As Brian Flores’ employment discrimination case enters its 15th month, a crucial legal question has emerged: Should the NFL’s constitution—a contract between the league, teams and owners, but not coaches—be binding on Flores?
That question is central in recent petitions by Flores and the NFL to Judge Valerie Caproni, who last month issued a split decision that neither side finds acceptable.
Caproni ruled that Flores’ claims against his former employer, the Miami Dolphins, as well as claims brought by co-plaintiffs Steve Wilks and Ray Horton against their former employers (the Arizona Cardinals and Tennessee Titans, respectively), must be resolved via an arbitration process overseen by NFL commissioner Roger Goodell.
But Caproni permitted Flores to continue to sue the New York Giants, Denver Broncos and Houston Texans. Flores interviewed but didn’t sign employment contracts with those teams.
Although Flores’ lawsuit raises profound questions about civil rights and race in the NFL, the case’s advancement will hinge on contractual interpretation—namely, how the legal system ought to interpret two provisions in NFL coaches’ contracts that attempt to deny coaches the opportunity to sue.
The first is a binding arbitration clause. The coach agrees that any workplace dispute with his team—including allegations of discrimination—must be referred to the commissioner for arbitration, which is conducted in private. The commissioner’s decision must then be accepted as final, conclusive and unappealable. Only after the commissioner (acting as an arbitrator) issues a decision can the losing party sue. But under federal law, courts are obligated to review arbitrator decisions with substantial deference. A lawsuit would thus face long odds.
Second is an NFL rules clause. The coach acknowledges reading, understanding and accepting a handful of NFL documents, most relevantly the league’s constitution. Section 8.3 of the constitution says the commissioner enjoys “full, complete and final jurisdiction and authority to arbitrate … any dispute between any … coach … and any member club or clubs.”
The reference to “any” team arguably suggests that Flores’ allegations of discrimination against the three teams that didn’t hire him are, like his claims against the Dolphins, subject to arbitration. Flores interviewed with those teams while he was employed by the New England Patriots as a defensive coach (2008 to 2018) or would soon be employed by Dolphins as head coach (2019 to 2022) or the Pittsburgh Steelers as a defensive coach (2022).
Judge Caproni had a different reading. Drawing from Massachusetts case law (which governs Flores’ Patriots contracts), she reasoned that the NFL constitution’s arbitration clause is unenforceable since the party seeking to enforce it (the NFL) can unilaterally change it. Flores, as a coach, is not a party to the constitution and has no right to contest any changes.
Caproni also surmised that the rules clause in Flores’ contract with the Dolphins could not retroactively apply to his interview with the Broncos, who met with Flores before he became the Dolphins coach. Further, Caproni deemed the arbitration provision in the Steelers contract unenforceable since Goodell didn’t sign the contract.
Former U.S. Attorney General Loretta Lynch, retained by the NFL for this case, contends that Caproni is mistaken about Massachusetts law and has overstated the legal significance of Goodell’s signature.
On March 15, Lynch wrote that while the NFL “regrets” not providing a “Commissioner-signed version” of Flores’ contract with the Steelers earlier in the litigation, there is “no dispute” Goodell approved it. She added that even if Goodell had not approved the contract, it became a “valid and binding employment contract” once Flores started to perform his job with the Steelers, who paid Flores for his work.
Douglas Wigdor, an attorney for Flores, challenged Lynch in a filing on April 11. He argued that Goodell’s signature was crucial, since the contract says it would “become valid and binding upon each party only when and if it shall be approved by the Commissioner of the NFL.” Wigdor also insisted that even if Goodell’s signature wasn’t essential to form the contract, Flores shouldn’t be bound by an arbitration process overseen by someone who didn’t sign the contract.
Wigdor raised other arguments regarding the Steelers contract, which was signed after Flores sued the NFL and after he interviewed with the Giants and Texans. Wigdor says the Steelers agreed, in writing, that “[t]his employment agreement is not intended to infringe in any way on the lawsuit filed by Coach Flores in February 2022 … the Club and Coach Flores do not intend for anything in this employment agreement to infringe upon Coach Flores’ right to prosecute the pending lawsuit.”
Wigdor also argued that, just as the Dolphins contract did not apply retroactively to Flores’ interview with the Broncos, the Steelers contract should not retroactively apply to Flores’ interviews with the Giants and Texans. As explained in an earlier Sportico story, Wigdor separately maintains that Caproni wrongly sent Flores’ claims against the Dolphins (and Wliks’ and Horton’s claims against the Cardinals and Titans, respectively) to arbitration.
If you sense there are a lot of moving pieces that involve contracts, dates and even signatures, you’re right. They’ll take time to resolve, too.
Unless Flores and the NFL settle, they could remain in court for years.
Flores wants his case to be certified as a class action on behalf of “all black head coach, offensive and defensive coordinators and quarterbacks coaches, as well as general managers, and black candidates for those positions.” Class certification is a separate process that will require substantial briefing by both sides. Also, either side would likely appeal a defeat at the trial court level to the Second Circuit, pushing the timeline back well into the 2020s.
Although an ongoing suit against the NFL might seem problematic for Flores as he pursues NFL coaching jobs, the one-time protégé of Bill Belichick remains sought after. Still only 42, Flores was recently hired by the Minnesota Vikings as defensive coordinator.