The Brian Flores lawsuit was filed on February 1. As October 1 approaches, the litigation still hasn’t gotten off of square one.
On Friday, the league submitted the final written brief in support of its position that the Flores lawsuit should be forced to arbitration decided by Commissioner Roger Goodell or his designee. Via Daniel Kaplan of TheAthletic.com, the NFL’s 14-page brief addresses the argument that Goodell should be disqualified in part because the league office over which Goodell presides initially issued a statement that the lawsuit is “without merit.”
“While the NFL did state in a press release that it would ‘defend against [Plaintiffs’] claims, which are without merit,’ that statement represents the NFL’s position as a league,” the NFL reasoned. “Any inference that the Commissioner himself has prejudged this lawsuit is unsupportable.”
But the Commissioner is the league office. The statements of the NFL necessarily reflect his opinions. He’s the league. The league is him.
Beyond this obvious flaw is the simple fact that the Commissioner can never be truly impartial when resolving disputes involving those who employ him on one side and those who don’t on the other. The notion, as expressed in the NFL’s brief, that Goodell is capable of handling the case because he has made certain specific decisions that harm the interests of a given team (such as the Tom Brady suspension on the Patriots) ignores the fact that situations like that benefit the broader interests of the league. When a former coach, in contrast, sues the league and multiple teams, there’s no benefit derived from issuing a finding against the NFL’s broader interests.
A case like this underscores that point. Flores and his co-plaintiffs (Ray Horton and Steve Wilks) claim that the league and its teams have engaged in chronic and widespread racial discrimination, among other things. Can the Commissioner truly be trusted to say, “You know what? He’s absolutely right.”
As we’ve said in the past, why would the Commissioner even want to be put in that position? It makes sense to have a truly neutral party addressing the issue. It makes sense to just let the courts handle it.
Big business doesn’t want to defend itself in truly unbiased forum, however. While everyone deserves fairness in the adjudication of disputes, the public court system can be a little too fair to members of the general public who are seeking justice from the rich and powerful.
That’s why companies like the NFL seek to force all disputes into arbitration, and it’s why the NFL wants Goodell to be ultimately in control of the arbitration. It’s why arbitration clauses are presented to coaches and other non-players on a take-it-or-leave-it basis. Guys like Flores just want to coach; they’re not thinking on the way through the door about what will happen if/when they’re ushered out. Companies like the NFL are keenly aware of those potential outcomes, and they do whatever they can to ensure that the worst-case scenario will never be as bad as it could have been, if the legal claims had been ultimately resolved by people who have absolutely no connection to the company accused of wrongdoing.
It seems obvious. The Commissioner has a bias, especially in a case like this one. He shouldn’t be asked to be the one to resolve it. He shouldn’t be expected to be the one to resolve it. He shouldn’t want to be the one to resolve it.