Flores Can Go to Court as Second Circuit Slams the NFL’s Arbitration Scheme

In dynamic professional sports settings, one thing always seemed certain: the National Football League's dominance in public discussion, television ratings, and on the nation’s betting apps. 

But this season, the league itself took a big hit in another forum. It wasn’t on the field either, but in a courtroom.

The Second U.S. Circuit Court of Appeals, like the NFL headquartered in New York, handed the league a major loss in its long-running arbitration case with former coach Brian Flores, whose discrimination suit has become one of the most-watched cases in employment law as well as sports law.

A quick playback: Flores, who is Afro-Latino, is considered one of the NFL’s top defensive coordinators at the Minnesota Vikings.  He also is a former Miami Dolphins head coach who filed suit against the NFL and multiple teams in early 2022, alleging racial discrimination in hiring and retention practices.

The league, true to its Constitution and history, tried to send the complaint into arbitration—a home turf move because Commissioner Roger Goodell would act as the arbitrator.

Yes, the NFL Commissioner, who acts as the league’s chief executive, and the head of one of the defendants—Flores and his two fellow plaintiffs, former NFL employees, originally filed suit against as many as six teams as well as the league--would also be the stripped referee.

A federal district court did not strike all of the ADR claims, but arbitration on key Flores discrimination claims was not permitted to go forward. The court allowed arbitration only for some claims (those against the Miami Dolphins, Arizona Cardinals, and Tennessee Titans, and related claims against the NFL, which included claims by the two other NFL staffers) but denied it for others (the Flores claims against the Denver Broncos, New York Giants, Houston Texans, and the NFL on related claims). 

The NFL appealed to the Second Circuit, arguing that Goodell’s arbitration authority should stand for all of the claims. The appellate court affirmed the lower court ruling and rejected the NFL’s arbitration scheme. Flores v. N.Y. Football Giants Inc., et al., No. 23-1185 (2d Cir. Aug. 14, 2025) (available at https://bit.ly/47nnJBP).

On Oct. 6, the Second Circuit rejected the NFL’s motion for en banc reconsideration.

Translation: the NFL’s arbitration clause is flagged as unenforceable—and not even the Federal Arbitration Act could save it.

Why? Because, in the Second Circuit’s view, the “arbitration” provision in the NFL Constitution wasn’t really arbitration meriting FAA protection at all. It handed unilateral control to Goodell, an interested party with every incentive to protect the league and himself. That setup, the appeals court stated, violates the essence of neutral dispute resolution.

In the panel’s words, in a unanimous opinion written by Circuit Judge José A. Cabranes, “[s]imply labeling something as ‘arbitration’ does not automatically bring it within the ambit of the FAA’s protection.” [Internal citation omitted.]

In other words, slapping an “arbitration” sticker on a process that looks like one-sided adjudication doesn’t make it an ADR process. The court went further, warning that allowing such a process “offends basic presumptions of our arbitration jurisprudence by submitting Flores’s statutory claims to the unilateral substantive and procedural discretion of the ‘principal executive officer’ of one of his adverse parties, the NFL.”

The Second Circuit also noted that the arbitration clause effectively stripped Flores of his ability to vindicate his statutory rights before a neutral forum—especially given that his contracts with the Giants, Texans, and Steelers all incorporated the same flawed provision. Even though those contracts were under different teams, the NFL couldn’t compel arbitration under an invalid framework.

So, what does this mean for the league? For an institution that has spent decades controlling its image and product in dealing with its internal disputes through its own arbitration system, this ruling is more than just a loss—it’s a wake-up call. The appeals court’s message is simple: even billion-dollar leagues have to play by the same rules as everyone else when it comes to fairness and neutrality.

Will the NFL appeal to the Supreme Court? Possibly. Kannon K. Shanmugam, a partner in New York’s Paul, Weiss, Rifkind, Wharton & Garrison, who argued the Second Circuit case on the NFL’s behalf, didn’t return call or emails asking if a certiorari petition would be filed with the nation’s top Court after the en banc rehearing request was denied. His adversary, David E. Gottlieb, a partner in New York’s Widgor LLP who represents Flores, also didn’t respond to email and telephone requests for comment.

There is no filing in the U.S. Supreme Court on the case yet; a cert petition would be due within 90 days—the first week in January--under Supreme Court Rule 13. Both sides have strategic reasons for going forward. Flores would prefer to keep all his claims in open court, while the NFL may still want to try to defend its in-house arbitration playbook.

But for now, the Second Circuit made it clear that the Commissioner can’t be both referee and quarterback.

And in this game, at least for now, Brian Flores has the lead.

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The author, a Fall 2024 CPR Intern, graduated from Brooklyn Law School in May and last month passed the New York State Bar Examination and will practice in New York. Alternatives editor Russ Bleemer contributed to the research for this blog post. 

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