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NFL uses aggressive reading of its Constitution & Bylaws to argue for arbitration of all Brian Flores claims

Mike Florio gives an in-depth explanation of what the NFL's desire to force the entire Brian Flores case into secret arbitration means.

The NFL has, as it always does, filed paperwork aimed at forcing the claims made against it to the league’s in-house arbitration system, better known in these parts as a secret, rigged kangaroo court. Close inspection of the 25-page memorandum of law filed by the NFL earlier this week in the case filed by by Brian Flores, Steve Wilks, and Ray Horton reveals a very aggressive interpretation of the NFL’s Constitution & Bylaws, as part of an effort to force all of the claims out of court and into a process that is far more favorable to the league and its teams.

As to all three plaintiffs, the broad arbitration clauses contained in their employment contracts become the obvious basis for an effort to force arbitration. Flores, who worked for the Dolphins, has sued them for firing him. Wilks, who worked for the Cardinals, has sued them for firing him. Horton, who served as defensive coordinator of the Titans, has sued them for not making him the head coach. It will be difficult for them to avoid the duty to arbitrate; they’ll have to successfully attack the fundamentally unfair nature of the process. (And it is.)

But the case sweeps more broadly. Flores has filed claims against the Broncos, Giants, and Texans. He never worked for any of those teams. Thus, none can rely on the arbitration language appearing on a take-it-or-leave-it basis in the contracts team employees sign.

Instead, those teams rely on the NFL’s Constitution & Bylaws. They focus on two aspects of Section 8.3 of the document. Under Section 8.3(A), the Commissioner has “full, complete, and final jurisdiction and authority to arbitrate . . . [a]ny dispute involving two or more members of the League or involving two or more holders of an ownership interest in a member club of the League, certified to him by any of the disputants.” Section 8.3(B) gives the Commissioner the same power over "[a]ny dispute between any player, coach, and/or other employee of any member of the League (or any combination thereof) and any member club or clubs.”

The first argument is ridiculously weak, and it’s a prime example of the overlawyering that often happens in cases like this, when the lawyers are paid by the hour, handsomely. The teams basically contend that, because the claims made by the three plaintiffs involve “two or more member clubs,” the cases must be arbitrated.

This ignores the common-sense purpose of the provision. It’s there not to provide for a mechanism for resolving disputes between employees and teams. It’s there to provide a mechanism for resolving disputed BETWEEN TEAMS.

The second argument is stronger, relatively speaking. As to Flores, the teams contend that the claim made against the Broncos occurred when he was employed by the Patriots, and that his claims against the Giants and Texans (which arose when was not employed by any NFL team) became the subject of mandatory arbitration under Section 8.3(B) once he became employed by the Steelers. More broadly, the league claims that, because Flores cites systemic racism that has existed in the NFL for decades, the conduct of which he is complaining occurred while he was working for the Patriots and Dolphins, requiring him to resort to arbitration under Section 8.3(B) of the Constitution & Bylaws.

Both arguments under the Constitution & Bylaws seem flimsy. They arise from the NFL’s obvious desperation to steer all claims into its secret, rigged kangaroo court.

The process will continue with more written submissions, presumably oral argument, and inevitably a decision from the presiding judge. And if the NFL loses, expect the league to keep file appeal after appeal, until the case makes it way to the U.S. Supreme Court.