Minnesota Vikings defensive coordinator Brian Flores knows a thing or two about instant replay.
He’s now asking a judge who called a flag on his employment discrimination case against his former employer, the Miami Dolphins, to reconsider and reverse her March 1 ruling.
Judge Valerie Caproni of the Southern District of New York dispatched Flores’ claims against the Dolphins, as well as well as claims brought by co-plaintiffs Steve Wilks and Ray Horton against their former employers (the Arizona Cardinals and Tennessee Titans, respectively), to an arbitration process overseen by NFL commissioner Roger Goodell.
Caproni agreed with the NFL that a coach who agrees to mandatory arbitration in their employment contract and who later has an employment dispute must turn to arbitration—not a court. She rejected Flores’ contention that Goodell is too biased to serve as arbitrator, even when, as Flores stressed, Goodell and his league are central to Flores’ allegations regarding the treatment of black coaches. Caproni emphasized that the U.S. Court of Appeals for the Second Circuit rejected an analogous argument brought by Tom Brady in the Deflategate case since Brady (through the NFLPA and the CBA) contractually accepted a dispute resolution process run by Goodell.
Brady’s case isn’t so comparable, Douglas Wigdor and other attorneys for Flores argue in their March 14 brief. They stress that Brady was a player and a member of a union, whereas Flores is a coach and not in a union. NFL coaches have an advocacy group, the NFL Coaches Association, but it is not a union that engages in collective bargaining with the NFL.
“There is no collectively bargained arbitration process [for coaches] and the [non-bargained] process employed lacks any concept of neutrality and fairness,” the brief asserted. Goodell is depicted as overseeing a rigged framework where he “has already said the claims are without merit, has no disclosure obligations, has no obligation to permit discovery, and is not subject to any other procedural safeguards.”
The brief also emphasizes that, unlike in player-league collective bargaining, arbitration clauses are presented to coaches as “take it or leave it.” Coaches are not able to modify them. Making matters worse, the brief insists, “there are literally only 32 NFL Head Coach positions available and they are all held by a single monopolistic organization.”
Flores’ attorneys also question why Caproni would treat arbitration language in their client’s contract as so determinative when a judge in Nevada denied the NFL’s motion to dismiss Jon Gruden’s lawsuit despite similar arbitration language.
They also warn that if Flores’ case is relegated to arbitration, employers in other industries could become incentivized to adopt unfair arbitration terms in dealings with employees.
“The Court’s Order,” the brief argues, “gives employers carte blanche to include terms, no matter how unfair or unconscionable, with assurance that those terms will be enforced because of the extreme expansion of the phrase ‘the parties to an arbitration can ask for no more impartiality than inheres in the method they have chosen.’ Employers across the country, in reliance on the Order, could now appoint their own CEOs or another clearly biased person as arbitrator.”
Even if Flores is unable to convince Caproni to reconsider his claims against the Dolphins, she allowed his claims against the New York Giants, Denver Broncos and Houston Texans to continue. Caproni’s basic reason: Flores didn’t enter into an employment contract with those teams, so there is no governing arbitration clause.