Second Circuit Denies Motion to Compel Arbitration of Class Claims Relating to Race Discrimination by the NFL
Three current and former NFL football coaches and sued six teams and the NFL (collectively the Defendants) for racial discrimination in violation of 42 U.S.C. § 1981.
Brian Flores, a veteran NFL coach, first filed his claim in 2022. He amended his complaint that year and added claims by Steve Wilks, Ray Horton, and a putative plaintiff class. Each member of the putative class is a current or former employee of the Defendants, and each agreed to arbitration, consistent with the NFL Constitution.
In March, 2023, the District Court granted some motions for arbitration with respect to claims brought against the Dolphins, the Cardinals, and the Titans as well as the related claims against the NFL, based on club-specific arbitration agreements. The District Court denied motions for to compel arbitration with respect to claims brought against the Giants, the Broncos, and the Texans, as well as related claims against the NFL. The District Court denied both those motions and motions for reconsideration. The Defendants appealed.
In August, 2025, in Flores v. New York Football Giants, Inc., the Second Circuit affirmed the District Court’s rulings. The reasons why the claims against some teams could be sent to arbitration and the claims against others could not is fact-specific and not of great legal interest. The reasoning behind denying he motions of the team that did not have club-specific arbitration provisions is far more significant.
The opinion is categorical. The Court concludes:
Flores’s agreement under the NFL Constitution to submit his statutory claims against the Broncos and the NFL to the unilateral substantive and procedural discretion of the NFL Commissioner—the principal executive of one of Flores’s adverse parties—provides for arbitration in name only and accordingly lacks the protection of the Federal Arbitration Act (“FAA”); [and] Flores’s agreement to submit his statutory claims against the Broncos and the NFL to the unilateral discretion of the NFL Commissioner is unenforceable because the agreement fails to guarantee that Flores can “vindicate [his] statutory cause of action in [an] arbitral forum. . . .
The FAA, the Court observed, requires the enforcement arbitration provisions. It does not require the enforcement of agreements that involve alternative mechanisms for dispute resolution, such as “dueling, flipping a coin, or settling controversies with a game of ping pong.”
With respect to statutory claims, like those at issue here, the Supreme Court has recognized an “effective vindication,” doctrine. Under that doctrine, even arbitration agreements governed by the FAA can be invalidated, to the extent that they prevent the vindication of statutory rights. Although the District Court invalidated the arbitration agreement at issue under Massachusetts law, the Second Circuit found it unnecessary to reach that ground because: (1) the agreement to have disputes determined by the chief officer of one the defendants was not an arbitration agreement governed by the FAA; and (2) allowing dispute resolution in that forum would not guarantee Mr. Flores’ right to vindicate his statutory rights.
The Court provides two reasons for finding that the FAA does not govern here. First, the agreement is not governed by the FAA because it does not provide for an independent arbitral forum. Second, Mr. Flores’ contract specifically provides that the NFL Commissioner is to dictate the applicable procedures. The Commissioner made a late attempt to provide more even-handed procedures, but the viewed those efforts as further evidence of his unbridled discretion. Under the most basic principles of the effective vindication doctrine, Mr. Flores agreement with the Defendants is unenforceable.
In January of this year, the Defendants petitioned the Supreme Court for review. The issue presented is as follows:
Whether an arbitration agreement governing disputes in a professional sports league is categorically unenforceable under the Federal Arbitration Act because it designates the league commissioner as the default arbitrator and permits the commissioner to develop arbitral procedures.
You can find Mr. Flores’ responsive brief here. Here is how he characterizes the issue:
Whether professional sports leagues may require statutory employment discrimination claims against the league and its teams to be adjudicated by the league’s chief executive.
The Giants’ reply brief is here. There is also an amicus brief from in support of the Giants.
I will be interested to see if the Court takes the bait. On the one hand, the Court is protective of arbitration, especially in contexts such as these, where the party opposing arbitration has made objective manifestations of assent to arbitration in the specified forum. In the alternative, there is Judge Easterbrook’s view that, if the parties have agreed to arbitrate but there are problems with the arbitration provision, the District Court can send the parties to an arbitral forum of the court’s choosing.
On the other hand, in Jarkesy, the Court got all woke about protecting the Seventh Amendment right to a civil jury in the context of proceedings before the SEC. There, as in this case, the SEC brought its case against the defendant in an administrative tribunal. In the Court’s view, the SEC acted as judge in its own cause. The same could be say of the NFL’s arbitral proceedings. However, here there is contractual consent, and the Court was unwilling to find implied consent to submit to the SEC’s administrative apparatus as, for example, part of the bargain when one engages in financial transactions involving securities.
Stay tuned.