court’s decision to send a part of his case to an arbitration, which is now underway. Consequently, in the three years since it was initially filed, Flores’ case has made no meaningful progress, and has now been hurt by comments from multiple players.
Flores Kicks Off
Flores filed his lawsuit in February 2022 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.
Flores has had a successful stint as defensive coordinator for the Minnesota Vikings since 2023 and interviewed (unsuccessfully) for the head coaching positions with the New York Jets, Chicago Bears and Jacksonville Jaguars this offseason.
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 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. She also ruled that the arbitration agreements cover the coaches’ claims against the NFL.
On the other hand, the court ruled that the arbitration provisions do not cover the claims against the Broncos, Giants, and Texans because the coaches had no contracts with them.
The court rejected Flores’ claims that the arbitration provisions in his contract were unenforceable because they provided NFL Commissioner Roger 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.
In July 2023, the Court denied dueling motions for reconsideration of the Court’s initial order.
The Case Runs an Option Route
The NFL appealed 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 both the district court and the Second Circuit denied his request to consider one.
The result was a bifurcation of proceedings.
In a September 24, 2024 letter to the Second Circuit, the NFL informed the court that Goodell had designated Peter Harvey, the former Attorney General of New Jersey, as the arbitrator for the portion of the case compelled to arbitration.
The NFL’s decision to appoint Harvey as the arbitrator is consistent with the NFL’s past practice. To avoid allegations of bias from undermining the enforceability of the arbitration proceedings, Goodell has regularly appointed a neutral or near-neutral arbitrator to hear high-profile disputes. Indeed, Goodell had previously tagged Harvey to hear the NFL’s appeal of an initial disciplinary decision involving Cleveland Browns quarterback DeShaun Watson before that case settled.
The NFL’s arbitration process does not sit well with a dozen law professors with expertise in arbitration law, who filed a brief urging the Second Circuit 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. Nevertheless, courts have demonstrated a long-standing deference to the authority of Commissioners to resolve disputes in their leagues.
If the NFL prevails at the Second Circuit, the claims against the Broncos, Giants and Texans will be moved to arbitration. If it loses, then those claims will be remanded to the district court for further proceedings.
New Players Emerge
Lost in the legal wrangling over the appropriate forum for adjudicating the case is one of the substantive questions to be answered – was Flores’ race a motivating factor in his termination by the Dolphins?
Some potential witnesses have seemingly lined up against Flores’ case. Flores coached the Dolphins from 2019 through 2022. His most important draft pick was quarterback Tua Tagovailoa, with the fifth overall pick in the 2020 NFL Draft. Nevertheless, after Flores’ departure, Tagovailoa described him as a “terrible person” who repeatedly told him that he “suck[ed].” Consequently, it seems likely that Tagovailoa believes Flores’ termination was related to his performance, not his race.
Similarly, Ryan Fitzpatrick, a journeyman quarterback who played for the Dolphins in 2019 and 2020, said Flores had become a “dictator” by the end of his tenure with the club and that he “broke” Tagovailoa. Fitzpatrick thus may also be a helpful witness for the Dolphins’ version of events.
Should the NFL lose at the Second Circuit, it may desire to try to resolve the cases rather than have to litigate such sensitive issues in a public court. If it wins, it may feel confident in asserting its defenses in the private arbitration. Either way, Flores has spent three years fighting procedural battles, only to see his claims weaken in the meantime.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP
