NFL Argues Flores Claims of ‘Tanking’ Derail Civil Rights Suit

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Attorneys for Brian Flores and the NFL revealed key legal arguments in a scheduling briefing sent to the presiding judge, Valerie Caproni, on Thursday.

It marked the first time the NFL has explained its defenses.

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One defense jumped out: Flores, the NFL maintains, undermines his case by saying he was fired by the Miami Dolphins due to racism when he also says he was fired because he wouldn’t go along with owner Stephen Rossalleged pressure to lose games.

The argument came when the NFL insisted that Flores and his co-plaintiffs, fellow coaches Steve Wilks and Ray Horton, can’t prove their Section 1981 (civil rights) claims. The league, represented by former U.S. attorney general Loretta Lynch and fellow Paul, Weiss attorney Brad Karp, note that to succeed, the three coaches “must plausibly allege that they would not have experienced the alleged adverse employment actions if they were not Black.”

The NFL sees Flores’ situation as particularly deficient in that regard. “Mr. Flores himself,” the league wrote, “alleges that he was terminated by the Dolphins for reasons plainly unrelated to his race, including his alleged refusal to intentionally lose games or to violate NFL rules.”

The league also shared insight on its arbitration defense. As the league sees it, the three coaches “must arbitrate their claims, pursuant to their employment agreements with the Clubs and the NFL Constitution and Bylaws, which their employment agreements expressly incorporate and by which Plaintiffs agreed to be bound.” The league would likely offer the same argument should other coaches join the lawsuit or should it eventually be certified as a class action.

The arbitration defense is arguably the best one for the NFL. If Flores, Wilks and Horton have contractually assented to arbitrate workplace grievances, Judge Caproni must dismiss their lawsuit. But Flores’ attorney, Douglas Wigdor, insists the arbitration defense must fail. He notes the risk of “arbitrator bias,” in that the NFL would determine the arbitrator. He also fears his clients would be denied their legal rights if the league has control over the “arbitration process.”

The league, meanwhile, also contends that it is not a proper defendant since it doesn’t employ coaches and the case is built around employment discrimination. Wigdor disagrees, arguing that teams have conducted sham interviews with black candidates merely to comply with the NFL’s Rooney Rule. In that respect, the NFL is tied to employment.

To that point, Wigdor underscores how a former Tennessee Titans coach has “publicly admitted in a recorded interview that he was told he had been offered the Head Coach job before Mr. Horton had been interviewed.”

The case appears to be a long way from resolution. Neither side has expressed much enthusiasm for engaging in settlement talks. Both also signal they will aggressively pursue their positions. Judge Caproni will hold an initial pretrial conference on May 2 in New York City’s Thurgood Marshall United States Courthouse.

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