By suing the NFL for systemic racial discrimination in the hiring, compensation, and retention of Black head coaches, Brian Flores has taken on a cause that sweeps well beyond his own personal interests, potentially sacrificing his future as a head coach in the process. That cause has now expanded to an even broader effort, one that stretches well beyond the NFL.
Major American companies have become smitten in recent decades with mandatory arbitration of employment disputes. It removes such cases from open court, and it keeps a jury of average citizens from having the obligation/opportunity to hold big businesses accountable.
The NFL routinely utilizes arbitration clauses, in order to avoid that external accountability. Unlike most employers, which will at least permit arbitration to be handled by an independent process, the NFL insists on a fully-rigged system that has the Commissioner or his representative handle claims made against the NFL or its teams. It’s a ridiculously obvious and troubling conflict of interest, given that the Commissioner is hired, paid, and retained by the 32 teams -- and that the Commissioner’s representative is hired, paid, and retained by the Commissioner.
The Dolphins already have tried to invoke the private, secret arbitration process in connection with the claims Flores has made against the team. Flores and his lawyers are pushing back. Inevitably, the other parties sued by Flores (NFL, Giants, Broncos, for now) will try to shoehorn his claims against them into arbitration, too. The court system will decide whether and to what extent Flores must submit his claims to arbitration.
Flores is broadening his attack on the NFL’s practices. On Monday, he’ll speak to the American Association of Justice regarding the Forced Arbitration Injustice Repeal Act, which will soon be considered by the U.S. House of Representatives. The bill, if passed, will prevent mandatory arbitration of racial discrimination claims.
Last month, the House and Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. The bill became law earlier this month. It bans companies from forcing victims of sexual harassment and sexual assault to pursue justice through arbitrations.
Flores will speak about the issue on Monday at 3:00 p.m. ET, with Rep. Hank Johnson (D-Ga.) and Dean Alexander Colvin, an expert on mandatory arbitration in racial discrimination cases.
The practice of forced arbitration has made it much harder for employees of American businesses to secure justice, which in turn makes it much easier for large companies to avoid accountability for misconduct. The NFL is among the biggest offenders, coupling mandatory arbitration with a kangaroo court that makes it even more difficult for employees whose rights have been violated to secure justice.
