The NFL on Tuesday asked a federal court to send Brian Flores’ racial discrimination lawsuit against the NFL and six of its teams to arbitration, and that his two co-plaintiffs — former Cardinals head coach Steve Wilks and former Tennessee Titans coach Ray Horton — sever their cases and file separate arbitration claims.
The move to push for arbitration is not a surprise; the league in a letter to the court in April signaled its intentions, and the behind-closed-doors dispute resolution forum is the league’s preferred venue. NFL employment contracts and the NFL Constitution all call for arbitration and not lawsuits to settle disputes, points heavily belabored in the league’s filing.
But Flores and his lawyers have tried to push the NFL into not taking the move by arguing the league’s stated goals of racial progress are inconsistent with a lack of transparency inherent in arbitration.
“With forced arbitration, my case will be litigated behind closed doors, confidentially and without transparency, essentially done in secrecy,” Flores told a panel discussion in March. “With forced arbitration, there won’t be a jury of my peers who will hear my claims, which is one of the most important and fundamental rights we have in this country.”
Flores was head coach of the Miami Dolphins for three years until the team fired him in January. He interviewed for head coaching jobs with the New York Giants and Houston Texans, which he called sham interviews meant to meet Rooney Rule requirements of interviewing minority candidates.
The Pittsburgh Steelers signed him in February as senior defensive assistant and linebackers coach. The NFL’s filing reveals commissioner Roger Goodell has yet to sign off on Flores’ two-year contract, a heavily redacted version of which was included in the late-night filing. The NFL’s standard practice is for the league to review team employment contracts and have Goodell sign off on them. A source close to the NFL said the contract had a minor adjustment shortly before the filing, but nothing that will hold it up.
Also attached were the redacted contracts of Wilks and Horton. Left unredacted is the language calling for arbitration. And even though Flores did not have a contract with the Texans and Giants, the NFL argued arbitration is still mandated by the NFL Constitution.
The league does make a new argument. Flores alleges that team owner Stephen Ross tried to bribe him to lose games to get a better draft position (part of the racial discrimination case is the allegation Ross would not have made such a request of a White coach). The NFL argued that given that courts have stayed away from cases over how sports organizations internally regulate themselves, Flores’s argument of bribery falls into this category.
“Mr. Flores’s claims relate to alleged violations of various internal NFL rules — namely, the Rooney Rule, anti-tampering rules, and rules against intentionally losing games,” the league’s outside lawyers wrote in the motion to compel arbitration. “Courts are particularly hesitant to interfere in such matters, because the internal standards of professional sports leagues ‘are not necessarily familiar to courts and obviously require some expertise in their application.’”
Loretta Lynch, the former U.S. attorney general and now a partner at Paul Weiss, is listed at the end of the motion as the top attorney for the NFL.
In addition to the NFL, Texans, Dolphins, and Giants, the other named defendants are the Denver Broncos, Arizona Cardinals and Tennessee Titans.
(Photo: Mark Brown / Getty Images)