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.