Arbitration clause could quickly derail the Brian Flores lawsuit

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The landmark lawsuit filed by former Dolphins coach Brian Flores against the NFL and three of its teams promises an inevitable trial in open court, featuring compelling testimony from and interrogation of persons like Roger Goodell, Stephen Ross, John Mara, John Elway, Bill Belichick, and more.

Unless it doesn’t.

The NFL’s first line of defense when defending against the Flores lawsuit inevitably will be that the case cannot be processed in court and that it must be resolved via arbitration. Although PFT has not yet seen the key language contained in Flores’s contract with the Dolphins, all teams use a provision requiring any disputes between coach and team to be resolved not in court but through an arbitration process that necessarily stacks the deck in favor of the team.

Here’s the relevant language, directly from another head coach’s contract: “[Coach] agrees that . . . all matters in dispute between [Coach] and Club, including without limitation any dispute arising from the terms of this Agreement, shall be referred to the NFL Commissioner or a Commissioner-appointed representative for the NFL for binding arbitration, and the decision shall be accepted as final, conclusive and unappealable.”

The NFL undoubtedly will file a motion to compel arbitration. Beyond getting the case to a very favorable forum (the Commissioner or his appointed representative won’t be inclined to rule against one of the Commissioner’s 32 constituents), arbitration removes the case from a public docket with public filings and public proceedings. While the league’s lawyers undoubtedly would work hard to insist on most matters in a traditional court proceeding being filed “under seal” and thus kept out of view, a trial eventually would happen in an open courtroom, with no relevant testimony nor admissible documents hidden from anyone.

In arbitration — especially arbitration handled by the Commissioner — that won’t be the case. There will be no access to documents or witness transcripts, unless those items are leaked. The “arbitrator” likely will restrict significantly the scope of discovery.

Flores undoubtedly will fight, arguing that the Commissioner or his representative can’t be fair. The league and the other teams will argue that the parties agreed to the process, an argument that helped the league eventually enforce the four-game Deflategate suspension of Tom Brady. Flores may argue that the arbitration agreement he signed is a “contract of adhesion,” a take-it-or-leave provision included in every NFL head-coaching contract that forces the party to accept the terms or not become an NFL head coach.

Flores also could try to separate the claims against the Dolphins from the claims against the NFL itself, the Giants, and the Broncos. The fact that former Raiders coach Jon Gruden sued the NFL and Goodell (and not the Raiders) didn’t keep the league from making a front-line effort to force the case to arbitration. Still, by its terms, the arbitration provision arguably applies only to claims against the Dolphins.

Finally, there’s this. At paragraph 25 of his complaint, Flores vows to file an administrative claim with the federal Equal Employment Opportunity Commission. That process cannot be short-circuited by an arbitration agreement. While it wouldn’t result in a full-blown trial in the usual sense, there could eventually be a public hearing with testimony and documents, if it comes to that.

The point for now is that the end result of the Flores lawsuit may not be a full-blown Seinfeld finale trial. If the league has its way, the civil claims made by Flores will be swept under the same rug where the results of the Washington Commanders investigation resides.

85 responses to “Arbitration clause could quickly derail the Brian Flores lawsuit

  1. Of course the best thing the league could do is ignore this whole fiasco on the grounds of a clause in a contract. That would really build confidence with “The Shield”.

  2. Even if the suit proceeded it would very quickly need to be separated into multiple suits because it’s not properly structured to be a class action. The Dolphins stuff in there is unique to him and totally unrelated to any discrimination claims so it can’t be part of a class action which requires shared experiences among all the plaintiffs. Any lawyer would have known that so it makes you wonder if it wasn’t done more for drawing attention than actually proceeding to court.

  3. So its the rich owner screwing the little guy who will be judge by the NFL. Sounds about right. Bill

  4. Whether Flores is right or wrong the league does not this going to court. Going to court will make anything brought up public documents and open the league up to other investigations if something in those public documents even hints at wrong doing by the league. The league has a team of lawyers that knows this. With everything going on with this, the paid to tank accusations, and the new information about Snyder, Roger is having a bad week.

  5. Flores would want arbitration, would avoid his claims being scrutinised.

    Given the guys lawyers claiming Grier had been Miami GM for 20 years, a court trial would be interesting…

    It’s amazing how a lawyer like Florio seem to have avoided critically analysing the claims of Flores. IMO (IANAL), Flores planned this for a while knowing he’d have difficulty getting a HC job due to being defensive minded, unable to develop an offence, being tough to deal with. Probably figured other people with stronger cases would join in which has failed to happen.

    It’s amazing also that his firing was something that needs addressing yet the way Flores fired Pat Flaherty after FOUR DAYS based upon a gut feeling was of course perfectly acceptable.

