Former Dolphins coach Brian Flores filed a groundbreaking discrimination case against the NFL and multiple teams on February 1. Nearly a week into October, the final paperwork has been submitted on the question of whether the case will be processed in court, or via arbitration.
The NFL was supposed to get the last word, at least in writing, on the issue. Flores and his co-plaintiffs apparently received permission to file a so-called “sur-reply” brief in opposition to the league’s motion to compel arbitration.
Flores, Ray Horton, and Steve Wilks argue in the 11-page document filed on Friday that Commissioner Roger Goodell is hopelessly biased when it comes to resolving claims made against the league and its teams, and that the NFL can’t simply revise the arbitration agreement on the fly to replace Goodell with an independent, neutral body.
The rhetoric is strong, but potentially accurate. Say the plaintiffs at page one, “Defendants are asking Your Honor to be the first Court in the history of United States jurisprudence to find that a clearly biased arbitrator — one who is the chief executive of the defendant and already said the ‘claims . . . are without merit’ — can preside over statutory employment discrimination claims.”
The league has utilized this approach for years, steering any and all disputes toward the Commissioner, even if the disputes involve allegations of misconduct and/or impropriety of the league and its teams, a league and teams that employ and compensate the Commissioner.
The simple reality is that many who want employment with NFL teams are required to sign arbitration clauses giving the Commissioner the power to resolve disputes. And if the candidates won’t sign, they don’t get the job.
The take-it-or-leave-it quality of the deal makes it what the law calls a contract of adhesion. The possibility that the league requires the teams to include these clauses in their contracts creates an element of potential collusion among 32 supposedly independent businesses.
Regardless, the league’s ability to maintain a secret, rigged, kangaroo court for the resolution of these claims has persisted for years, largely unchallenged. Flores, Horton, and Wilks have decided to fight the practice directly and aggressively. Eventually, the courts will rule on whether the practice should officially be legitimized.