More SCOTUS Arbitration: The NFL’s Reply Brief to Flores
By Sasha Hill
There have been important updates in the multi-court case between the National Football League and Minnesota Vikings defensive coordinator Brian Flores. New York Football Giants Inc., et al. v. Flores, No. 25-790.
The petitioners--the league, the New York Giants, and other teams--filed a reply brief in the U.S. Supreme Court on March 25.
That same day, the Court scheduled an April 17 conference date to consider the petition for certiorari in the discrimination suit.
The case has come before the Court as another arbitration matter, which has heard two in the past two weeks. See Sasha Hill & Russ Bleemer, “Supreme Court Hears Case on Federal Courts’ Powers to Confirm Arbitration Awards,” CPR Speaks (March 30) (available here), and Sasha Hill & Russ Bleemer, “Today’s SCOTUS Arguments on Limiting the Federal Arbitration Act Sec. 1 ADR Exemption,” CPR Speaks (March 25) (available here).
The NFL and the teams are seeking to reinstate their employment arbitration program, which was struck down by the Second U.S. Circuit of Appeals. Russ Bleemer, “NFL Files #Scotus Appeal to Overturn Brian Flores' Win that Struck the League's Arbitration Process,” CPR Speaks (Jan. 7) (available here).
The Supreme Court filing came in the face of trial proceedings, scheduled to proceed last month, that were initiated by New York U.S. District Court Judge Valerie Caproni in the wake of the Second Circuit’s remand. See Sasha Hill, “The NFL & Flores: Litigation Begins While Supreme Court Readies Arbitration Review,” CPR Speaks (March 25) (available here).
The N.Y. Football Giants case arises out of an employment discrimination suit filed by Brian Flores in February 2022, where he alleged discrimination and racism in the league’s hiring and promotion practices. The former Miami Dolphins head coach had either been under consideration or interviewing for several new head coaching positions.
Last August, the Second Circuit ruled that the claim could be litigated in court rather than arbitrated in a decision that strongly condemned the NFL’s employment arbitration process. Stephanie Argueta, “Flores Can Go to Court as Second Circuit Slams the NFL’s Arbitration Scheme,” CPR Speaks (Nov. 14, 2025) (available here).
In response, the NFL filed the January cert petition.
Below is a summary of the main arguments in the March 25 petitioners' reply brief. The issues in the original petition by the NFL and the teams were noted in the Jan. 7 CPR Speaks post linked above; Flores’ reply brief, as well as an amicus brief supporting the league’s request for the Court to take the case, was discussed in detail the March 25 post, also linked above.
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The NFL’s reply brief argues that the Second Circuit erred in holding that the NFL Constitution does not provide for arbitration within the meaning of the Federal Arbitration Act and that the NFL employment arbitration scheme violates the effective-vindication doctrine as applied to federal statutory claims.
On the contrary, the brief asserts that the lower court’s decision is irreconcilable with the FAA’s text and history for several reasons.
First, the brief argues that during the time of the FAA’s enactment, it was commonplace for courts to enforce arbitration agreements with an arbitrator that was affiliated with one of the parties, or an arbitrator that actually was one of the parties.
In Flores’s case, NFL Commissioner Roger Goodell was designated to serve as the arbitrator. As the case proceeded, the league and teams appointed Peter Harvey, of counsel in New York's Patterson Belknap Webb & Tyler and a former New Jersey Attorney General, to arbitrate the case.
Second, the petitioners point out that the Second Circuit’s holding that the NFL’s Constitution doesn’t provide arbitration under the FAA did not apply solely to claims involving federal statutory rights—such as Flores’ employment discrimination claim in the current case—but also claims under state and local law.
Indeed, the brief notes that the panel’s decision did not mention employment discrimination with regard to that holding. Thus, the response brief argues the Second Circuit’s ruling is too broad and creates a federal arbitration law question with wide implications far beyond its applicability to the case and the NFL..
The brief cites the seminal holding in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (available here)--that states federal statutory claims are presumptively arbitrable and that the ordinary rules governing arbitration agreement enforcement also apply—to demonstrate that the Second Circuit ruling’s targeting of employment arbitration was invalid. The brief asserts the “Respondent identifies nothing in any federal employment-discrimination statute that reverses those presumptions.”
In fact, Respondent Flores previously argued that courts have held a neutral and impartial forum is necessary to qualify as arbitration under the Act, but provided no case law that supports that notion, according to the NFL:
To the extent the decisions cited by respondent actually resolved neutrality challenges to arbitration agreements, each applied either the effective-vindication doctrine (incorrectly . . . ) or state contract law to do so. The court of appeals’ decision went much further, setting up the question of neutrality as a threshold requirement for deciding whether the Arbitration Act applies at all. That was wrong. [Citations to Court papers omitted.]
The brief goes on to claim that the Court’s precedents further weakens Respondent Flores’s arguments. Citing Gilmer, 500 U.S. at 30, the brief points out that the Supreme Court held courts cannot assume parties are unable to select the appropriate arbitrator to resolve their disputes.
