In two recent posts, I discussed a Nevada state court’s denial of a motion by the National Football League to compel arbitration of a lawsuit brought by former Las Vegas Raiders head coach Jon Gruden. The first post examined the court’s seeming disregard for a body of case law upholding the authority of commissioners in sports to arbitrate disputes within their leagues. The second post explained how the NFL’s confusing arbitration provisions made its position challenging.

A little more than a month later, the NFL is getting another chance. In February, former Miami Dolphins head coach Brian Flores sued the NFL, the Dolphins, the New York Giants, and the Denver Broncos alleging racially discriminatory hiring policies and practices. Steve Wilks and Ray Horton, two other NFL coaches, joined Mr. Flores’ suit in in April.

On June 21, the NFL and the defendant clubs filed a motion in federal court in the Southern District of New York to compel arbitration. In its brief, the NFL makes the same arguments that it did in the Gruden case: first, that the plaintiff-coaches agreed to broad arbitration provisions, which require any dispute to be referred to the Commissioner; and second, that courts have historically deferred to sports leagues’ management of internal affairs.

Will the NFL do better this time?

The arbitration provisions

The NFL’s motion to compel is based on the coaches’ various employment agreements -- specifically, Mr. Flores’ 2019-24 agreement with the Dolphins, Mr. Flores’ 2016-18 agreement with the New England Patriots, Mr. Wilks’ 2018-22 agreement with the Arizona Cardinals, Mr. Wilks’ 2022-24 agreement with the Carolina Panthers, and Mr. Horton’s 2014-17 agreement with the Tennessee Titans.  The NFL contends these arbitration provisions are sufficiently broad to encompass all the claims against the NFL and any of its member clubs.

The arbitration language from most of these agreements is available here.

Will the NFL succeed this time?

The NFL’s motion to compel arbitration in the Flores matter may suffer the same fate that it suffered in the Gruden case. The NFL lost its motion to compel in the Gruden case at least in part because the Nevada court determined that the arbitration provision covered only disputes between Mr. Gruden and the Raiders, not between Mr. Gruden and the NFL. The Flores, Wilks, and Horton arbitration agreements also all seem limited to disputes between the coach and the club. Mr. Wilks’ agreement with the Panthers does reference “the NFL,” but it is unclear whether it is referring to arbitration disputes with the NFL itself or only with the league’s “director[s], officer[s], employee[s] or agent[s].”

It is nonetheless possible that the court in the Flores matter will view more broadly the “arising from” language in the coaches’ arbitration agreements to also include disputes between the coaches and the NFL.

The venue is also important here. The Nevada state court did not address courts’ historical deference to leagues’ internal management and dispute resolution. Indeed, no Nevada court has ever addressed that issue. By contrast, the federal court in the Southern District of New York, in which the Flores case is pending, and the U.S. Court of Appeals for the Second Circuit, have an extensive body of case law.

In addition, in contrast to the Gruden case, three clubs have been sued in the Flores case – the Dolphins, the Giants, and the Broncos. It would seem difficult for Mr. Flores to escape his agreement to arbitrate any disputes with the Dolphins.  Yet, neither Mr. Flores, Mr. Wilks, nor Mr. Horton ever had an arbitration agreement with the Giants or Broncos. Thus, the Giants and Broncos are not well-positioned to compel arbitration if the NFL cannot prevail on its arguments that the relevant arbitration provisions should be interpreted broadly. But the case may become unwieldy if the claims against the Dolphins are sent to arbitration while the other claims remain in federal court. It is possible that the Dolphins might waive their right to arbitration to permit a more efficient defense.

The NFL can of course still prevail in the Flores action even if the case stays in court. But the league would certainly prefer to be in arbitration to avoid a public airing of the sensitive issues involved in the litigation.  Either way, as I explained in a prior post about Mr. Gruden’s case, it would be wise for the NFL to revisit – and broaden – the scope of its arbitration clauses.