The Second Circuit just delivered a game-changing blow to the NFL’s playbook on discrimination disputes. In Brian Flores’s case, the court gave the green light to continue pursuing key claims against the NFL, Giants, Broncos, and Texans in open court instead of arbitration.
Rise of the Rooney Rule
The NFL has become America’s new favorite pastime, but that doesn’t mean it doesn’t continue to be fraught with contentious issues.
Like many professional sports leagues, race relations were problematic historically. Even after the League reintegrated in 1946, progress was slow: it took 20 years for the first Black official to be hired and 43 years before a Black head coach was hired. Even in the early 2000s, out of 32 teams, there were only three Black head coaches.
In 2002, under mounting public pressure, the NFL rolled out the “Rooney Rule.” The idea was that teams had to interview at least one minority candidate for head coaching jobs. But over the next two decades, not much changed. Twenty years later, there was still only one Black head coach in the league. The numbers for Black coordinators and GMs weren’t much better.
Flores’ Stunted Start
Brian Flores grew up in Brooklyn, beat the odds to become an NFL coach, and eventually landed the Miami Dolphins’ head coaching gig in 2019. He led Miami to back-to-back winning seasons — their first since 2003.
But behind the scenes, things were getting strained: Dolphins owner Stephen Ross allegedly offered Flores $100,000 per loss to “tank” for a better draft pick (Flores refused). When Flores also declined to break league rules by recruiting a prominent quarterback, he says he was labeled “difficult.” In January 2022, Flores was fired after three seasons with the Dolphins.
But hey, it’s the NFL, which is sometimes called the "not for long" league. Surely there’d be plenty of teams eager to scoop him up, right?
Sham Interviews
Flores started looking for new opportunities, and the New York Giants came calling — or so it seemed. They reached out to Flores about their open head coaching job.
But just days before his scheduled interview, Flores got a text from none other than Bill Belichick, legendary head coach of the New England Patriots. The message was a congratulatory note on landing the Giants’ head coaching gig. There was just one problem: Flores hadn’t even interviewed yet.
After some awkward back-and-forth, Belichick realized he’d mixed up his Brians. He meant to text Brian Daboll, who had already been picked for the job. Oops. A big oops: this meant that the Giants had already decided to hire Daboll (a white candidate), but still brought Flores in for an interview anyway, after they’d made their decision. Why? To check off a box for the NFL’s “Rooney Rule.”
This wasn’t Flores’ first rodeo with sham interviews, according to the lawsuit. Back in 2019, he’d interviewed with the Denver Broncos for their head coaching job. According to Flores’ complaint, Broncos executive (and legendary quarterback) John Elway showed up late and disheveled (allegedly hungover), making it clear he was never a real candidate. Elway disputes that characterization, saying that if he appeared disheveled, it was because he flew overnight after interviewing a different candidate.
Regardless, Flores went through with his interview anyway, sitting through a dinner and then a full day of meetings despite believing he was never seriously considered.
Flores Sues for NFL for Discrimination
Flores was fed up with what he saw as a pattern of racial discrimination and performative interviews across the league —not just with him but affecting other Black coaches. So, he didn’t just sue, he filed a class action. He named not only the NFL but also specific teams like the Giants, Dolphins, Broncos, and Texans (the latter allegedly retaliated against him for filing suit by removing him from consideration for their head coaching job).
Flores’ complaint accused these organizations of systemic racial discrimination in hiring and retaining Black coaches, coordinators, and general managers. Flores claims the NFL operates like a “plantation,” with white owners profiting off mostly Black players while keeping leadership roles overwhelmingly white. The complaint alleged “sham” interviews like his are widespread, that Black candidates are routinely passed over or quickly fired, and that pay is unequal.
Flores was soon joined in his lawsuit by two other seasoned Black football coaches, Steve Wilks and Ray Horton, each bringing their own stories of alleged discrimination to the field. Their lawsuit sought not only damages but sweeping reforms, like increasing Black representation in hiring decisions, requiring transparency in hiring and pay, and creating real accountability for discriminatory practices.
Locked Into Arbitration?
But before the district court could answer any of the core questions, it had a technical hurdle: arbitration clauses.
The NFL and the teams argued that Flores’ employment contracts, by incorporating the NFL Constitution, required all such disputes to go to arbitration, with NFL Commissioner Roger Goodell as arbitrator. They claimed that this was true for even those disputes involving teams Flores never worked for, and even after he was hired by other teams. Flores fired back that this setup was unfair. The arbitration clause lets the NFL (and Goodell) change the rules at will. It didn’t guarantee a neutral forum and forced individuals like Flores to argue his case before someone who was both his boss and a potential defendant. He said this made the agreement “illusory” and unconscionable under state law, and that it blocked him from truly vindicating his rights.
The first big question for the district court was whether Brian Flores’ claims had to be decided in private arbitration or could go forward in federal court. The district court sided with Flores on most key points. It ruled that for claims against the Broncos, Giants, Texans, and related claims against the NFL, the arbitration agreement was unenforceable — mainly because it could be changed unilaterally without notice (making it illusory under Massachusetts law) and because the Steelers contract lacked a necessary signature.
However, certain other claims, like those against the Dolphins, had to go to arbitration. Why? Flores had signed an employment contract with the Dolphins, which included clear arbitration clauses. For the other teams, there was either no direct contract or problems with how the contracts were executed or what they covered.
Second Circuit Greenlights Litigation
The NFL appealed to the Second Circuit. Recently, the court handed down the same result, though with slightly different reasoning. The appellate judges agreed with the district court on what could be litigated in court and what had to be arbitrated.
But the Second Circuit didn’t rely on state contract law (“illusory” contracts under Massachusetts law) as its main reason. Instead, it held that the NFL’s arbitration agreement wasn’t a real “arbitration” under federal law (the FAA), because it gave all power to the NFL Commissioner, who is not an independent arbitrator but rather an executive of one of the parties. The agreement didn’t guarantee Flores could “vindicate his statutory rights,” so it failed under the federal “effective vindication” doctrine.
Even if you called it “arbitration,” it was so one-sided and lacking in fairness that it couldn’t be enforced for these kinds of discrimination claims. Second Circuit Judge José A. Cabranes wrote that “the NFL Constitution's arbitration provision fails to bear even a passing resemblance to ‘traditional arbitral practice.’”
Jodi Balsam, arbitrator for the Forum of Arbitration & Independent Resolution Sport, warned that the district court may become a “magnet for anyone who wants to challenge an employment decision in the NFL.” But for now, Brian Flores will have his day in court.
Related Resources:
- Can Brian Flores Win His Race Discrimination Lawsuit Against the NFL? (FindLaw's Law and Daily Life)
- Former NFL Head Coach Asks Second Circuit To Move Discrimination Suit to Federal Court (FindLaw's Tarnished Twenty)
- Employment Discrimination Law (FindLaw's Learn About the Law)
