Fumbling arbitration at the goal line—a cautionary tale

The U.S. Supreme Court recently handed the National Football League (NFL) a significant off-field loss, declining to enforce the league’s arbitration agreement. West Virginia employers would be wise to make sure their agreements stand up to scrutiny.

Flag on the play

Former coach Brian Flores sued the NFL and two teams, the New York Giants and Houston Texans, alleging race discrimination and retaliation for his failure to be hired by either team. He alleged that his interviews with the teams were a sham. The league asked the court to compel Flores to take his claims to binding arbitration rather than have a jury decide the case. The lower federal courts, including the U.S. 2nd Circuit Court of Appeals, refused to enforce a supposed arbitration agreement. The Supreme Court followed suit by summarily rejecting the NFL’s appeal, thus allowing the 2nd Circuit’s ruling to stand.

Flores had an employment agreement that incorporated by reference the NFL constitution. That constitution contains a provision requiring teams, coaches, and players to resolve all disputes through an arbitration process. Specifically, the constitution granted the NFL commissioner “the full, complete, and final jurisdiction and authority” to arbitrate any dispute between any coach and a club. Thus, either the commissioner himself or his designee would be judge and jury on Flores’s claims.