Skirmish erupts in Brian Flores case over appointment of arbitrator

Vikings defensive coordinator Brian Flores filed a landmark lawsuit against the NFL and multiple teams in February 2022. More than two and a half years later, much of the case is still stuck at square one.

Part of the case is finally starting to move toward square two. Which has sparked a skirmish as to the portion of the case that remains stuck at square one.

Flores has sued the NFL, the Dolphins, the Giants, the Broncos, and the Texans. Horton has sued the Titans. Wilks has sued the Cardinals.

Some claims have landed in arbitration. Other claims are pending before the U.S. Court of Appeals for the Second Circuit as to the question of whether they should be arbitrated. One of the arguments made by Flores and his co-plaintiffs (Steve Wilks and Ray Horton) relates to the question of whether Commissioner Roger Goodell should be permitted to resolve disputes involving the teams that employ and compensate him.

On Tuesday, the NFL sent a one-page letter to the appeals court for the express purpose of “bring[ing] to the Court’s attention that, on September 17, 2024, NFL Commissioner Roger Goodell exercised his discretion to appoint the Honorable Peter C. Harvey as the arbitrator over the claims in this case that the district court ordered to proceed in arbitration.”

That same day, Flores’s lawyers responded with a letter that accused the league of “attempt[ing] to falsely create an appearance of impartiality in the arbitration proceedings.”

The letter attacks Goodell for making the threshold decision that the dispute is or is not “football-oriented.” If it is football-oriented, Goodell resolves it; if it’s not, the dispute goes to third-party arbitration. Flores’s lawyers contend that the league’s in-house policies specify that a dispute is not “football-oriented” if it is “a dispute relating to or arising out of discrimination, wage and hour or family and medical leave issues.”

“Mr. Goodell self-servingly determined that the dispute was ‘football oriented’ and kept the administration of the dispute in-house at the NFL,” the Flores letter alleges.

The letter then explains that Goodell’s appointment of Peter Harvey, who will be assisted by former NFL G.M. Bill Polian, does not cure the bias.

“Mr. Harvey has an ongoing professional relationship with the NFL, including being a member of the Diversity Advisory Committee created in response to the filing of the Flores lawsuit in a purported effort to address the racial inequities set forth in this action,” the letter asserts. “Mr. Polian is a lifelong NFL executive, having worked in management for at least four different teams over more than 40 years. Together, Mr. Harvey and Mr. Polian’s relationships and connections to the NFL and its member teams, and its lawyers, is sure to be extensive.”

As we’ve said before, Goodell should not want to be responsible for these decisions. Goodell’s insistence to control the outcome of cases involving the league and its teams — and the league’s obsession with confidentiality of the proceedings — creates the impression that the NFL maintains a secret, rigged, kangaroo court.

Even if the courts are inexplicably going to allow it, the public needs to understand how the league handles its internal business. Basically, it’s the equivalent of allowing one of the two teams in a football game to appoint its own employees to serve as the on-field officials.