Citing Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018) (available here) and American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013) (available here), the brief notes the Court has held that parties can choose with whom they would like to arbitrate disputes and the rules the arbitration will follow:
But none of those decisions held that the type of arbitral forum dictates a party’s ability to second guess its previous agreement to particular arbitration procedures. Instead, as respondent readily admits, each case applied the principle where a party “later attempted to challenge the fairness of the forum it had agreed to.” . . . The principle plainly applies here, where respondent—a highly compensated, sophisticated party who signed multiple NFL coaching agreements over the course of his career—is attempting to unwind his agreement to arbitrate his claims before the NFL Commissioner. [Citation omitted.]
Furthermore, the brief notes that the FAA under 9 U.S.C. 10(a)(2)—which permits courts to vacate an award where there was clear bias toward one side—demonstrates that arbitration with a biased arbitrator is still considered real arbitration under the Act. It states, “Were it otherwise, it is hard to see how Section 10(a)(2) could ever apply to an award by a non-neutral arbitrator; after all, the proceeding resulting in the award would not constitute arbitration to which the Act could apply.”
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The NFL and the teams’ response brief also criticizes the Second Circuit’s use of the effective-vindication doctrine, stating it only applies to arbitration agreements that forbid a party’s right to pursue a suit.
The effective vindication doctrine is a limited judicial exception to the FAA in which courts may invalidate arbitration agreements that prevent a party from pursuing their statutory remedies—high costs alone weren’t sufficient to prohibit parties from vindicating their rights under the American Express Co. v. Italian Colors case linked above.
The Supreme Court petitioners contend they are not blocking Flores’ suit nor his ability to pursue federal statutory rights—they are simply saying their agreements compel arbitration proceedings, first.
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Another major argument made in the brief is that the Second Circuit’s decision is inconsistent with “numerous decisions upholding the authority of sports-league commissioners to serve as arbitrators for disputes arising out of the operation of sports leagues,” and that the respondent does not adequately reconcile the conflicting holdings from many of these cases.
For example, in Charles O. Finley & Co. v. Kuhn, 569 F.2d 527 (1978) (available here), the Seventh Circuit relied on the broad principle that parties may decide to waive their recourse to the court within an agreement.
The brief also argues that Flores asserts Williams v. NFL, 582 F.3d 863 (8th Cir. 2009) (available here)—where the court applied the same principles to arbitration agreements governed by the Labor Management Relations Act and those governed by the FAA–only applies to labor disputes. The response brief disagrees, noting that nothing in Williams says its reasoning depends on labor law.
The brief also contends that the respondent tries to distinguish his case from NFL Players Ass’n v. NFL, 831 F.3d 985 (8th Cir. 2016) (available here), on the reasoning that it only concerns post-award review, not pre-arbitration conflicts. Yet, the brief argues, “Respondent does not explain why those principles would apply differently on the front end than the back end. And none is apparent.”
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The response brief emphasizes that the question presented in this case is “exceptionally important” for the Supreme Court to review and adjudicate:
Whether an arbitration agreement governing disputes in a professional sports league is categorically unenforceable under the Federal Arbitration Act because it designates the league commissioner as the default arbitrator and permits the commissioner to develop arbitral procedures.
Countering the respondent’s argument that the Second Circuit’s decision does not concern commissioner-based arbitration systems generally, the NFL and the teams assert that if the decision were applied more broadly, it will empower courts to declare arbitration agreements unenforceable if the courts deem the procedures are not aligned with the FAA.
The brief points out that the Second Circuit’s holding--that the NFL’s arbitration procedures are not genuine arbitration under the FAA--is based on an “amorphous conception of procedural adequacy that has no roots in the Act’s text or history.”
The response brief argues that the appellate court holding could have far-reaching consequences on the professional sports industry, beyond just the NFL:
Respondent also downplays the significant discretion that the court of appeals’ rule would provide if adopted more broadly. But the decision below contains no inherent limiting principle; it mints a novel federal unconscionability doctrine that allows a court to declare an arbitration agreement unenforceable whenever it finds the procedures to be “unworthy” of the [FAA]’s protection. The obvious consequences of the broad adoption of such a rule are highly unlikely to be “hypothetical.” [Citations to Court papers omitted.]
Next, the brief replies to the respondent’s argument that this case is a poor vehicle for the Court’s review because the NFL’s arbitration system isn’t genuine arbitration under the FAA, and because it violates the effective-vindication doctrine. The respondents counter that these two reasons are not independent of one another, but are based on the same logic and that the question presented in this case encompasses them both. Thus, if the Court grants review, it can resolve the entire case and both arguments, at once.
In closing, the brief asserts that the respondent’s argument that if the Court took the case it would have to remand it to the court of appeals to resolve other issues, is no reason to declare the case unfit for review—this phenomenon of remanding cases to lower courts is a “recurring feature of the Court’s merits docket” and is not valid reasoning for declaring a case a poor vehicle for review.
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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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