NFL uses aggressive reading of its Constitution & Bylaws to argue for arbitration of all Brian Flores claims

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The NFL has, as it always does, filed paperwork aimed at forcing the claims made against it to the league’s in-house arbitration system, better known in these parts as a secret, rigged kangaroo court. Close inspection of the 25-page memorandum of law filed by the NFL earlier this week in the case filed by by Brian Flores, Steve Wilks, and Ray Horton reveals a very aggressive interpretation of the NFL’s Constitution & Bylaws, as part of an effort to force all of the claims out of court and into a process that is far more favorable to the league and its teams.

As to all three plaintiffs, the broad arbitration clauses contained in their employment contracts become the obvious basis for an effort to force arbitration. Flores, who worked for the Dolphins, has sued them for firing him. Wilks, who worked for the Cardinals, has sued them for firing him. Horton, who served as defensive coordinator of the Titans, has sued them for not making him the head coach. It will be difficult for them to avoid the duty to arbitrate; they’ll have to successfully attack the fundamentally unfair nature of the process. (And it is.)

But the case sweeps more broadly. Flores has filed claims against the Broncos, Giants, and Texans. He never worked for any of those teams. Thus, none can rely on the arbitration language appearing on a take-it-or-leave-it basis in the contracts team employees sign.

Instead, those teams rely on the NFL’s Constitution & Bylaws. They focus on two aspects of Section 8.3 of the document. Under Section 8.3(A), the Commissioner has “full, complete, and final jurisdiction and authority to arbitrate . . . [a]ny dispute involving two or more members of the League or involving two or more holders of an ownership interest in a member club of the League, certified to him by any of the disputants.” Section 8.3(B) gives the Commissioner the same power over “[a]ny dispute between any player, coach, and/or other employee of any member of the League (or any combination thereof) and any member club or clubs.”

The first argument is ridiculously weak, and it’s a prime example of the overlawyering that often happens in cases like this, when the lawyers are paid by the hour, handsomely. The teams basically contend that, because the claims made by the three plaintiffs involve “two or more member clubs,” the cases must be arbitrated.

This ignores the common-sense purpose of the provision. It’s there not to provide for a mechanism for resolving disputes between employees and teams. It’s there to provide a mechanism for resolving disputed BETWEEN TEAMS.

The second argument is stronger, relatively speaking. As to Flores, the teams contend that the claim made against the Broncos occurred when he was employed by the Patriots, and that his claims against the Giants and Texans (which arose when was not employed by any NFL team) became the subject of mandatory arbitration under Section 8.3(B) once he became employed by the Steelers. More broadly, the league claims that, because Flores cites systemic racism that has existed in the NFL for decades, the conduct of which he is complaining occurred while he was working for the Patriots and Dolphins, requiring him to resort to arbitration under Section 8.3(B) of the Constitution & Bylaws.

Both arguments under the Constitution & Bylaws seem flimsy. They arise from the NFL’s obvious desperation to steer all claims into its secret, rigged kangaroo court.

The process will continue with more written submissions, presumably oral argument, and inevitably a decision from the presiding judge. And if the NFL loses, expect the league to keep file appeal after appeal, until the case makes it way to the U.S. Supreme Court.

17 responses to “NFL uses aggressive reading of its Constitution & Bylaws to argue for arbitration of all Brian Flores claims

  1. Everything is open to interpretation, regardless of political views, right? If one side views the US Constitution as being a ‘living document’, then the NFL is free to interpret its own Constitution in whichever way it chooses.

  2. Flores’ claims against Miami are the most “flimsy”. The guy stuck around for 2 more years after allegedly saying Ross had it out for him. He’s no longer employed by Miami due to his awful high school caliber offenses and the rotating door at OC. Flores is a great assistant, but an awful head coach.

  3. The NFL has a very big broom and a large carpet that they want to sweep dirt under.

  4. The NFL covers it’s backside pretty well. It is obvious to the most casual observer that there is no consistency to penalties given to individual players and coaches. If a player or coach was involved in the scandalous behavior that some owners are guilty of, the penalties levied would have been much greater. The NFLs justice system is more like an injustice system.

  5. The NFL will win both the Flores case and Gruden case .. even if it takes going to appeals like the Brady deflategate case.

    They signed the contract they are bound by its terms.

  6. Brian Flores has argued that the league discriminates against minorities yet he only had 3 minority coaches on his own staff, and his claim that he was paid to lose is baseless where’s the evidence Brian?

  7. So . . . How will the resolution of this issue affect my favorite team’s Third Down percentage, of the defense’s ability to stop the run?

  8. “his claim that he was paid to lose is baseless where’s the evidence Brian?” He has no obligation to share it with you or anybody outside the case until it gets to trial.

  9. Although it depends on the state law that applies, it is well established that courts will bend over backwards to enforce arbitration agreements, so I expect the coaches have an uphill battle to avoid arbitration. Such a term might be favorable to the teams and League, but coaches can decline the offered employment if they feel strongly about it. I’ll bet that when the agents and lawyers point out the potential downside, the coaches only see dollar signs.

  10. You know that the NFLPA is a toothless, minor partner of NFL ownership when it allows it’s members to be led around by the nose on all legal matters by the NFL’s own arbitration system.

    The players are about 3 decades overdue for a Donald Fehr/Marvin Miller strength of leadership. And with all the money now flowing through the sport, the time is very very ripe for the players to hold that money hostage and force the NFL into legal liberation. It’s insane that I even have to be typing this observation in 2020.

  11. P.S. – I do realize that Flores is a coach and not a player, but the players are subject to the same bylaws and they should be the force that scrubs those from thr League, freeing ALL employees of the NFL.

  12. nosurrender says:
    June 24, 2022 at 2:55 pm
    Brian Flores has argued that the league discriminates against minorities yet he only had 3 minority coaches on his own staff, and his claim that he was paid to lose is baseless where’s the evidence Brian?
    ———————————-

    First this has not gone to trial that’s where you present evidence. Second he’s the only one who has made filings and statements under the pains and penalties of perjury. The NFL and the teams involved have only made PR statements for which there are no legal consequences.

  13. And we all know how the Supreme Court is these days. Nothing resembling the law going on there.

  14. Are Flores and Kaepernick and Jussie Garrett all related? You know studies today show lying is hereditary.

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