Longtime NFL coach and current Minnesota Vikings defensive coordinator Brian Flores is in the midst of a contentious lawsuit against the National Football League, the Miami Dolphins, and several teams that did not hire him. This lawsuit may have major implications for how arbitration agreements are handled within the league — and possibly elsewhere.
Flores was a long-serving member of Bill Belichick’s coaching staff with the New England Patriots before being hired as the head coach of the Miami Dolphins in 2019. Flores was fired by the Dolphins at the end of the 2021 season, and in March 2022, he filed a lawsuit against the NFL, the Miami Dolphins, the Denver Broncos, the Houston Texans, and the New York Giants, claiming the NFL’s hiring and retention process is biased against minorities. Specifically, Flores claims he was fired by Miami, despite posting a very respectable 24-25 record in three seasons with the Dolphins, because of his race. He further alleges that he was passed over for head coaching jobs in Denver and New York for discriminatory reasons, and that he was not even considered for an opening with the Texans as retaliation for filing this lawsuit.
According to Flores, the NFL’s “Rooney Rule,” which requires teams looking to hire a head coach to interview at least one minority candidate, is nothing more than a “cruel sham,” where African American candidates are “interviewed for positions that the team has already filled” and where “Black coaches [are] treated more harshly vis-à-vis employment decisions” than their white counterparts.
From a lawyer’s perspective, what is at least as interesting as the allegations themselves is that this matter is being litigated in public at all. NFL employment contracts require legal disputes between teams and their employees to be adjudicated in arbitration rather than court. Arbitration provisions, especially in the employment context, are somewhat controversial. Some argue that arbitration provisions empower organizations to sweep bad behavior under the rug, particularly claims related to discrimination or sexual harassment against historically underrepresented and mistreated groups.
In recent years, Congress has created exceptions allowing disputes to be litigated in court that otherwise would have been arbitrated. Specifically, in the wake of the Me Too movement, Congress passed legislation invalidating pre-dispute arbitration clauses that preclude parties from filing sexual assault or sexual harassment suits in court.
While the district judge ruled that Flores’ claims against the Dolphins must be litigated in arbitration, his claims against other teams can be pursued in federal court. The specific circumstances of this case make it a perfect storm for the NFL, enabling Flores’ claims to be pursued in federal court for all the world to see. Based on a district court’s ruling back in March of this year, because Flores was employed by the Patriots when he applied for the Denver head coaching position, Massachusetts state law regarding arbitration agreements applied to his discrimination claim against the Broncos. Under Massachusetts law, an arbitration agreement where one party can change the terms of the agreement without notifying the other side is illusory and thus, unenforceable. As a result, Flores is not bound to litigate his claims against the Broncos in arbitration.
The district court also found that Flores’ claims against New York and Houston may proceed in federal court because NFL Commissioner Roger Goodell never signed the employment agreement in question. Thus, because the employment contract obligating Flores to arbitration was never signed, the court found the NFL failed to establish that Flores ever entered into a valid arbitration agreement.
While the law is the same regarding what constitutes discrimination — whether it is decided by a judge and jury, or a private arbitrator — the public’s knowledge of the proceedings is very different. By avoiding resolving employment disputes in court, the NFL and its franchises have not been subjected to the invasiveness of civil discovery, a process that has garnered much attention over the last few months.
The discovery process is intrusive and often results in the airing of an organization’s dirty laundry for all to see. Embarrassing information — irrelevant to the underlying proceedings — was central to the settlement that resolved the Dominion Voting Systems v. Fox News Network defamation case. Discovery in this matter produced countless PR headaches for Fox News and ultimately resulted in a settlement of more than three-quarters of a billion dollars when, on the eve of trial, private messages sent by popular on-air personality Tucker Carlson — that were produced during discovery — were reviewed by Fox’s board. Mr. Carlson was terminated less than a week after the settlement was announced.
The threat of continued discovery likely played a role in resolving the antitrust dispute that roiled professional golf for almost a year. The very public acrimony between the PGA and LIV Golf Tours abruptly ended (seemingly out of nowhere) with a merger announced between the entities. While details of the agreement remain unclear, one of the things definitively known is that the settlement resolved all pending litigation between the parties. The case’s procedural posture indicates that the two sides were fully immersed in discovery, with depositions on the horizon, before the deal was announced. It is reasonable to speculate that the discovery process was a significant factor in the case settling when it did.
While the Flores situation is unique, it is all but certain that the NFL will change its practices and standard contract language to avoid a situation like this in the future. Such changes include ensuring the commissioner actually signs all contracts, teams modifying their contracts to take into account more restrictive state laws, and franchises requiring job candidates who previously would not have been covered by a standard employment contract to sign an agreement agreeing to arbitrate any potential dispute about their employment before being interviewed.
Regardless of how the Flores case ultimately resolves, the NFL and its franchises will undoubtedly be more thoughtful going forward. The landscape for arbitration is changing, and courts and legislatures may make it more difficult for the NFL and other organizations to compel arbitration, especially when it comes to cases involving discrimination or alleged sexual misconduct. Anyone trying to enforce those provisions must be careful about how they do it, because courts are less inclined to compel arbitration and more willing to find a reason to keep jurisdiction.