NFL Requests Replay on Second Circuit Ruling in Flores Case
The NFL on Thursday filed a petition for a rehearing en banc with the U.S. Court of Appeals for the Second Circuit in hopes that the appellate court will review and reject a recent three-judge Second Circuit panel's ruling thatsharply rebukedthe NFL's system of arbitration.
Petitions for rehearings en banc are akin to Hail Mary passes-they almost never work. Data indicates these petitions are grantedless than 1% of the timeand areparticularly disfavoredin the Second Circuit.
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Last month, Second Circuit Judges Jose A. Cabranes, Gerard E. Lynch and Raymond Lohier upheld a 2023 ruling by U.S. District Judge Valerie Caproni to deny the NFL arbitration on Vikings defensive coordinator Brian Flores' race-related discrimination claims against the New York Giants, Denver Broncos and Houston Texans for giving him allegedly sham head coaching job interviews and accompanying Flores' claims against the league. The NFL argues these claims can't be heard by a court until Flores exhausts league arbitration as contemplated in coaches' employment contracts and the league constitution.
The three-judge panel reasoned that Flores' rights were not sufficiently protected in an arrangement where NFL commissioner Roger Goodell, whom Flores accuses of misconduct, can serve as the arbitrator or can delegate that authority to a person of his choosing. The panel found that foundational principles of arbitration contemplate an independent" process that is separate from the parties to the dispute." As the panel saw it, the NFL's approach doesn't adequately safeguard Flores' rights.
Flores this weekpetitioned Caproni to reconsider her decisionto send his claims against the Miami Dolphins-whom he accuses of firing him as retaliation for his unwillingness to go along with tanking and tampering schemes-to arbitration. Caproni reasoned that Flores contractually accepted league arbitration by virtue of his Dolphins employment contract, but Flores contends the panel's repudiation of NFL arbitration logically means his claims against the Dolphins can't be credibly resolved with Goodell or Goodell's designated pick to serve as arbitrator (former New Jersey Attorney General Peter Harvey) serving as arbitrator.
Flores wants all active judges on the Second Circuit to rehear the matter, and he'll need a majority vote of the 13 active judges to vote yay. The league is hoping to thread the needle with its argument. If the NFL comes up short, it will likely then petition the U.S. Supreme Court to intervene.
Former U.S. Attorney General Loretta Lynch; Kannon Shanmugam, a former clerk to the late U.S. Supreme Court Justice Antonin Scalia; firm chairman Brad Karp and other litigators at Paul, Weiss authored the NFL's brief.
While the Second Circuit decidedly disfavors rehearings en banc, the court identifies several exceptional circumstances where petitions are granted. Those circumstances include a decision by a panel that conflicts with Supreme Court or Second Circuit precedent, or involves one or more questions of exceptional importance."
There are 13 active judges on the Second Circuit. Of three panel judges, only Lohieris active. Cabranes and Lynch are senior judges, which is a voluntary status for judges who are least 65 years old, have served a sufficient number of years and who agree to a modified workload. The NFL needs a majority vote from the 13 active judges. Given that Lohier already decided against the league, it may be more accurate to say the NFL needs at least seven of 12.
Turning to the arguments raised by the NFL in its brief, the league contends the panel wrongly relied on a novel doctrine" that Flores hasn't raised, that conflicts with precedent and that cannot be squared" with the language of the applicable law, the Federal Arbitration Act.
In terms of precedent, the league emphasizes how it defeated Tom Brady in the Deflategate litigation in 2016. Brady argued that Goodell, serving as arbitrator, unlawfully upheld a disciplinary action made by Goodell, serving as commissioner. While two of the four judges (one trial judge, three appellate judges) who presided over the case sided with Brady, the NFL persuaded two of the three appellate judges that Brady's claims should fail because his union, the NFLPA, failed to negotiate the procedural safeguards necessary for him to prevail.
The NFL's brief stresses that inNFL Management Council v. NFL Players Association(a.k.a. Brady's case), the Second Circuit reasoned the parties to an arbitration can ask for no more impartiality than inheres in the method they have chosen." Stated more plainly, if the NFLPA didn't want Goodell to be able to sit as the arbitrator, it could have tried to negotiate different CBA terms.
That reasoning," the NFL's brief charges, controls" Flores' case and is contradicted by the panel's ruling last month.
To that point, the league says that Flores' claims are governed by arbitration clauses when he interviewed with the Broncos in 2019 and the Broncos and Texans in 2022. Even though those teams didn't hire him as head coach, the NFL contends Flores' employment contract as a Patriots assistant coach in 2019 and his contract as a Steelers assistant coach in 2022 both contain arbitration clauses and apply.
Caproni and the panel rejected that argument. They stressed that Massachusetts law, which governs the Patriots contract, barred the enforceability of the arbitration language, since the NFL could modify the constitution unilaterally and that the version of the Flores-Steelers contract submitted to the judge was never signed by Goodell.
The NFL further warns that unless the panel's decision is reversed, the precedent will fundamentally disrupt the longstanding, broad arbitration provisions of sports leagues that delegate to the league commissioner the authority to resolve disputes involving members of the league and their employees."
In that same view, the NFL argues the decision will cause problems for MLB, the NBA and the NHL, since each league has a materially similar arbitration provision" to one used by the NFL, and each, like the NFL, is headquartered in New York and thus subject to Second Circuit precedent.
Arbitration provisions have real world consequences for league governance. Last year, U.S. District Judge Jessica Clarkedismissed a trade secrets lawsuitbrought by the New York Knicks against the Toronto Raptors to an arbitration process overseen by commissioner Adam Silver. A few weeks ago, U.S. District Judge Denise Cotecited the panel's decisionin a case involving a former NBA referee suing the NBA and that contemplates arbitration.
The league says that unless a rehearing is granted and the court sides with the NFL, the panel's decision will enable a court to invalidate an arbitration agreement based on nothing more than a value judgment that its procedures are unfair."
Douglas Wigdor and other attorneys for Flores will have the chance to rebut these arguments in a forthcoming filing.
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