  6. Given that Flores must recognize and that he could likely never be able to work for the NFL again, it would appear that this case is more about seeking social justice than financial compensation. As such, his filings with the court and FEOC will serve to highlight all of his claims and grievances. Without having read the entirety of the complaint or the Flores contract, it is difficult to opine further about how a court may view the arbitration clause and separate what claims might survive a motion to dismiss. A court could rule that certain claims must be arbitrated and others fall outside the purview of the clause. A court could also decide that all or portions of the agreement to arbitrate violate public policy. In any event, and, unless there is a quick confidential settlement (which is highly unlikely), all of the dirty laundry will come out in public forums, arbitration clause not with standing. This is exactly not the kind of attention the NFL owners would be hoping for during the weeks before the biggest game of them all but it is exactly the kind of attention that some of the underlying issues deserve.

  7. How can the NFL is protected bc he was under contract with the pats when the broncos interviewed him and it protected bc he was under contract with the dolphins. The NFL is in serious trouble with the giants because he wasn’t under contract and are not protected. I’ll get my popcorn.

  8. The giants already interviewed Frazier prior to Flores complying with the Rooney Rule, so that already weakens Flores case. This will likely go nowhere, except for Flores being out of the league.

  9. Wow, talk about IGNORING all the details that have come out over the last 48 hours.
    The Giants and Broncos already laid out convincing FACTS that completely contradicts Flores’ argument.

    What happened to journalistic integrity and instead of just pushing Flores false narative, look at the whole body of information and approach it with an unbiased eye?

  10. When you go up against Goliath, you better have the magic stone. Otherwise your going to get smashed.

  11. When he brought BB into this, I started to question what the guy is doing. He wouldn’t even be where he’s at if it weren’t for him.

  12. “The coach agrees…”. As he is not a coach, it seems the language does not apply to Flores. If it does apply, it would seem only to apply to the Dolphins, where he was a coach.

  13. Eight coaches fired he was the only one to be interviewed. Flores then turned to play dirty.

  14. One thing every head coach in the AFC East needs to learn. Bill Belichick is a better liar then you are.

  15. Pretty clear he has no case. The real questions should be: Did he really get this lawsuit ready in two days? And–Why is Brian Flores so erratic?

  16. So that applies to the Dolphins, how does that remove the Giants or the NFL from the equation?

  17. But isn’t the NFL as a whole named in the suit? Yes he’s suing an individual club, but also the NFL as a whole. Doesn’t that kinda make the arbitration by the head of the entity he’s suing moot? You can’t be arbitrated by the head of the organization you’re aggrieved by.

  18. So its the rich owner screwing the little guy who will be judge by the NFL. Sounds about right. Bill
    Yeah ok, Brian signed said contract so rich owner not screwing little guy

  19. What I don’t like is for the next 25 years, whomever gets fired as a head coach in the NFL, we will be inundated with “Hire Brian Flores.”

  20. Brian I was with you in the beginning. Now you have lost me brining in BB. Facts against you are starting to make you look like you are flat out lying. This will never get to court. Any arbitrator will side with the NFL on this one. Leslie Frazier was interviewed before you with the Giants, that makes you look pretty stupid. Denver and John Elway have presented facts that make you also look bad. By By NFL. We all agree there should be more Black HC in NFL that are qualified.

  21. The commentary here misses the bigger point: Whether Flores does or does not have a valid legal claim, there is racial discrimination in the hiring and retention of head coaches and GMs in the NFL. Even Jerry Jones said, “We can do better.” But when?

  22. This is exactly why the responses from the teams was so vociferous. They know they will never actually have to defend the accusations in court. The qualifications made in each of the teams statements are evidence of their initial attempts at obfuscation.

  23. In looking at this more, and looking at the responses by the teams and people involved, I am starting to think the NFL will want this to go to court where Flores is desperate for a settlement. While I first took this for somebody taking a leadership position on issues of equality and fair hiring practices, I am now wondering if Mr Flores has other motives, and if they have to do with his status as a viable head coaching candidate. His record did not warrant his termination, so could of it been something else? It is strange how detailed the “defendants” have been in their public statements. Something is very odd here.

  24. I have wondered, but have not seen mentioned, whether Flores accepted the payoffs for games he lost, even if not intentionally losing. If he accepted the money, does that make him guilty too? Would it have been directly deposited in his bank, like a paycheck? There must be some sort of records. I can’t imagine paying $100,000 in unmarked $20 bills.

  25. Very simple, drop Miami from the case proceed with the case and also do an EEOC claim against Miami.

  26. Why don’t I think that if Brian had NOT started this war with the NFL he would have been offered the Texans,Jags or Saints job already. He messed up big time.

  27. as a black man, and a lawyer, this was not very well thought out at all by Brian or his attorneys. This was a knee jerk reaction meant to grab headlines. What is the class?? every single black coach? That was their first misstep. It snowballs from there.

