The NFL on Thursday suffered its second arbitration-related legal loss this week, with an appeals court ruling it cannot force former Dolphins head coach Brian Flores to arbitrate his claims of racial discrimination because the league’s policy is “unenforceable.”
The U.S. Court of Appeals for the Second Circuit affirmed a 2023 ruling from a federal judge, who determined the NFL could not compel arbitration for Flores’s claim against the league, the Broncos, the Giants, and the Texans.
The 29-page opinion boils down to this: The arbitration clause at issue is “unenforceable.”
The NFL has maintained that Flores, who is Black, 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. Part of the reason the NFL prefers arbitration is because those proceedings would be private, so the league would be protected from potentially damning information coming to light in public court documents released during the discovery phase of the case.
The Second Circuit wasn’t swayed by the fact that Goodell ultimately sought to select an arbitrator, Peter C. Harvey, a partner at law firm Patterson Belknap Webb & Tyler LLP—who 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.
Goodell’s “unilateral designation of an adviser to the NFL represents a further extension of his unilateral power rather than its remedy,” the opinion says.
Flores’s attorneys, Douglas Wigdor, David Gottlieb, and John Elefterakis, issued a statement Thursday, saying, “The significance of the Second Circuit’s decision cannot be overstated.”
“For too long, the NFL has relied on a fundamentally biased and unfair arbitration process—even in cases involving serious claims of discrimination,” the statement says. “This ruling sends a clear message: that practice must end.”
The ruling means that Flores can proceed to trial with the claims, although the NFL does have one more remedy it can try: an appeal to the Supreme Court.
An NFL spokesperson hinted at that outcome, saying in a statement to Front Office Sports: “We respectfully disagree with the panel’s ruling, and will be seeking further review.”
Flores, who is currently defensive coordinator for the Vikings, filed his lawsuit in February 2022 after getting fired from the Dolphins following the 2021 season. The foundation of Flores’s lawsuit was that he was passed up for multiple head coaching jobs and only even received interviews so teams could comply with the NFL’s Rooney Rule. He was later joined in the suit by former Titans defensive coordinator Ray Horton and former Arizona Cardinals head coach Steve Wilks as co-plaintiffs.
The decision comes days after former NFL coach Jon Gruden scored his own arbitration-related victory in a separate legal battle against the league. There, the Nevada Supreme Court ruled the league cannot send the matter into arbitration, which the league has pushed to do. The court did not rule on the allegations themselves—which revolve around claims that the league and Goodell leaked controversial emails to media outlets that were written by Gruden, contained racist, misogynistic, and anti-gay slurs from his time as an ESPN analyst, and led to his resignation as head coach of the Raiders.
“We will be appealing the [Gruden] decision,” an NFL spokesman told FOS Thursday.
