NFL intends to try to force entire Brian Flores case into secret arbitration

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The NFL currently faces a landmark piece of litigation aimed at forcing meaningful and needed change in the head-coaching hiring and firing practices of the league’s 32 teams. The NFL intends to try to divert the entire case from an independent, public tribunal into a secret, rigged kangaroo court.

In a civil case management plan and scheduling order submitted by the parties on Thursday, the league and the various teams that have been named in the case express an intention to file a motion to compel arbitration or, in the alternative, a motion to dismiss for failure to state a claim.

“We have said from the start that if the NFL wants to create change, the first step is to allow for transparency,” attorney Douglas H. Wigdor and John Elefterakis said in a statement. “The NFL’s attempt to force these claims into arbitration demonstrates an unmistakable desire to avoid any public accountability and ensure that these claims are litigated behind closed doors in a forum stacked against our clients. We will fight this request in court, but Mr. Goodell should have done the right thing, disclaimed arbitration altogether and allowed this case to be tried before a jury representing a cross-section of the community, just like those who watch football.”

In cases filed against the league or its teams, the NFL routinely attempts to invoke an arbitration process that typically calls for the claims to be resolved in a private arbitration resolved by Commissioner Roger Goodell or his designee. It’s impossible for anyone to get a truly fair outcome in a case brought against the NFL or against one or more of the teams that employ and compensate the Commissioner.

The NFL persists with this practice because, like many American employers, the league loathes the idea of public accountability for potential misconduct. Also, like many American employers, the NFL realizes that a private arbitration process is far less likely to result in the kind of verdict a jury of average citizens would impose against the league and/or its teams.

Any company that does the right thing by its workers and has nothing to hide should have no qualms about defending itself in open, public court against any and all claims. The NFL wants to have every single claim ever made against it to be resolved in a process that it both inherently secret and necessarily rigged. What does that say about whether the NFL believes the league and its teams does the right thing by its current or former employees?

It’s a decision to be rendered by the court of public opinion, and there’s nothing the NFL can do to control that outcome.

23 responses to “NFL intends to try to force entire Brian Flores case into secret arbitration

  1. And when they find the NFL at fault, the league will have to serve double-secret probation — kinda like Snyder did… 🙄

  2. Arbitration only applies if the parties are subject to a contract that requires it. Thus the NFL can force arbitration with players because the players accepted it as part of the CBA. Also arbitration is not inherently a kangaroo court, it depends on the designated arbitrator.

    Did Flores sign a contract agreeing to arbitration? Is that a contract to which the NFL (as opposed to the Dolphins) is a party? Does it specify that Goodell is the arbitrator for disputes between the team and the coach? Judging from the quotes of the attorneys, it sounds like these all could be the case, but it is odd for an employment contract to specify such an interested party as arbitrator rather than a third party such as AAA.

  3. Nice of them to try to save face for Flores. Maybe he can still have a career after this.

  4. I am not aware of any inherent confidentiality or secrecy that is attached to the arbitration process. Of course, there could be such a provision in this specific contract. Otherwise, there is nothing preventing the parties from talking about what the testimony was.

    Also, it is common for major arbitration proceedings to be recorded so the attorneys can cite the record in their post-hearing briefs. Again, absent some specific contractual provision, either party could release that record.

  5. When I was in Afghanistan Brian Flores came and spoke to the Americans I was on a JTF assignment with. I know nothing of american football, but he is a high quality person. Taliban started dropping mortars on us and Flores didn’t even flinch. I’d follow him into battle any day.

  6. Let’s do a hybrid…. call it “public arbitration”. Like the court shows on TV are. I would love to see Judge Judy preside in this case.

  7. Pretty sure arbitration is a lot less costly for business than defending themselves in court, so theres that too.

  8. Absolute POWER corrupts ABSOLUTELY….. the NFL is a clear & blatant example of this well know fact….

  9. In this day and age nothing is really secret anymore. Someone will post something on social media. Kinda like that secret arbitration that Kap went through to line his pockets?

  10. Flores employment agreement specifies arbitration. Of the. This is to the benefit of the employee because it limits the expense. If a company has the right to go to court they often do this to make the cost of pursuing a claim too expensive to pursue for the employees. Flores should honor the agreement and go to arbitration

  11. Sounds like it’s time for the DOJ to look into the possibility that NFL games were fixed. THe league will bury it. DOJ can shine a light on all of it.

  12. So the NFL wants secret arbitration on the case claiming discrimination in the league’s hiring practices? Not at all surprising. This certainly doesn’t make the NFL look good – just as in the WTF investigation they would like to hide as much as possible.

    The billionaire’s boy’s club that is NFL ownership doesn’t want to play by any rules or have to answer to anyone.

    Will the arbiter be allowed to issue a written report? Maybe they could be allowed one tweet to reveal their findings? Or maybe the findings could be released as a riddle?

  13. mogat says:
    April 21, 2022 at 9:42 pm
    Pretty sure arbitration is a lot less costly for business than defending themselves in court, so theres that too.

    Arbitration is not necessarily less costly. It all depends upon how the particular arbitration proceeding is structured. Prehearing discovery is in many instances just as intensive as court trials when complex issues are arbitrated. The same experts will be used in the arbitration hearing as in court.

  14. Tabasco says:
    April 22, 2022 at 8:59 am
    Will the arbiter be allowed to issue a written report? Maybe they could be allowed one tweet to reveal their findings? Or maybe the findings could be released as a riddle?

    Almost zero arbitrators issue written opinions or reports. Their decisions are almost always one or two liners stating only which side won and the relief granted. The caveat always being that the parties can agree to ask for specific findings of fact and conclusions of law.

  15. I hate it when my employer deploys the double secret arbitration card on me. It severely restricts my ploy of making crap up as I go.

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