First appeared in Florida Daily
By Aron Solomon
NFL fans hate nothing more than they hate a tie, but that’s exactly what we’re looking at after a judge in the Southern District of New York denied the requests of both parties in the Brian Flores lawsuit to overrule a decision made back in March.
The reason that this week’s decision is best characterized as a tie is that neither side will be fully happy with the result. The most explosive claims – those alleging racial discrimination against the Miami Dolphins, which formed a central part of Flores’ argument – will be handled in a private forum overseen by NFL Commissioner Roger Goodell. While the judge made sure to point out that this type of arbitration isn’t illegal, from where I sit, it’s basically having your Golden Retriever impartially guard your refrigerator deli drawer.
So it’s a definite loss for Brian Flores on that aspect of this case, as the only way (in his mind and the mind of many observers, including your essayist here) for him to get a fair resolution in his legal claim against the Dolphins is for it to go to court. Not happening, especially because the NFL will shrowd these proceedings in layers of opacity, as the NFL does extremely well. In other words, we, the public, will learn almost nothing about the machinations of the case.
The NFL also lost this week as they sought to convince the judge that her March decision misinterpreted a key area of law or made a critical error. The judge wasn’t having any of this, with the end result that she said no to the NFL’s desire to force Flores to arbitration (rather than the courts) for his legal claims against the three teams that interviewed but didn’t hire the coach: the Denver Broncos, New York Giants, and Houston Texans.
This was a very hard no from the judge, who wasn’t at all open to the league’s argument that the other claims needed to head to arbitration because of valid or even not fully completed arbitration clauses. The logic in the NFL’s argument here eluded many league and legal observers and seemed to amount to the league wanting to imply that agreements existed where they didn’t.
It’s hard to believe for those who follow the NFL so closely that over a year has passed since Brian Flores sued the NFL for racism in their hiring practices. This case continues to highlight that, despite the Rooney Rule, which was introduced in 2003 to increase the hiring of minority head coaches, the league is very underrepresented with Black coaches.
To address the issue of underrepresentation, the article proposes leveraging the NFL’s financial interests. It suggests implementing a sliding scale for the percentage of Black and other minority head coaches in the league. The NFL would be fined for not meeting these targets, and the fine would escalate based on the degree of non-compliance. This approach aims to pressure teams to actively develop and hire diverse coaching candidates.
In an article I wrote just after Flores filed his lawsuit, I argued that pursuing legal action in a private business like the NFL would be an uphill battle, yet the lack of progress in increasing minority representation in head coaching positions absolutely warrants an active judicial review.
The Flores case brings significant attention to the wisdom of resolving workplace claims in public courts. This approach could enhance transparency and provide better access to potentially game-changing information during pretrial discovery. As Lake Worth lawyer Charlie Cartwright points out, “As this case develops, it is important to closely observe its implications on future legal proceedings in the NFL and other professional sports leagues.”
Ultimately, as the Sportico article pointed out, the litigation involving Flores is over a year old. This has the potential to drag out for several years, absent a settlement. Any ruling from the court in the Flores case will be appealable to the Second Circuit and, from there, can also be appealed to the Supreme Court on the slim chance they choose to grant certiorari and hear the case.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor-in-Chief for Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, YouTube, NewsBreak, and many other leading publications.