    There is no doubt problematic hiring patterns in the NFL that quite frankly mirror society. But this is simply not the way to go about rectifying these issues.

  28. Already burnt out on this topic. Idk, maybe hes right, or maybe he really is a jerk and part of the reason he was fired. Personally i think the Rule is dumb and ineffective, force a team to interview someone based on the color of their skin. The real story is being paid a bonus to lose games.

  29. This is all just part of the process. Flores and his team were completely aware of the arbitration clause of course. But they went ahead anyway, and did it publicly. Perhaps it will be settled for whatever it is that Flores wants. Perhaps not.

  30. His, the league’s and the owner’s attorneys clearly anticipated this probability.

  31. This is not going to court. The NFL would take an L in settlement if they had to before they would ever allow a discovery process to take place. The key point here is that the NFL fears being opened up to discovery more than it fears losing the case. And before taking that L they will pull out every other trick. So far we have “is Baseless” and “it has to be arbitrated” and we will see what more.

  32. But he’s no longer a coach; He was fired; he’s a former coach. I think that agreement is now void.

    I agree that arbitration is a possibility. Some of these matters are “League Rules”, and not laws, and might better be settled in arbitration.

  33. He’s not a coach (employee) anymore.
    And ‘any dispute arising from the terms of this Agreement’.
    His dispute does not arise from the the terms of this agreement, which are no longer in effect because his employer terminated that agreement. I could effect his suit against the dolphins but could not impact his suit against the other parties (of which he was not employed)

  34. I was hoping to see Flores succeed. To show Miami they made a mistake. Now, I fear he’ll end up living in a van-down-by-the-river.

  35. How much of a discrimination case does Flores have? By his own admission, he was fired because he had multiple disputes with the owner. By his own admission, the Giants hired Daboll based on Bill Belichicks recommendation. And he acknowledged that the Broncos already had someone in mind before they interviewed him. So he cannot claim that he wasnt hired due to discrimination.

    What is his claim for discrimination, that the Rooney rule wasted his time? Corporations often open positions for interviews even though they know who will fill the position. Its a part of the process. Should that be torn down as well?

  36. So Flores argument is that nobody should be talking to the guy he previously worked for a decade when he is interviewing for a job that pays millions?

    For all Flores know Bilichick might have been doing him a favor by ‘accidentally’ texting the wrong Brian because he was pissed the Giants weee just using Flores to meet their Rooney rule obligations.

  37. That sounds like something that would really make the league look good and trust that the process is fair.

  38. The Rooney rule now requires “TWO” minority interviews. Leslie Frazier being interview proves nothing besides possibly adding a second coach to the class action suit.

  39. So Bill Belichick gives 2 lowly assistants [mangini/flores] the opportunity to become multi-millionaires, and they both eventually stab Bill in the back!!

  40. Flores has lost all respect he had from the NFL and it’s fans. If Flores really wanted to do the right thing he would have called a press conference right after he was offered $100k per loss and condemn Ross and the Dolphins. Flores is upset because he’s off the hamster wheel now and he’ll never ever be allowed back on!

  41. I just don’t see Flores being able to prove any of his claims. I’m not saying that none of this happened. It’s just going to be really hard to prove.

  42. quint69 says:
    February 4, 2022 at 12:13 pm
    What I don’t like is for the next 25 years, whomever gets fired as a head coach in the NFL, we will be inundated with “Hire Brian Flores.”

    Yes, the Kaepernick adventure all over again!

  43. Flores is not contesting a wrongful termination by the Dolphins which most likely is covered by the arbitration clause in his contract. He is contesting a Sec. 1983 violation, based on unconstitutional actions of several parties (Giants, Broncos and maybe the NFL through its agent, Bill Belichick). Not sure a constitutional infirmity can be superseded by a contractual clause not contemplating these actions. Also, I’m not sure how the tanking issues fall under the binding arbitration clause. That, to me is the real concern for the Dolphins and the NFL.

  44. I can still remember the commissioner and his lawyer Wells went after Brady using the term ‘ Integrity of the game”. Maybe this term can be used against Flores as well.

  45. The arbitration agreement may block the Phins portion of the suit but if they broke any laws with the loss agreement that won’t go to arbitration. I think he’ll have a bit of a case given Coaches like Marvin Lewis coming forward saying he saw John Fox was heading to the Panthers on the news and getting a call from them that day. We all “know” that most black Coaches end up interviewed for compliance and not any real interest in them. Flores gave them back to back winning seasons, Miami had a 20 year drought of those, so it’s not like he’s a bad coach and the Giants last two Super Bowls came at the hands of their defensive prowess. The Rooney rule brought about a flood of minority coaches, so it’s safe to say its working. Its also bringing about this issue of minority Coaches getting bs interviews. Flores deserves a shot at another gig because he’s earned it. I’d take him in a heart beat over Matt Rhule

  46. nyjad says:
    February 4, 2022 at 11:36 am
    The giants already interviewed Frazier prior to Flores complying with the Rooney Rule, so that already weakens Flores case. This will likely go nowhere, except for Flores being out of the league.
    WRONG! The Rooney rule requires TWO interviews

  47. Flores has shown himself to be too smart for his own good. Not only was he just an average HC he has blown any real chance of becoming an NFL coach again.

