Could Brian Flores’ employment discrimination case erode, rather than enhance, civil rights? And could it incentivize businesses to impose “one-sided, unconscionable arbitration agreements” on workers and consumers?
An amicus brief filed in the Southern District of New York on Tuesday warns of those provocative possibilities.
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“It cannot be overemphasized that the NFL’s unilateral designation of Commissioner Goodell to serve as the arbitrator for these civil rights disputes is unconscionable and an egregious violation of fundamental fairness,” a dozen law professors from Columbia Law School, Stanford Law School and other schools argue. They analogize Goodell arbitrating to “a flagrant horse-collar tackle, a hit on a defenseless player or allowing a referee to officiate a professional football game where the referee owns one of the teams.”
The professors, who specialize in dispute resolution law, urge Judge Valerie Caproni to reconsider her recent ruling to send Flores’ claims against the Miami Dolphins, as well as well as claims brought by co-plaintiffs Steve Wilks and Ray Horton against their former employers (the Arizona Cardinals and Tennessee Titans, respectively), to an arbitration process overseen by Goodell. Caproni concurred with the NFL that the three coaches explicitly agreed in their employment contracts to this arrangement.
As the professors see it, the NFL’s system for dispute resolution runs afoul of procedural fairness. Both employee and employer, the professors write, should “participate in the joint selection of an arbitrator from a roster or list of arbitrators.” The NFL not only denies coaches a “meaningful” opportunity to select an arbitrator but “to add insult to injury … also unilaterally and specifically designated a highly problematic arbitrator: Commissioner Roger Goodell.”
The professors propose four ways in which this setup “violates norms of fundamental fairness.” First, Goodell’s “interests are inextricably tied” the businesses Flores is suing, thus creating a conflict of interest. Second, Goodell arguably prejudged Flores’ case when the league “emphatically” declared the case was “without merit” only hours after Flores filed the complaint in 2022; it would be a “sham,” the professors contend, for Goodell to arbitrate a case he’s publicly dismissed. Third, Goodell “could be called as a witness,” which would spawn an illogical situation where Goodell the arbitrator would oversee Goodell the witness. Fourth, Goodell “is not an attorney” and is “not legally trained to hear these civil rights disputes.”
The professors attempt to contextualize Flores’ case beyond football and sports. They argue that if Caproni allows Goodell to arbitrate a civil rights employment matter, “major companies” will be incentivized to update their arbitration agreements accordingly. Those agreements could be reworded to contemplate a “company representative” serving as “the sole, designated arbitrator for employment disputes or consumer disputes against the company.”
“Imagine,” the professors warn, that Uber rewrites its policies so that “all consumer or driver disputes” must be resolved through arbitration and the arbitrator “must be a senior employee of Uber, such as an executive or senior level management working at Uber’s headquarters.”
These are not isolated worries, the professors charge, given how common arbitration agreements have become in the American economy. They cite data finding there are “more than 60 million American workers” bound by arbitration agreements, with “about 80% of America’s largest companies” using arbitration. The professors also refer to a 2018 study finding “more than 826 million consumer arbitration agreements in the United States,” or about 2.5 times the U.S. population of 330 million.
Caproni will decide on whether to consider the professors’ brief, which follows Flores’ petitioning the judge to reconsider and reverse her ruling.