The NFL & Flores: Litigation Begins While Supreme Court Readies Arbitration Review
By Sasha Hill
While the National Football League and the Minnesota Vikings defensive coordinator who filed suit against the league complete their U.S. Supreme Court filings in anticipation of a certiorari decision that ultimately will determine whether the case should be arbitrated, a New York federal district court judge has ruled that their employment discrimination matter must get ready for trial.
The NFL has appealed a Second U.S. Circuit Court of Appeals decision that struck down its employment arbitration program--which allowed the NFL Commissioner to act as an arbitrator--to the Supreme Court. Russ Bleemer,” NFL Files #Scotus Appeal to Overturn Brian Flores' Win that Struck the League's Arbitration Process,” CPR Speaks (Jan. 7) (available here).
But last month, U.S. District Court Judge Valerie Caproni has issued her own decision based on the Second Circuit remand while the Supreme Court appeal is underway. Caproni echoed the strident language finding against the NFL by Second Circuit Judge José A. Cabranes in his unanimous panel opinion last summer in Flores v. N.Y. Football Giants Inc., et al., No. 23-1185 (2d Cir. Aug. 14, 2025) (available at https://bit.ly/41vR6iM).
The case was returned to the New York Southern U.S. District Court. Caproni lifted the case stay and again denied a motion to compel arbitration in full. Flores v. National Football League, et al, No. 22-CV-871 (Feb. 13) (available here).
Caproni clearly signals impatience with the prolonged procedural impasse in the case and seeks to move it forward in federal court, rather than continuing to wait for further Supreme Court action. She describes the matter as “an aging employment discrimination case that has been idling at the starting block for four years while the parties argue over the forum in which the case will be litigated: federal court or arbitration,” adding,
Defendants hang their hats on their hope that the Supreme Court will grant their current Petition for Certiorari and then decide the appeal favorably to them. . . . Until and unless the Supreme Court weighs in, however, this Court must act in accordance with the controlling law of the Second Circuit.
Echoing the Second Circuit Cabranes opinion, Caproni seems similarly unconvinced that the NFL’s arbitration system is fair—or that it constitutes “a neutral forum that could even be called an ‘arbitration’” as it is currently structured. She continues:
This case, even as it has progressed very little, illustrates the failures of the NFL to provide a process that constitutes “arbitration” as that term is used by the FAA. Defendants insist that the [NFL Dispute Resolution Procedural Guidelines] applies to all the claims in question and still appointed Peter Harvey, a friend but not an employee or staff member of the NFL, to arbitrate. [Harvey is of counsel in New York's Patterson Belknap Webb & Tyler and a former New Jersey Attorney General]… As the Second Circuit held, this further demonstrates the NFL’s unilateral power and emphasizes the unenforceability of the arbitration clause. Especially pressing here, what good are procedures if they are, seemingly, entirely optional (at least for one side)? The addition of the DRPG means that these agreements bear more resemblance to the arbitration agreements envisioned and protected by the [Federal Arbitration Act], but, as constructed by the NFL, the similarity to “real” arbitration agreements is an illusion. These are arbitral procedures in name only.
Judge Caproni has scheduled an April 3 mandatory pretrial conference and ordered the parties to submit a joint letter and proposed case management program by March 26—this Friday—effectively compelling the start of discovery in preparation for litigation.
The NFL’s employment arbitration system is at stake in both Caproni’s New York federal courtroom and in the Supreme Court, where the case also has been proceeding. Last month, the Atlantic Legal Foundation filed an amicus brief in support of the NFL, asking the nation’s top Court to take the case (available here). The quick amicus support is a bit unusual and worth noting following on the heels of the January petition. It is discussed below.
Earlier this month, Brian Flores, through his attorneys at New York’s Wigdor LLP, led by name partner Douglas H. Wigdor, responded to the NFL’s cert petition (filed by a Paul, Weiss, Rifkind, Wharton & Garrison team led by Washington partner Kannon Shanmugam and detailed at the first CPR Speaks link above). Flores urged the Court to deny the petition and uphold the Second Circuit (the brief is available on the Court's docket page, here).
Below is a summary of the main arguments in the opposition brief.
The Supreme Court case, New York Football Giants Inc., et al. v. Flores, No. 25-790, originates out of a racial discrimination class action lawsuit Flores, the former Miami Dolphins head coach, filed in 2022. In it, he alleges that the NFL and specific NFL teams—the Giants, the Denver Broncos, and the Houston Texans—participated in discriminatory hiring practices when he was interviewing for a new head coaching job.
Flores initially wanted to litigate the dispute in the courts. The NFL attempted to compel arbitration through an arbitration agreement. A Second Circuit panel, as noted above, unanimously held that the NFL cannot compel arbitration in Flores’ claims before the NFL’s commissioner, Roger Goodell—the process is enshrined in the league’s constitution--because the process was not genuinely neutral.
In response to the decision, the NFL filed a petition for certiorari at the Supreme Court in the first week of 2026 in an attempt to compel arbitration. The issue is 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.
If this case is picked up by the Supreme Court, it could fundamentally alter how arbitration clauses are created and interpreted in employment agreements throughout the business world. It also could address key issues of contract delegation, and fairness and neutrality standards. A Flores victory--and in this case, a cert denied order--could open the public’s access to private employment processes involving high-profile NFL owners and personnel via court discovery.
The Supreme Court has not yet set a conference date to consider the NFL’s appeal.
