The first hearing for Brian Flores’ race discrimination lawsuit was held at New York City’s Thurgood Marshall United States Courthouse on Monday. While little new information emerged, the hearing made one point clear: The case could be tied up in a court for a long time.
Appearing before Judge Valerie Caproni, Flores’ attorney Douglas Wigdor insisted that she reject the NFL’s plan to petition the case be dismissed and sent to arbitration. In arbitration, the legal process would become private, confidential and beyond the reach of the media and public.
As reported by ABC News, Wigdor insisted that arbitration would be inherently unjust because NFL commissioner Roger Goodell—whom Flores’ complaint derides as “obviously completely beholden to the team owners who pay him this enormous compensation” and “not independent, unbiased or impartial”— would have the opportunity to serve as the arbitrator.
Wigdor also stressed that part of the case brought by Flores, former Arizona Cardinals head coach Steve Wilks and longtime NFL assistant coach Ray Horton concerns alleged racism in teams not hiring black candidates. This is a potentially key distinction, since even if an employment contract dictates that a fired coach must arbitrate claims against his former team, an unhired coach isn’t bound by an employment contract. “The failure to hire,” Wigdor maintained, “is not subject to arbitration.”
Advocating for the NFL, former U.S. Attorney General Loretta Lynch described the case as straightforward and clear cut. “All the matters raised by the plaintiffs,” Lynch offered, “are covered by the arbitration agreement.” She emphasized this is a “contracts” case governed by well-established contract law and arbitration law principles.
These legal arguments are not new. As explained by Sportico, they were discussed in a recent scheduling briefing submitted by both sides’ attorneys.
Caproni asked the attorneys about their willingness to engage in settlement talks. Lynch noted the league invited Flores, Wliks and Horton and their attorneys for discussions about addressing racial concerns, but they declined.
Wigdor explained that while his side is interested in “talking about making the NFL a place that fairly represents blacks,” the proposed conditions were unsatisfactory. A judge wouldn’t have been present and Goodell, who might later arbitrate the matter, would be involved.
If the parties were expecting the case to be resolved before the 2022 NFL season begins, that expectation was all but extinguished Monday.
Caproni set a series of pretrial dates: The NFL must file its motion to compel arbitration by June 21, the coaches’ response is due by July 22, and the NFL’s reply to coaches’ response is due by Aug. 5. She noted the NFL will also have an opportunity to later file a motion to dismiss. The judge added that attorneys for the two sides can meet to discuss pretrial discovery but, in the meantime, discovery is put on hold.
At any point, the two sides could reach a tentative settlement. But it doesn’t appear they are interested in holding settlement talks, let alone trading settlement offers.
More likely, the case will inch along into the fall. If a trial were to occur, it wouldn’t happen for many months, if not several years. Flores has requested that his case be certified as a class action on behalf of all black general managers, head coaches, coordinators, quarterback coaches and black candidates who applied for those jobs during the applicable statute of limitations period. Class certification would involve its own review process, overseen by Caproni.
Flores and Wilks will both be assistant coaches in 2022, Flores with the Pittsburgh Steelers and Wilks with the Carolina Panthers.
Also on Monday, the NFL announced that a 60-day review led by former U.S. Attorney and SEC Chair Mary Jo White and a team of lawyers from Debevoise and Plimpton could not substantiate former Cleveland Browns head coach Hue Jackson’s suggestion in February he was offered compensation by Browns ownership to lose. Jackson, who later clarified that he was not actually offered money, coached the Browns to a 3-36 record in the mid-2010s. The NFL says while he initially pledged to meet with investigators, he ultimately declined.
Flores claims that Dolphins owner Stephen Ross offered him $100K for each loss in 2019 to help secure a higher draft pick. Ross firmly denies the allegation. Bribes to lose games could be considered a crime under the Sports Bribery Act of 1964, which has not been used to prosecute figures in pro leagues but has been used to prosecute boxing, horse racing and college basketball point-shaving cases.
Jackson has not joined Flores’ lawsuit.
(This article has been updated in the headline and in the final three paragraphs with information from the NFL about its review of statements by former Browns coach Hue Jackson.)