Part of the motivation for Brian Flores’ high-profile civil rights lawsuit is to shed light on the opaque hiring and firing practices in the NFL, but there’s a chance the suit could end in secret arbitration.
This possibility was suggested in a letter sent by Flores’ attorney, Douglas Wigdor, to NFL commissioner Roger Goodell on Wednesday. The letter described what it portrays as efforts by Miami Dolphins’ attorneys to move Flores’ claims against the team into arbitration.
Although Flores’ employment contract isn’t publicly available, the letter suggests the contract contains an arbitration provision.
Many employment contracts contain such provisions. They typically compel disputes arising from an employment relationship to be resolved by a mediator or an arbitrator, or both, with a mediator’s recommendation being non-binding while an arbitrator’s award is binding. While arbitration awards can be challenged in federal court, judges are obligated to review those awards with high deference. Of significance here, arbitration is a confidential proceeding that, unlike litigation, is shielded from public observation.
In a statement, Flores said Goodell has a “choice to make.” The purported choice is whether to “allow this case and future race discrimination claims to play out in a transparent and public legal process, or continue along the same unacceptable path?”
It’s not certain that Goodell possesses this choice. The NFL is not a party to the employment contract between Flores and the Dolphins. Coaches, executives and other staff are employees of individual teams, not the league. Whether an employment-based arbitration clause is enforceable is a matter between Flores, the Dolphins and, potentially, a judge.
League governing documents indicate Goodell is the appropriate arbitrator for coach-team disputes. The commissioner, the NFL constitution explains, enjoys “full, complete, and final jurisdiction and authority to arbitrate . . . any dispute between or among players, coaches, and/or other employees of any member club or clubs of the League.” Goodell, under this clause, could maintain that he should oversee the resolution of Flores’ dispute and assess whether it reveals “conduct detrimental to the best interests of the League.”
But Flores would argue the league cannot credibly arbitrate a dispute in which it is a defendant and is accused of racism. Flores is also not a party to the league constitution, which is a contract between teams, owners and the league. He could maintain the league’s constitution cannot govern his employment-based litigation, especially since he is no longer a Dolphins employee.
Flores’ lawsuit names the Dolphins, as well as the New York Giants, Denver Broncos and the league, as defendants. He claims that NFL teams unlawfully discriminate against black coaches in three contexts: hiring, employment and firing.
Flores’ claims against the Dolphins are likely the most persuasive since the Dolphins were his employer. Flores can personally attest to specific allegations of workplace misconduct, such as his claim that Dolphins owner Stephen Ross offered to bribe him to lose games and that, after Flores refused, Ross lost faith in him (Ross categorically denies offering bribes).
In contrast, Flores had no contractual relationship with the Giants, Broncos or the league itself. Much of what he contends about racism by other NFL employers would require the sworn testimony of other black coaches. To date, no other coaches have joined his lawsuit. It’s possible that Flores, on his own, would lack standing to raise employment-based claims against businesses with whom he had no relationship.
Flores, who recently joined the Pittsburgh Steelers as senior defensive assistant and linebackers coach, has petitioned for his case to be certified as a class action. Flores seeks to represent all black general managers, head coaches, coordinators, quarterback coaches and black candidates who applied for those jobs during the applicable statute of limitations period. Whether the case is certified would not be determined for months, if not years, through a separate proceeding under Rule 23 of the Federal Rules of Civil Procedure.
Flores personally attests to alleged racism by the Giants and Broncos in providing him what he dismissed as “sham interviews.” Flores contends the Giants had already decided on which candidate to hire (Brian Daboll) and merely interviewed him to check off a box under the Rooney Rule, an NFL policy that requires teams to interview minority candidates.
Expect the Giants to counter by arguing they possessed “legitimate, nondiscriminatory reasons.” One such reason: Daboll hadn’t yet been hired. The Giants say they didn’t decide to hire Daboll until a day after they met with Flores for a second time. Team officials could assert they were conducting due diligence on Flores, a credible alternative candidate with three years of head coaching experience and a track record of defeating good teams. The Giants, like other teams, were also aware that even if a candidate pledges to join, he could back out before a contract is signed, as happened with Josh McDaniels and the Indianapolis Colts. Further, by the time of Flores’ second interview, the Giants had already interviewed two other black candidates, Leslie Frazier and Patrick Graham. That indicates they didn’t need to interview Flores a second time to comply with the Rooney Rule and that his interview was not a “sham.”
Meanwhile, the NFL could note that while the Rooney Rule has fallen short on results, it was implemented at the urging of civil rights groups. Similarly, the league can assert the rule is designed with positive intentions—namely, to ensure that minority candidates get on the radar screen of hiring teams.
Flores can challenge efforts by Dolphins’ attorneys to have his claims dismissed and sent to arbitration. He could argue his Dolphins-specific claims are emblematic of league-wide racism and must be heard by a court. From that lens, an arbitration clause governing Flores’ claims against the Dolphins would be ill-suited for review by an arbitrator, whose purview would be limited to Flores’ employment relationship with Miami.
According to court records, Flores will file an amended complaint by April 8. Expect the amended complaint to address the complicating role of arbitration. Judge Valerie Caproni will hold an initial pretrial conference on April 29. The hearing will shed light on the trajectory of the litigation and important deadlines.
(This article has been updated in the 11th paragraph to clarify Flores’ potential lack of standing.)