  48. If flores’s wife was smart she would divorce him while he still has a couple of bucks left.

  49. I think what’s going to hurt his case against the Giants is that he got the text from BB before his second interview with Giants. Why would they bring you back for #2 if they had already did enough to comply with the Rooney Rule? Is it possible they had chosen Daboll and was bringing Flores back for 1 last chance to change their minds?

  50. Ummmm………..he doesn’t have a contract with the Dolphins. Did you miss the part where they fired him?

  51. To bad the lawsuit is in regard to a federal law not the terms of his contract which was not in force because he was terminated. If the NFL is banking on that they are mistaken along with the writer. The NFL cannot oversee a discrimination lawsuit it is the sole jurisdiction of the Federal court it was filed in.

  52. This analysis sounds right. Flores would likely need to land an activist judge to avoid it being sent to arbitration. It will be mired there for a while. Ultimately though it seems likely that Congress will intervene so it’s unlikely the NFL will be able to keep everything sealed from public view forever.

  53. In addition good point on Brady. All those who cheered his suspension will also be able to cheer the league winning against Flores in the same way.

  54. footballpat says: “WRONG! The Rooney rule requires TWO interviews”

    Leslie Frazier and Brian Flores. Plus internal candidate Patrick Graham. Giants went BEYOND the Rooney Rule requirements.

    Unless you really believe a $3 Billion business would hire the next head coach based on a 20-minute Zoom call without even discussing his coaching philosophies, team culture, plans for unleashing Daniel Jones’ talent, his potential coaching staff hires, etc.

  55. Arbitration is something that has been abused. A warning to all, ensure any contracts you will sign are void of any such clauses. Arbitration usually screws the smaller dog in the fight. (Not legal advice)

  56. Why give Brian Flores and Jim Caldwell a chance at coaching when Jim Tomsula and Ben McAdoo are available? Lol

  57. Wow! As a Dolphins fan I’m no fan of Belicheat, but what a way to pay back the man that taught, and gave you your first opportunity in the NFL. Flores is throwing Bill under the bus! I lost all respect for Flores on this one! I would never hire him if I owned a team. I understand going after the other teams, but where is your loyalty?

  58. The only shot he has is to have Belichick come forward and support Flores claims.

    This doesn’t seem very well thought out beforehand.

  59. If only there was this…what is it called….oh yeah….A UNION!!!!

    Maybe the coaches would have more rights!!! Too bad so sad.

  60. Going public with private conversations like Antonio Brown and Brian Flores did is a good way to make sure these owners keep prioritizing trustworthiness over ability and hiring friends, former work associates and family members.

  61. redclaw1314 says:
    February 4, 2022 at 2:02 pm
    quint69 says:
    February 4, 2022 at 12:13 pm
    What I don’t like is for the next 25 years, whomever gets fired as a head coach in the NFL, we will be inundated with “Hire Brian Flores.”

    Yes, the Kaepernick adventure all over again!

    The difference being Flores is good at what he does. I actually wonder if that was part of the problem.

  62. When the Dolphins hired Flores, the Rooney Rule required them to interview another outside minority candidate. If they decided Flores was their man, was any subsequent interview of a minority necessarily a “sham interview”? And if so I, was it illegal racial discrimination?

  63. epray66 says:
    Arbitration is something that has been abused. A warning to all, ensure any contracts you will sign are void of any such clauses. Arbitration usually screws the smaller dog in the fight. (Not legal advice)

    Usually if you dont sign the clause, you dont get the job.

  64. In todays day and age, this was never about what he could prove, it was about making the allegation. The allegation is enough, even if the allegaton is bogus…

  65. Losing Coach that’s never been in a playoff game.

    You are what your record says you are.

  66. I Was surprised when the Dolphins fired Flo because I thought he did a good job…..but now its obvious why they ran Flo out of town. Holy crap, this guy went Antonio Brown on the Giants, Dolphins, Broncos, Belichik, Brady. Brian ” The Bus Driver”

  67. Not sure how that clause could be applied since no contract has actually been signed. Flores (to my understanding) isn’t suing about something that happened pertaining to his contract with the Dolphins. He’s suing about not getting a contract (another job). How could that arbitration clause apply in this case?

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