Supreme Court Won’t Tackle Arbitration Issue in Flores Case

The U.S. Supreme Court won’t swoop in to save the NFL from facing Brian Flores’s racial discrimination lawsuit in federal court.

In January, the league petitioned the Supreme Court to hear its appeal of a ruling that allowed parts of Flores’s case to move forward in open court. On Tuesday, the nation’s high court declined to intervene in the matter. 

“We respect the Supreme Court’s decision not to grant review,” an NFL spokesperson said in a statement to Front Office Sports. “Regardless of the forum, we are fully prepared to defend ourselves as this matter proceeds.”

The docket notes that Justice Brett Kavanaugh “would grant the petition,” which is notable as it shows his position was to hear the case—although it isn’t uncommon for any given justice to disagree with the overall decision. At least four of the nine justices must agree to grant a petition for the court to hear a case.

Tulane sports law professor Gabe Feldman tells FOS the Supreme Court’s decision not to hear the case is “unsurprising” because it “only grants a small fraction” of petitions.

“This is not a ruling on the merits of the underlying lawsuit or an endorsement of the lower court’s reasoning, but it does require that the core of the case proceed in federal court, rather than in a private arbitration process,” Feldman says.

Flores, who is Black, sued the NFL, the Dolphins, Giants, and Broncos in 2022, after the Dolphins fired him as their head coach following the 2021 season. The suit alleges racial discrimination in the interview and hiring process for coaches. The now-Vikings defensive coordinator claims he was passed up for multiple head coaching jobs after he was fired, and he only received interviews so teams could comply with the NFL’s Rooney Rule. Former Titans defensive coordinator Ray Horton and ex-Cardinals head coach Steve Wilks later joined Flores as co-plaintiffs, and those two teams—along with the Texans—were added as defendants. 

The NFL has been fighting to keep Flores’s case in league-controlled arbitration. In October, the U.S. Court of Appeals for the Second Circuit said it would not reconsider its August opinion that most of Flores’s case could proceed to trial.

The league has maintained that Flores is beholden to a clause in the NFL constitution requiring that all disputes be arbitrated. Under the clause, NFL commissioner Roger Goodell has the ability to appoint himself or choose another arbitrator. The Second Circuit wasn’t swayed by Goodell’s desire to select Peter C. Harvey as the case’s arbitrator. A partner at law firm Patterson Belknap Webb & Tyler LLP, Harvey is on the league’s diversity advisory committee and has been brought in to help with past NFL controversies, including the 2022 Deshaun Watson sexual misconduct scandal.

A representative for Flores did not immediately respond to a request for comment, although his attorneys told NBC Sports, “We are pleased that the Supreme Court declined to accept the NFL’s appeal. The NFL must now accept that its commissioner cannot be the arbitrator over discrimination claims against the league and its teams. We look forward to litigating these claims in court.”

For now, some of Flores’s claims are staying in arbitration. In 2023, a judge ruled that his claims against the Dolphins could stay in arbitration because unlike the other teams, Miami employed Flores under a contract detailing arbitration proceedings.

The Supreme Court denial comes less than a week after Flores subpoenaed most of the NFL teams for information about their hiring practices. In addition to the six teams that are defendants, Flores is seeking information from 25 other teams—meaning his current employer, the Vikings, are likely the only franchise not roped into the lawsuit.

Procedural steps remain before a trial date can be set.

Feldman tells FOS it’s still possible the case does not make it to trial “because of a possible settlement or summary judgment,” the latter of which refers to when a judge rules on a matter after determining there is no real dispute over the material facts and one side stands out as the winner under the law.

“But the next steps will play out in public,” he says.

What About Jon Gruden?

This is not the only current lawsuit in which the NFL is trying to keep matters out of the courts and into arbitration. Jon Gruden separately sued the NFL and Goodell in 2021, alleging they were behind the leak of controversial emails to media outlets that led to his resignation as head coach of the Raiders. The Nevada Supreme Court ruled in August that the league could not send the matter into arbitration.

The NFL has not appealed that ruling to the Supreme court. A trial in the Gruden case is currently scheduled to begin in May 2027.

Both cases show how long litigation can last. The recent decisions in both the Flores and Gruden lawsuits have nothing to do with the merits of the arguments from either side; they simply relate to whether the cases should continue in court or be sent to private arbitration.