The race discrimination case filed by National Football League coach Brian Flores against the league and some of its clubs has made no meaningful progress since it was filed in February 2022. The delay is a result of Mr. Flores’ decision to pursue the action in federal court rather than in arbitration and to challenge the authority of NFL Commissioner Roger Goodell to be the arbitrator.

Mr. Flores has repeatedly lost the argument regarding Commissioner Goodell’s authority, and that issue is before the U.S. Court of Appeals for the Second Circuit. However, Mr. Flores’ arguments may now be moot, because Commissioner Goodell has appointed Peter C. Harvey, former Attorney General of New Jersey, to be the arbitrator in the Flores case.

In other words, Commissioner Goodell will not be the arbitrator in Mr. Flores’s case in any event.

Court penalizes Flores for false start

In March 2023, a federal judge in the Southern District of New York issued a decision largely granting the NFL’s motion to compel arbitration. The court rejected Mr. Flores’s claims that the arbitration provisions in his contract were unenforceable because they gave the Commissioner Goodell authority to hear the dispute. Instead, the judge reasoned, if Commissioner Goodell administered the arbitration in a biased manner, then Mr. Flores could go to court and request that the arbitration decision be vacated. But the court would not prejudge the fairness of the proceedings, which were agreed to by Mr. Flores in his contract. (The New York Knicks recently lost a challenge to the authority of National Basketball League Commissioner Adam Silver based on the same reasoning.)

NFL has the ball

Returning to the Flores case, the NFL is appealing portions of the court’s order that denied its motion to compel arbitration. Mr. Flores, on the other hand, had no right to an appeal at this stage of the proceedings.

However, Mr. Flores is not without support. In July, 12 professors with expertise in arbitration law – led by Imre Szalai at Loyola University New Orleans College of Law – stepped in. In their brief, the professors have urged the Second Circuit to consider more broadly the potential implications of allowing employment-related arbitrations to be presided over by the Commissioner. The professors argue that permitting Commissioner Goodell to be the arbitrator “is unconscionable and contrary to the norms of fundamental fairness” and would provide an incentive for all employers to adopt similar dispute resolution processes.

Commissioner Goodell with the handoff

As explained in a prior article, the concerns raised by Mr. Flores and the professors are probably not realistic. To bypass such allegations, Commissioner Goodell has regularly appointed a neutral or near-neutral arbitrator to hear high-profile disputes.

He has now done so again. In a September 24 letter to the Second Circuit, the NFL informed the court that Commissioner Goodell had designated Mr.  Harvey as the arbitrator in the Flores case. Commissioner Goodell had previously tagged Mr. Harvey to hear the NFL’s appeal of an initial disciplinary decision involving Cleveland Browns quarterback DeShaun Watson. That case ultimately settled before Mr. Harvey had to weigh in.

Mr. Flores’ attorneys complained to the court that Commissioner Goodell’s designation of Mr. Harvey was merely “an attempt to falsely create an appearance of impartiality in the arbitration proceedings.” But Mr. Harvey’s resume is impeccable, and thus Mr. Flores’s arguments are unlikely to gain traction. That is particularly true in light of courts’ longstanding deference to the authority of sports league commissioners to resolve disputes. Indeed, in 2016, the Second Circuit famously upheld Commissioner Goodell’s authority in disciplining Tom Brady in the “Deflategate” matter.

The NFL’s appeal may well be decided in early 2025. Regardless of the outcome, the bulk (if not the entirety) of Mr. Flores’s case will have to proceed in arbitration. And by that point, Mr. Flores will have spent three years attempting an end-around that puts him back where he was in 2022.