Brian Flores, a former NFL coach who is now the defensive coordinator for the Minnesota Vikings, is currently involved in a lawsuit that has been filed against the National Football League (NFL), the Miami Dolphins and other teams which did not hire him. This lawsuit could have a major impact on how arbitration agreements within the NFL are handled, and perhaps elsewhere.
Flores had been a member of Bill Belichick’s coaching staff for many years with the New England Patriots, before he was hired in 2019 as the head of the Miami Dolphins. Flores was terminated by the Dolphins after the 2021 season. In March 2022 he filed a suit against the NFL and Miami Dolphins as well as the Denver Broncos and Houston Texans. He claimed that the NFL’s hiring process was biased against minorities. Flores says he was terminated by Miami despite a 24-25 record over three seasons. This is because of his race. Flores also claims that he has been passed over for coaching positions in Denver and New York because of discriminatory reasons. He says that he wasn’t even considered for a job opening with the Texans due to filing this lawsuit.
Flores claims that the NFL “Rooney Rule”, which mandates teams to interview at least one minority candidate when looking to hire a new head coach, is nothing but a “cruel scam,” in which African American candidates “interview for positions the team already filled,” and “Black coaches are treated harsher than their white counterparts” with regard to employment decisions.
The fact that the matter is being litigated publicly is as intriguing as the allegations themselves. NFL employment contracts stipulate that legal disputes between teams, their employees and the courts are to be resolved through arbitration. Arbitration clauses, particularly in the context of employment, are controversial. Arbitration provisions are controversial, especially in the employment context.
Congress has made exceptions in recent years that allow disputes to be litigated before a court, which would otherwise have been arbitrated. In particular, Congress invalidated pre-dispute arbitrator clauses which prevented parties from bringing sexual assault or harassment lawsuits in court.
The district judge ruled Flores claims against the Dolphins should be litigated through arbitration. However, Flores claims against any other team can be brought in federal court. Flores can now pursue his claims in federal court, as the NFL has a perfect storm. According to a March 2013 district court ruling, Flores’ discrimination case against the Broncos would be covered by Massachusetts arbitration law because he was working for the Patriots at the time he applied for the Denver Head Coaching position. According to Massachusetts law, an agreement that allows one party to change the terms without informing the other is unenforceable. Flores does not have to bring his claim against the Broncos into arbitration.
The district court found that Flores may also proceed with his claims against New York, Houston and the NFL Commissioner Roger Goodell in federal court since Goodell had never signed employment contract in question. The court found that because Flores’ employment contract requiring him to arbitrate was never signed, it failed to establish the NFL’s claim that Flores entered into an arbitration agreement.
The public’s knowledge about the proceedings may be different, even though the law regarding discrimination is the same whether it is decided either by a judge-jury or a private arbitration. The NFL and its franchises avoided the intrusiveness of civil discovery by resolving employment issues in court. This process has attracted much attention in recent months.
Discovery is invasive and can expose an organization’s dirty linen to the public. The settlement in the Dominion Voting Systems v. Fox News Network case was based on embarrassing information that had no relevance to the proceedings. Discovery in this case caused Fox News countless PR headaches and resulted in an eventual settlement of over three-quarters a billion dollars. On the eve before trial, Fox’s board reviewed private messages sent by on-air personality Tucker Carlson, which were revealed during discovery. Mr. Carlson’s employment was terminated a little more than a week following the announcement of the settlement.
Threats of further discovery played a significant role in the resolution of the antitrust dispute which engulfed professional golf for nearly a year. A merger between LIV and PGA Golf Tours ended the public acrimony that raged between them. Details of the agreement are still unclear but one thing is certain: the settlement ended all litigation between the two parties. The procedural status of the case indicates that both sides were in the middle of discovery and depositions before the settlement was announced. The discovery process is a likely factor that led to the settlement of the case.
It is almost certain that, despite the Flores case being unique, the NFL will modify its standard contract language and practices to prevent a similar situation in the future. These changes could include the NFL requiring that all contracts are signed by the commissioner, teams changing their contracts to reflect more restrictive state laws and franchises making job candidates sign an agreement agreeing that any dispute over their employment will be arbitrated before they are interviewed.
The NFL and its teams will be much more careful in the future, regardless of the outcome of the Flores lawsuit. Arbitration is evolving, and courts and legislators may make it harder for the NFL or other organizations to force arbitration, particularly in cases of discrimination and alleged sexual misconduct. Anyone who wants to enforce these provisions needs to be very careful, as courts are less likely to force arbitration and will look for reasons to retain jurisdiction.
The article Will Brian Flores’ lawsuit change how the NFL handles arbitration? first appeared on Attorney at Law Magazine.