Pittsburgh Steelers assistant coach Brian Flores says if Roger Goodell can arbitrate his employment discrimination claims against NFL teams and the league itself, it would make a mockery of justice, with adverse impacts on workers across the country.
The argument, raised in a 31-page memorandum filed by Flores’ attorneys on Wednesday in the Southern District of New York, is intended to sway Judge Valerie Caproni to deny the NFL’s motion to compel arbitration. The league contends that claims brought by Flores, and fellow coaches Steve Wilks and Ray Horton, are preempted by language in employment contracts and the NFL constitution that say the commissioner may arbitrate football-oriented disputes, and that the commissioner determines if a dispute is football-oriented.
The memorandum asserts that Goodell can’t logically arbitrate legal claims brought against the league. “He is fully professionally and financially beholden to the NFL and its teams,” the memorandum charges. “It would be completely contrary to the NFL’s best interest—both financially, reputationally and otherwise—for there to be any finding whatsoever that the NFL or its teams engage in systemic discrimination against Black coaches.”
Goodell’s role as a prospective witness is also highlighted as problematic, since he will be “asked to turn over documents from his corporate and personal files” and called to testify on NFL hiring practices. As Flores’ camp sees it, Goodell overseeing the process would constitute a “kangaroo court.”
To boost the argument that the chief executive of a league shouldn’t be the arbitrator in claims asserted against the league, Flores’ attorneys note that a Nevada judge, Nancy Allf, recently denied the NFL’s motion to compel arbitration in Jon Gruden’s lawsuit against the league. Flores hopes that Judge Caproni will, like Judge Allf, object to the commissioner having exclusive power to resolve employee disputes.
The memorandum also stresses the league isn’t a party to employment contracts between coaches and teams. This is important since, unlike players, coaches aren’t unionized and aren’t governed by a CBA negotiated with the league. Generally speaking, parties outside a contract can’t enforce that contract. However, pro leagues have long claimed authority to punish coaches and executives given language in employment contracts authorizing such measures.
Flores’ attorneys also suggest that the NFL’s constitution undermines its ability to compel arbitration. They note the constitution contemplates arbitration for claims made by coaches against teams, team employers or other coaches, but omits—perhaps intentionally—claims brought against the NFL. “The NFL,” the memorandum asserts, “obviously did not see itself as an entity against whom claims would be arbitrated before the Commissioner.”
The memorandum also argues that Flores’ claims against teams that didn’t hire him—the Denver Broncos, New York Giants and Houston Texans—aren’t subject to mandatory arbitration clauses in employment contracts since they didn’t employ him. To illustrate, the memorandum references that while Flores interviewed with the Broncos, he was an assistant coach with the New England Patriots. His Patriots employment contract contained a dispute resolution provision, but the provision was limited to his Patriots employment and did not govern his prospective employment actions with other teams.
While pro sports leagues are uniquely configured and distinct from most types of employers, Flores attorneys’ maintain the case could “create a new and unprecedented rule that arbitration should be approved no matter how biased and unfair the process.” They warn that such an outcome would “embolden employers to create manifestly unfair arbitrations with assurance that they will be approved by the courts.”
In prior filings, the NFL has insisted that those who coach in the NFL are on clear notice the commissioner has the final say on disputes and that disputes can, at the commissioner’s discretion, be sent to arbitration. The NFL, like other businesses, prefers arbitration as a dispute resolution since, unlike litigation, it is conducted in private, which can shield potentially unflattering testimony, emails and other exchanges from public view.
Flores, who was head coach of the Miami Dolphins from 2019 to 2021, hopes his case is eventually certified as a class action. It would 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. Flores’ claim that Dolphins owner Stephen Ross offered to pay him $100,000 for each lost game was not disproven by a recent NFL investigation, though the league concluded any such offer was not meant to be taken seriously.
Judge Caproni will weigh the competing arguments from briefs and potentially schedule a hearing in which both sides can offer oral arguments. If Flores convinces the judge to keep the case on the docket, the litigation could eventually threaten the NFL with pretrial discovery. The league would then need to provide sworn testimony and turn over sensitive evidence. The risk of discovery might, in turn, propel the league to make appealing settlement offers to Flores.