From time to time, we’ve referred to the NFL’s in-house arbitration system as a secret, rigged kangaroo court. In the brief submitted on behalf of Brian Flores, Steve Wilks, and Ray Horton in their lawsuit against the NFL, the league’s arbitration is likewise described as a “kangaroo court.”
The 25-page filing was made earlier today, in response to the league’s effort to force the entire case to arbitration. From the outset of the brief, the plaintiffs attack the league’s arbitration procedure as something that “bear[s] no resemblance to a neutral judicial forum and fail[s] to comport with basic principles of fairness.” The strongest proof for that contention comes from the argument that the Commissioner, who oversees the internal arbitration process, cannot be objective when it comes to ruling on claims involving the entities who have hired him and who pay him.
This point resonates as well: “If the Court compels arbitration, scores of employers following this case, and those who learn of it, will undoubtedly change their arbitration clauses to permit the appointment of an obviously biased decision-maker.”
The various claims and various defendants complicate the process of determining which claims are even eligible for arbitration. The league claims that all of the legal theories advanced by all of the plaintiffs should be sent to arbitration — including claims against the NFL, even though the NFL wasn’t a party to any of the contracts containing the relevant arbitration clauses.
The plaintiffs argue that the arbitration agreements are unconscionable, by focusing on the Commissioner’s inherent bias. And that seems to be the strongest argument, by far.
Really, how can the Commissioner ever be expected to be fair when sitting in judgment on cases involving the interests of the teams owned by the people who employ him? No fair-minded person should even want to be put in the inherently difficult position of dispensing fair and neutral justice in a case involving one of his or her employers.
But that’s how the league manages to control the damage. This is something that predates the current occupant of the office. By loading up contracts with take-it-or-leave terminology that forces coaches and other non-players to submit to the league’s arbitration procedure, the NFL manages to keep all disputes out of the public eye — and it dumps them into an arena that is far more likely to lead to the outcome the NFL wants.
It’s hard to blame the NFL for trying. Anyone would want a justice system that is oblivious to the notion that justice should be blind. Anyone would want the scales to be tipped in their favor from the outset of the process.
That’s why it’s important for courts to step in, and to call out such efforts to get those who will sign anything to sacrifice any semblance of a fair and neutral process. That’s what the NFL expects coaches and other key team employees do. And if the folks who have been offered those jobs want to actually get those jobs, they’ll sign on the dotted line.
No one will ever decline to accept the league’s arbitration procedures because to do so would mean to sacrifice the opportunity. This will ever change only if the court system forces it to change. If the court system is concerned about ensuring true fairness and justice for all, it will.