Former Miami Dolphins 🐬 head coach Brian Flores is a cautionary tale. In February 2022, Flores filed what was, at the time, a bombshell race discrimination lawsuit against the NFL and some of its member teams.
Since filing his lawsuit, however, Flores has experienced false start penalty after false start penalty. In other words, like the current offense of the New England Patriots, the lawsuit has gone nowhere fast.
Flores’ failures are due, in large part, to his attempts to avoid arbitration, arguing that Commissioner Roger Goodell should not serve as the arbitrator due to bias. However, the courts consistently rejected Flores’ objections, and the issue is now before the U.S. Court of Appeals for the Second Circuit.
Complicating matters, Goodell has appointed former New Jersey Attorney General Peter C. Harvey as arbitrator, making Flores’ original concerns about Goodell potentially moot. In March 2023, a federal judge largely sided with the NFL, compelling arbitration and rejecting Flores’ claim that arbitration under Goodell would be unfair. The judge held that while bias could be challenged after arbitration, it could not be assumed before the process.
Although the NFL is appealing aspects of the decision that did not fully favor its motion to compel arbitration, Flores does not have the right to appeal at this stage.
Commissioner Goodell’s move to appoint Harvey, a figure with a reputation for impartiality, weakens Flores’ objections. Courts have historically shown deference to league commissioners in such matters, as seen in the Second Circuit’s support of Goodell during the Tom Brady “Deflategate” scandal. A ruling from the Second Circuit could come as early as 2025, but Flores will likely still face arbitration, marking little progress in his quest for justice after several years of legal battles.
A larger point here is that while employment-related arbitration provisions have a bad reputation, they are largely enforceable, sans claims under the Ending Forced Arbitration Act.
Again, Flores is a cautionary tale. Trying to avoid an otherwise valid, and enforceable arbitration provision could end an employment claim before it ever gets started.