Judge denies effort in Brian Flores case to conduct discovery on arbitration issue

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The lawyers in the Brian Flores case made an aggressive attempt to secure discovery on the question of whether the case should be sent to arbitration. The attempt was aggressive, but not successful.

Judge Valerie Caproni has denied the motion to compel discovery on the arbitration question.

She calls it an “impermissible fishing expedition,” and she explains that Flores, Steve Wilks, and Ray Horton don’t need discovery in order to argue “that the proposed arbitrator is so biased against them that the motion to compel arbitration should not be granted.”

“We are confident that we will defeat the efforts of the NFL to move this matter into a private and confidential arbitration behind closed doors,” attorneys Douglas H. Wigdor and John Elefterakis said in a statement. “It is obvious that the NFL is trying to hide behind the arbitration process and avoid public scrutiny of the racial discrimination and retaliation claims we have brought.  If they are confident in their defenses, they should let the process play out in court so the general public can see.”

The case should play out in public, before a truly neutral third party. The Commissioner, who is hired, paid, and retained (or not) by the league’s owners can never be truly impartial in a case involving his employers.

That said, there’s one specific line in Judge Caproni’s order that points to a potential finding that arbitration must proceed, with an attack coming on it after the fact.

“The Federal Arbitration Act (FAA) already contemplates a route through which parties can seek judicial protection against arbitrator bias; courts can ‘overturn arbitration decisions’ where there was evident partiality or corruption in the arbitrators,” Judge Caproni writes.

Flores and his co-plaintiffs are essentially arguing that the bias is so clear and inherent that any ruling will be partial and corrupt. They’ll have to make that argument without access to more information about, for example, Goodell’s full compensation or his history or arbitration rulings involving the NFL and its teams. Ultimately, they may have to go through the arbitration and argue later that the ruling shows evident partiality and corruption.

The response to the motion is due to be filed by August 19. The reply from the NFL and the teams that have been sued is due August 26.

18 responses to “Judge denies effort in Brian Flores case to conduct discovery on arbitration issue

  1. Why not do it in closed court with no media? Ensure that it’s not decided in the case of public opinion much like the D Watson debacle that is on display.

  2. Next he’ll sue for not being hired by the next team, if he ever gets another interview.

  3. So, in essence, the judge has ruled that under the FAA that you must suffer an injury before you can seek a judicial remedy. Sounds about right.

  4. The regular season can’t start soon enough.

    So many articles about Goodell, Snyder, Ross, or Flores, who all have one thing in common…

    I don’t really care about any of them.

  5. Arbitration clauses and Non Disclosure agreements should both be illegal and unenforceable. The NDA can, and usually is, used to hide evidence of crimes. The arbitration clause denies a person full access to the courts, a fundamental right of all persons, and is completely un-American.

  6. something tells me Flores thinks he will win solely based on the color of his skin. He also needs to realize if he were such a good coach, he’d probably still be in Miami as HC

  7. I am really not sure what this nonsense is all about at this point.
    1. Flores was 24-25 as record. He was Fired because of performance.
    2. If they “tanked” why is Joe Burrow not the QB in Miami?
    3. For that matter, why is Peyton not the Coach and Brady not the QB?

    I completely understand the tampering and what can I say… Ross and Beal are imbeciles, but it is like Speeding… everyone does it, just the ones ones pulled over are caught and made an example of. As a life long Fins fan; please find a way to get rid of Ross for us!!!!

  8. Flores 100% deserves another head coaching job in this league. Too bad the Giants never wanted him because he would’ve been an excellent hire.

    Unfortunately, as Florio has mentioned repeatedly, I think the league and owners are going to do everything in their power to conspire against him getting that opportunity.

  9. usmutts3 says:
    August 4, 2022 at 1:33 pm
    Arbitration clauses and Non Disclosure agreements should both be illegal and unenforceable. The NDA can, and usually is, used to hide evidence of crimes. The arbitration clause denies a person full access to the courts, a fundamental right of all persons, and is completely un-American.

