Ex-Dolphins coach Brian Flores cries foul over NFL’s forced arbitration practice, backs bill to ban it

‘Without transparency there can be no accountability,’ Flores says

Brian Flores led the Miami Dolphins to winning seasons before his firing in January. He sued the NFL for racial discrimination. (Michael Reaves/Getty Images file photo)
Brian Flores led the Miami Dolphins to winning seasons before his firing in January. He sued the NFL for racial discrimination. (Michael Reaves/Getty Images file photo)
Posted March 14, 2022 at 6:02pm

Pittsburgh Steelers linebackers coach Brian Flores dialed up an all-out blitz against forced arbitration Monday, joining a virtual news conference rallying support for a bill to ban the practice.

The National Football League appears set to enforce an arbitration clause in Flores’ employment agreement that would move out of the public spotlight a racial discrimination lawsuit that Flores, who is Black, filed against it and three teams.  

“With forced arbitration, my case will be litigated behind closed doors, confidentially, and without transparency, essentially done in secrecy,” Flores said. “Without transparency there can be no accountability, and without accountability, we can’t create the change we desperately need.”

Flores called on Congress to air it out and pass a bill introduced by Georgia Democratic Rep. Hank Johnson that would prevent federal courts from enforcing arbitration clauses in employment, consumer, antitrust and civil rights cases. The House is expected to vote later this week on the legislation.

Johnson said he hopes Flores’ case will raise the profile of this issue, much like Gretchen Carlson’s lawsuit against then-Fox News CEO Roger Ailes focused attention on forced arbitration in sexual harassment cases. Carlson was prevented from also suing Fox by an arbitration clause in her employment contract.

Earlier this month, President Joe Biden signed a law to ban arbitration in sexual assault and harassment cases. That legislation had broad bipartisan support, but at a Judiciary Committee markup of Johnson’s bill in November, only one Republican on the committee, Rep. Matt Gaetz of Florida, voted to advance the bill to the floor. A companion bill in the Senate has 39 co-sponsors, but none are Republicans.

Flores recognized Congress will have to punt on the issue without more backers.  

“I’m no politician, I’m no lawyer, I coach football,” said Flores. “But I know you need support from both sides to get something passed.”

Congress started allowing companies to enter contractual arrangements that would let them settle business disputes without resorting to the courts in 1925, when it enacted the Federal Arbitration Act. Lawsuits can take years and juries don’t know business, the argument went, so why not let a pre-selected panel of corporate lawyers hear a truncated argument and decide?

In recent decades, however, mandatory arbitration clauses have snuck their way into all sorts of take-it-or-leave-it agreements, like employment contracts or the terms and conditions for using a product. Critics say the provisions effectively prevent consumers, employees and small businesses from seeking legal redress when a huge corporation harms them.

Forced arbitration is one of those issues voters don’t like — 87 percent of Republicans and 83 percent of Democrats polled in 2019 supported banning the practice — but also don’t think about much. While the American Association for Justice, which advocates for trial lawyers, reported a 17 percent increase in cases closed by forced arbitration in 2020, that still amounts to just about 19,000 forced arbitrations with consumers and employees. It’s not an issue that affects many voters, even indirectly, even though an estimated 60 million workers are subject to arbitration clauses.

As the Miami Dolphins head coach from 2019 to 2021, Flores led a mediocre roster to the franchise’s first back-to-back winning seasons since 2003. After last year’s 9-8 finish, his firing earlier this year shocked fans. Flores filed a lawsuit seeking class-action certification in February, alleging racial discrimination against the NFL, the Dolphins and two other teams that he interviewed with for open head coach positions.

Flores said those teams, the New York Giants and Denver Broncos, never seriously considered hiring him. Before his interview, Flores received a text from Patriots head coach Bill Belichick congratulating him for getting the job — but Belichick had meant to text another former assistant of his, Brian Daboll, whom the Giants announced hiring soon afterward. Flores said the Broncos management team showed up to his interview late and hung over.

The NFL and the teams all deny the allegations.

Monday’s news conference was a Hail Mary of sorts, aimed at trying to shame the NFL into not forcing Flores into arbitration and at inspiring Republicans to back Johnson’s bill.

Companies like arbitration because it’s usually faster and cheaper than going through a lawsuit. They can also keep settlement terms quiet by demanding non-disclosure agreements. A public lawsuit can inspire other aggrieved consumers or employees to demand their own recompense, so arbitration helps corporations avoid more lawsuits. It similarly means the settlement amounts are kept secret, making it harder for plaintiffs to know what a “fair” offer looks like. 

Arbitration tends to favor corporations — the AAJ notes that from 2016 to 2020, just 5.3 percent of consumers won awards in arbitration, while less than 2 percent of employees won. The plaintiffs’ bar has long argued this is in large part because attorneys serving on arbitration panels have an economic interest in siding with corporate defendants to ensure more work in the future, while arbitration’s defenders say this only proves how frivolous most of these claims are.

The NFL in 2003 instituted a policy, known as the Rooney Rule, requiring teams to interview candidates of color for head coaching and other senior positions. Pointing to the continued dearth of Black head coaches in a sport where 70 percent of the players are Black, Flores and civil rights groups like the NAACP have called on the NFL to replace the Rooney Rule with something stronger.