Three months after Brian Flores filed his discrimination lawsuit against the NFL and several of its teams, lawyers for both sides met for the first time in a New York courtroom Monday.
The first issue on the table? Whether the lawsuit will stay there.
In a well-worn legal strategy, the NFL is trying to push Flores’ lawsuit out of the federal court system and behind closed doors, to a confidential arbitration proceeding. And judge Valerie Caproni decided Monday that she will rule on that part of the case before considering the crux of the lawsuit itself, which centers around allegations of discriminatory hiring and firing of Black coaches in the league.
Notably, Caproni also encouraged Flores’ team and the NFL to open settlement talks. They declined.
“This strikes me as a case that would benefit from settlement,” Caproni said at the conclusion of the hearing. “But if you’re not ready for that at this point, you’re not ready for that at this point.”
The Flores case, like others involving the NFL, seems destined for a lengthy legal war over the course of the next several months, if not years. And the first battle will now be a relatively mundane one concerning arbitration.
The NFL’s constitution – and the contracts that employees sign with teams – generally stipulate that disputes within the league be resolved privately, ostensibly as a way to make sure that potentially embarrassing scuffles remain in-house. So when these sorts of cases go to court, the NFL’s first step is usually to try to get them moved back to arbitration.
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Flores’ legal team argues that won’t work in this case because, among other things, the arbitrator in such a proceeding would be NFL commissioner Roger Goodell – the highest-ranking official in the entity that is being sued, whose salary is generated by team revenue. Flores’ attorney, Douglas Wigdor, said Monday that this would inject “unconscionable bias” to the process.
Wigdor also argued that the NFL itself is not subject to arbitration, just its teams, and that some of the claims in the lawsuit occurred at times when Flores was out of a contract and therefore not subject to any arbitration clause.
The NFL’s lead attorney, former U.S. Attorney General Loretta Lynch, countered by arguing that all of the claims in Flores’ lawsuit fit under the arbitration provisions set out in league documents.
“We feel that our arbitration process will set up a neutral process,” she said.
She also said NFL officials have invited Flores – and his two co-plaintiffs, Ray Horton and Steve Wilks – to meet with them to discuss the core issues in the lawsuit and how the league can address them, but they have declined. Wigdor said they would be happy to meet with the NFL, but only in the presence of an independent third party.
The arguments in the early stages of Flores’ lawsuit are similar to those in another ongoing NFL civil case in Nevada, filed by former Las Vegas Raiders coach Jon Gruden. The league is also trying to pull that dispute out of court and into arbitration. Both cases are expected to move slowly through the summer.
In Flores’ lawsuit, the next steps won’t be clear until August, after lawyers for both sides have had a chance to submit briefs on the arbitration issue. Wigdor said Monday that he would also ask for discovery, to obtain documents that he said will illustrate Goodell’s bias. Lynch doesn’t believe that is necessary.
Contact Tom Schad at email@example.com or on Twitter @Tom_Schad.