In new dueling filings at the U.S. Court of Appeals for the Second Circuit, the NFL and Minnesota Vikings defensive coordinator Brian Flores debate whether a federal trial judge correctly advanced Flores’ race discrimination and retaliation claims against the Denver Broncos, New York Giants and Houston Texans and related claims against the NFL.
In a Sept. 13 brief, the league invokes its recent victory against former Las Vegas Raiders head coach Jon Gruden at the Supreme Court of Nevada to support its contention that Flores, like Gruden, must resolve disputes through an arbitration process overseen by NFL commissioner Roger Goodell before the coach can turn to federal courts. Although the Gruden case is from another jurisdiction and is not binding precedent at the Second Circuit, the NFL believes it advances league arguments.
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Last year, U.S. District Judge Valerie Caproni rejected the NFL’s assertion that Flores’ claims against the Broncos, Giants and Texans should be dismissed to an arbitration process detailed in the league constitution. Flores claims those organizations gave him “sham interviews” before denying him coaching positions.
As only a job candidate, Flores never signed employment contracts with those teams. While Flores’ employment contracts with the New England Patriots and Pittsburgh Steelers contemplated arbitration, Caproni reasoned that those contracts didn’t govern his matters with the Broncos, Giants and Texans. On the other hand, Caproni dispatched Flores’ claims against his former employer, the Miami Dolphins, to arbitration since his employment contract with the Dolphins contemplated arbitration.
The NFL argues Caproni erred in several ways, including when she concluded that under Massachusetts case precedent, the arbitration clause—as contained in the league constitution and referenced in Flores’ Patriots contract—was “illusory and unenforceable.”
Caproni stressed that the NFL and its teams could unliterally change the clause and other sections of the constitution without notice to Flores, let alone his consent.
But the clause, the NFL insists, is enforceable since it was part of Flores’ agreement with the Patriots, with whom he willingly negotiated a contract. Under that line of reasoning, Flores arguably knew or should have known the constitution could be amended and thus the arbitration clause could change, too. The league points out that in the Gruden case, the Nevada Supreme Court concurred with its position “that a coaching contract’s incorporation of subsequent amendments to the NFL Constitution does not render the Constitution’s arbitration provisions illusory.”
Goodell serving as the default arbitrator in a dispute where the NFL is accused of misconduct also surfaces in the NFL’s filing. The league rejects Flores’ argument that Goodell as arbitrator would be unconscionable and violate the effective-vindication doctrine, which holds that an arbitration clause can’t be enforced if it prevents a party from being able to vindicate their federal statutory rights.
The league maintains that “Mr. Flores is a veteran coach” who, over an extensive career on the sidelines, has entered into multiple employment agreements with different teams, and his contracts contained the arbitration provision. As the NFL sees it, Flores shouldn’t be able to argue “unfair surprise” since he accepted the clause in multiple contracts. The Gruden case is invoked by the league here, too, to note the Supreme Court of Nevada rejected “a former NFL head coach’s similar unconscionability defense to arbitration under the NFL Constitution.”
But in their Sept. 13 brief, attorneys for Flores insist these NFL arguments are unpersuasive.
Flores’ attorneys attempt to tackle the Gruden ruling by challenging how it applies to their client’s case. They also contend a dissenting opinion by Nevada Justice Linda Marie Bell “is more persuasive” as she wrote, “Goodell acting as arbitrator is outrageous.”
As Flores’ attorneys tell it, Goodell as arbitrator would deprive their client of his legal rights. “To say Mr. Goodell is biased would be an understatement,” they write, since he “enjoys his job as NFL Commissioner … at the leisure of NFL team owners.”
Flores’ attorneys also stress that Massachusetts law governs his Patriots contract, and, as Caproni ruled, it doesn’t allow enforcement of an arbitration clause when “it could be unilaterally modified without notice.”
The case, which began in 2022, could remain in court for years as the Second Circuit weighs the arguments and potentially sends the case back to Caproni.
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