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

    A couple of thoughts about your statements…

    1. Non disclosure agreements are agreements where someone receives something (a job, payment of some kind, etc) in exchange for not speaking about an event, or in some cases about proprietary information about a company. No one is forced to sign such agreements, and if this is an agreement that is offered after you have started employment – you can refuse to do so, retaining your rights to talk about it as often as you want. But you don’t get paid. So people who sign them weigh their rights vs the value of the payment. They have a choice.

    2. Juries are not unbiased, and can make decisions based on their personal feelings. There are many juries that routinely rule against large companies or rich people because they feel they can afford to pay – regardless of guilt/fault. Arbitration typically involved a neutral party, versed in law, who hears the testimony and makes a ruling. In the case of the NFL, the Players Association foolishly agreed to allow the Commissioner of the NFL to be the final arbiter/ruling on these cases. For Coaching hires, it is just a term and condition of employment. If you don’t sign, you don’t get to work for the NFL. But this is included in all of the contracts employees sign when joining the NFL – so it is not a surprise. If this bothers you – find employment opportunities somewhere else.

    And as a side note – many of you may not be aware of this – but agreements with your cell phone providers, software that you may have purchased, and other services you may use also require arbitration to settle disputes – and this language is routinely covered in those long agreements you click through when signing up for these services. So its not just the NFL that does this.

  10. mongonation says:
    August 4, 2022 at 1:45 pm
    Flores 100% deserves another head coaching job in this league. Too bad the Giants never wanted him because he would’ve been an excellent hire.

    Unfortunately, as Florio has mentioned repeatedly, I think the league and owners are going to do everything in their power to conspire against him getting that opportunity.

    Xxxxxxxxxxx Xxxxxxxxxxx Xxxxxxxxxxx

    Why do yall ignore his slow starts, no offensive scheme or philosophy and his defensive staff largely kept in place after his firing?

    Year 1) 0-7 start, we as fans understood the situation. He gets a pass.

    Year 3) 1-7 start, he held out a healthy Tua until Brissett looked absolutely hapless against Baltimore. And Tua led Miami to the win after taking over at half. Finishing the season 8-1 with Tua.

    This despite the worst offensive line in the league, gave up the most pressures and a LG and RT who had no business playing a single snap at those positions.

    Watch enough tape of that Miami offense, and he should be embarrassed he put that on the field for a NFL team. It was RPO based and when they needed a play, they had to keep 6 or 7 people in to block, with 2 or 3 man routes.

    Did any of you folks watch Miami last year? The year before?

  11. Question for Florio, since this is his area of expertise….. Would the Flores case have more of a chance of moving out of arbitration and into civil court, due to the arbitration clause in question, NOT being collectively bargained? I assume that Flores just had the standard arbitration clause the NFL puts in non-player team/league employee contracts. Could you maybe address that in a follow up article? It would make sense that his case could have more merit if the arbitration was essentially a forced take it or leave it situation.

  12. He’ll stick on the Steelers for awhile and might hit some interviews for the lowly teams but with his expectations of needing to be head coach I don’t think he’ll ever see it again. He felt entitled to a HC position when in reality coming off of a firing he should’ve been looking to be a DC coordinator. The only team that picks up failed scraps that fast is the Jets (Gase). He seems like a good coach, just not a good head coach. There’s a huge difference there.

  13. “This despite the worst offensive line in the league, gave up the most pressures and a LG and RT who had no business playing a single snap at those positions.”.
    Who’s responsible for acquiring the LG and RT, the HC or the GM?

  14. Go away already … We now know what Miami had a great roster but couldn’t win …. It was you Flores

  15. Just an average fan of my favorite team, this is more like those TV shows on during the day.
    “The day of our lives” Who really watches them? The NFL looks like the Presidents Office,
    Roger is President, the rest just staffers and untouchable!
    This is a rigged system for one end to the other, you just can’t win.

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