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In the March reply brief to the petition (discussed at the first CPR Speaks link above), Brian Flores first argues that the Supreme Court should not accept the case because there is no circuit split on this issue, so there is no inconsistency for the Court to resolve. It goes on to contend that the petitioner’s question presented is not important enough to warrant the Court’s review. It states,
Petitioners’ claim of importance rests on speculative extensions well beyond the question presented as to how they believe “judges will predictably view [the lower court decision as] boundless discretion” and “license” to reject enforcement of arbitration agreements in contravention of the FAA. Those hypothetical consequences are untethered to the facts of this case and the narrow question the petition asks this Court to review.
Furthermore, the brief asserts that this case is a poor vehicle because the Second Circuit decision is fact-specific and unique to the features of the NFL arbitration system—especially considering the commissioner’s role as an interested party to the case, while simultaneously serving as the arbitrator for the NFL’s arbitration program.
Therefore, the brief contends, the question presented is too narrow and lacks broader significance for the public or employers at large, rendering the case ill-suited for the Court’s review:
Even within professional sports leagues, the decision below does not implicate commissioner-based arbitration systems generally. The court of appeals did not announce any categorical rule invalidating commissioner-based arbitration in sports leagues; it addressed whether statutory employment discrimination claims may be adjudicated by the chief executive of an adverse party. The decision does not affect commissioner-based arbitration of collectively bargained disciplinary matters under the LMRA (i.e.[,] grievances filed by unionized players) or intra-league disputes concerning league rules or business affairs.
Next, the brief argues that the Second Circuit’s application of the effective vindication doctrine in ruling the Flores arbitration process is unenforceable does not warrant review because the analysis is aligned with this legal principle. “Courts of appeals and state supreme courts,” the respondent’s brief asserts, “have long held that an employer’s control over the arbitral forum, even when less extensive than here, renders the arbitration provision unenforceable.”
The brief’s concluding argument is that the Second Circuit’s decision is aligned with the Court’s Federal Arbitration Act precedent. Citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (available here), the brief notes that precedent demonstrates arbitration must provide a neutral and impartial forum, “particularly when federal statutory rights are at stake.”
Applying this logic, the brief argues that the Second Circuit accurately concluded that the NFL’s arbitration system—in using its commissioner as the arbitrator—does not reflect this principle of fairness as required by the FAA. The brief states:
This Court has repeatedly described arbitration as a substitute for bilateral judicial proceedings in which disputes are resolved by a neutral decisionmaker using neutral procedures, as cited below. [Citation omitted.] A system that requires statutory employment discrimination claims to be adjudicated by the chief executive of an adverse party falls well outside that understanding and therefore does not implicate any conflict of federal law warranting this Court’s review.
In sum, the brief argues that the Second Circuit correctly found that the NFL’s arbitration system, as controlled by the commissioner, is not real arbitration and cannot be used to block federal civil rights claims.
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At this writing, the sole amicus filing backs the NFL in urging the Court to take the case. The Atlantic Legal Foundation is a nearly 50-year-old national, nonprofit, public interest law firm with offices in Larchmont, N.Y., Washington, and Los Angeles. A frequent amicus participant in arbitration litigation at the Court, the conservative firm’s mission is to advance the rule of law and civil justice by advocating for individual liberty, free enterprise, property rights, limited and responsible government, sound science in judicial and regulatory proceedings, and effective education, including parental rights and school choice.
The brief first argues that federal statutory claims are generally arbitrable and that Supreme Court precedent supports this notion, citing Epic Sys. Corp. v. Lewis, 584 U.S. 497, 516 (2018) (available here). Moreover, the brief contends that the effective vindication exception is extremely narrow and only allows the courts to refuse to enforce an arbitration agreement if the arbitration provision or the federal statute expressly prohibits arbitration.
Therefore, the brief states, the Court’s precedent confirms that Flores’ federal 42 U.S.C. 1981 discrimination claims may be subject to arbitration. It also notes that nothing in the arbitration agreement between the parties precludes arbitration either.
Furthermore, the brief argues that Supreme Court precedent dictates that the effective-vindication exception forbids speculation about the arbitration proceeding. Thus, the Second Circuit erred when it based its ruling on a speculative view of the NFL commissioner’s lack of impartiality.
Instead, parties seeking to challenge arbitrator impartiality should first proceed with the adjudication of claims through arbitration, and then seek judicial review of the arbitration award under FAA Sec. 10. The reasoning relied on Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220 (1987) (available at https://bit.ly/4lQg1Hq). It summarizes the point, noting:
In short, the Second Circuit assumed too much in speculating that Respondent might have prospectively waived his federal statutory rights by agreeing to the arbitration requirement in the NFL’s constitution before any actions indicating ineffective vindication could arise.
Thus, the brief’s closing argument is that the Supreme Court should grant certiorari to prevent courts from making the same mistake the Atlantic Legal Foundation asserts the Second Circuit made, speculating about arbitration proceedings in violation of the Court’s precedents and the FAA’s purpose:
If left standing, the Second Circuit’s decision will pry wide open a narrow exception created by this Court without providing a workable standard or meaningful guidelines for lower courts to follow in determining whether federal statutory rights can be effectively vindicated in arbitration. This would promote inconsistent results among the courts, often in direct conflict with the purpose of the FAA. Courts would be substituting their own subjective beliefs about what arbitration should look like instead of following this Court’s precedents and honoring the parties’ contractual bargains. . . .
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The author is the CPR Institute’s 2025-2026 academic year intern from the Howard University School of Law ADR Program in Washington, D.C., where she is a second-year student.
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