When former Dolphins coach Brian Flores filed his lawsuit against the NFL and multiple teams in February 2022, the claim of systemic and chronic racial discrimination made it a landmark attack against the league. Flores’s efforts have had, to date, a much more significant impact.
Through a series of rulings during a four-year war over the question of whether the claims of Flores, Steve Wilks, and Ray Horton will be resolved in open court or (as the league strongly prefers) arbitration controlled by the Commissioner, Flores and company have torn down the league’s longstanding method for forcing employee legal claims into a secret, rigged, kangaroo court.
The problem is simple. The league wants civil cases filed against it to be determined not by an independent party but by the league itself. Finally, independent judges with the power to do so are telling the NFL that it cannot do so.
“The court’s decision recognizes that an arbitration forum in which the defendant’s own chief executive gets to decide the case would strip employees of their rights under the law,” attorneys Douglas H. Wigdor and David E. Gottlieb said Friday, after the latest decision scrapping the league’s practices. “It is long overdue for the NFL to recognize this and finally provide a fair, neutral and transparent forum for these issues to be addressed.”
And that’s really the next step. Instead of maintaining its current Hail Mary pass to the U.S. Supreme Court, the NFL should do the right thing and abandon the heavy-handed practice of insisting that lawsuits filed against the league be presided over by the Commissioner.
The Commissioner, who recently defended the practice by saying, essentially, “it was like that when I got here,” shouldn’t want to do it. It’s a hopeless and irreconcilable conflict of interest.
Few if any other companies attempt to stack the deck in such a laughable, third world, banana republic way. Most companies realize it’s more than sufficient to force employees into arbitration handled by one of the various companies (like the American Arbitration Association) that exist for that purpose.
It’s still a much better forum for corporate America than the traditional judge-and-jury process. Especially since the various companies that provide arbitration services tend to skew toward the interests of the businesses that are responsible for creating the system that funnels them so much business.
But that’s not good enough for the NFL. Its longstanding approach to arbitration is proof positive that it wants to completely control anything and everything it can.
Finally, the NFL is losing control over legal claims made by non-players. The consequences sweep far beyond Flores, Wilks, and Horton. Every other team and league employee who is compelled to agree to the arbitration term in their contracts now have a pathway to avoiding a fundamentally unfair and un-American approach to justice.
For that reason, maybe it will be useful for the league to keep pushing its appeal to the U.S. Supreme Court. Assuming that at least five of the nine justices of the highest court in the country see this game for what it is, the end result will be a published opinion that becomes the law of the land as to the league, all of its teams, and every current and future employee who have no choice but to agree to a contract that forces them to allow the Commissioner to have final say over any and all grievances they ever may pursue.
