Flores v. The National Football League

Background

Brian Flores, Steve Wilks, and Ray Horton sued the National Football League and several member teams. The opinion says the plaintiffs are current and former coaches and assert racial-discrimination and retaliation claims under 42 U.S.C. § 1981 and several state laws.

In an earlier order, the court granted in part and denied in part the defendants’ motion to compel arbitration. The court ordered arbitration of Ray Horton’s claims against the Tennessee Titans, Steve Wilks’s claims against the Arizona Cardinals, and Brian Flores’s claims against the Miami Dolphins, along with related claims against the NFL. It denied arbitration of Flores’s claims against the New York Giants, Denver Broncos, and Houston Texans, along with related claims against the NFL. The court later denied requests to reconsider that ruling.

The defendants appealed the portions of those orders that denied arbitration. The plaintiffs cross-appealed the portions that compelled arbitration and separately asked the district court to certify two legal issues for an immediate, mid-case appeal under 28 U.S.C. § 1292(b).

Issues for Proposed Appeal

The plaintiffs asked the court to certify: (1) whether an arbitration agreement not produced through collective bargaining is unfair and therefore unenforceable when it names a supposedly biased party representative as the arbitrator for statutory discrimination claims; and (2) whether the effective-vindication doctrine makes such an agreement unenforceable. The effective-vindication doctrine is a court-created exception to arbitration enforcement intended to prevent an agreement from prospectively giving up a party’s right to pursue statutory remedies.

Under § 1292(b), certification requires a controlling legal question, a substantial basis for disagreement about that question, and a likelihood that an immediate appeal would materially advance the end of the litigation. Even when those requirements are met, the district court may deny certification, and the opinion notes that immediate appeals are generally disfavored and reserved for exceptional circumstances.

Court’s Analysis

The court held that the proposed issues were not sufficiently pure or controlling legal questions. A pure legal question is an abstract legal issue that an appeals court can decide quickly without studying the factual record. The court said resolving the plaintiffs’ unconscionability argument would require examining the NFL Commissioner’s role and statements, the language of the employment contracts, the absence of collective bargaining, and the distinct arbitration agreements. “Unconscionability” means that an agreement is so unfair or oppressive that it should not be enforced.

The court reached a similar conclusion about the effective-vindication issue. The plaintiffs’ proposed question assumed that the NFL Commissioner was biased, but the court said determining whether bias existed and how extensive it was would require examining the Commissioner’s role, conduct, and the parties’ agreements. The court therefore characterized the proposed issues as involving a fact-specific mixture of legal and factual analysis rather than abstract legal questions.

The court also rejected the plaintiffs’ argument that there was a substantial basis for disagreement. It said that the absence of a decision directly addressing the precise question from the Supreme Court or the Second Circuit does not, by itself, establish a substantial disagreement. According to the court, Second Circuit precedent had already rejected the argument that the NFL Commissioner could not fairly arbitrate claims concerning the NFL’s conduct as a matter of law. The court also said the Supreme Court had not recognized alleged structural bias in an arbitration agreement as a basis for applying the effective-vindication doctrine.

Instead, the court explained, federal law protects against biased arbitrators by allowing an arbitration award to be overturned for “evident partiality or corruption,” rather than necessarily preventing arbitration before it begins. The court further noted that the Federal Arbitration Act expressly permits immediate appeals from orders denying arbitration but not from orders granting motions to compel arbitration. The plaintiffs could still argue to the Second Circuit that it had related appellate jurisdiction over their cross-appeal.

Finally, the court concluded that certification would not materially advance the litigation. It reasoned that the Second Circuit might affirm the existing decision or decline to hear the proposed appeal, which could cause delay rather than avoid it. The court did not decide whether it had jurisdiction to grant the plaintiffs’ motion because it denied the motion on the stated grounds.

Disposition

The court denied the plaintiffs’ motion to certify the two arbitration-related issues for appeal to the Second Circuit. It directed the clerk to close the motion at Docket Entry 119. This order ruled on the request for immediate appellate certification; it did not decide the ultimate racial-discrimination or retaliation claims.