Brian Flores’ suit against the NFL and six of its clubs is inching forward; sort of. Although the league is presently attempting to secure United States Supreme Court review of the Second Circuit Court of Appeals’ decision that Flores’ claims against the Broncos, Giants, and Texans shall be heard in open court rather than remain in arbitration, the presiding trial court judge has denied the league’s request to stay the matter pending a SCOTUS resolution (per sports business reporter Daniel Kaplan). In other words, even as the “arbitration versus open forum” battle continues to play out, the underlying proceeding – which was filed over four years ago – has been allowed to continue into its next phases.
This represents another win for Flores, the current defensive coordinator of the Vikings, and co-plaintiffs Steve Wilks and Ray Horton. Successfully removing a lawsuit against the NFL from the hands of an NFL-appointed arbitrator and into the more objective purview of a trial court judge is obviously critical, and now the league will need to start defending the case on a more substantive level.
Of course, the NFL could still prevail on its last-ditch effort to keep the case in arbitration. In order for that to happen, however, SCOTUS would first need to grant the league’s pending petition to hear the appeal and would then need to rule in the league’s favor, both of which are far from sure things. According to Mike Florio of Pro Football Talk, a decision as to whether the highest court in the land will hear the appeal will be made within the next month or so (but that is only for the Broncos, Giants, and Texans portion of the suit; the league’s efforts to keep the Dolphins, Cardinals, and Titans portion of the claim in arbitration were denied more recently, and the NFL will likely try to obtain SCOTUS review of that decision as well).
This case has now officially evolved into a war on two fronts, and Flores & Co. have also made a potentially-significant addition to their request for relief. As Kaplan details, the plaintiffs are amending their complaint to include a count under Title VII of the 1964 Civil Rights Act, which banned discrimination on the basis of race, color, religion, sex, and national origin.
As sports attorney Chris Deubert explains, the Title VII count is significant because it allows a successful plaintiff to recover even if he cannot prove intent. Rather, recovery is still possible as long as the plaintiff can prove a policy that is race-neutral on its face has a discriminatory impact in practice.
The addition of the Title VII count was not made earlier in part because of the lengthy battle over the proper venue and in part because the plaintiffs had to receive a “right to sue” letter from the Equal Employment Opportunity Commission, which was not issued until June 2024. With hundreds of NFL head coaching hires having been made over the course of league history, Kaplan believes Flores will have a statistically-significant sample to draw from and will thus stand a good chance of prevailing on his “disparate impact” claim.
After interviewing for head coaching jobs with three different clubs this year, Flores will remain in Minnesota on a $6MM salary. That may make him the highest-paid coordinator in the league, but the former head coach of the Dolphins still wants another opportunity to run a team.