On Monday, Brian Flores will speak to the American Association of Justice about repealing forced arbitration in cases of racial discrimination. Forced arbitration allows American companies to avoid the court system, instead taking a lawsuit through a closed investigation that is never heard by a jury and, by nature, the process lacks transparency.
Just last month, Congress banned forced arbitration in cases of sexual harassment and assault, and the House is set to consider a similar bill that would repeal forced arbitration in racial discrimination cases like Flores’ — an arbitration that the Miami Dolphins have already asked the NFL to pursue, rather than allowing Flores’ class action lawsuit to go through the justice system.
The Dolphins aren’t the only organization named in the lawsuit — executives from the New York Giants and the Denver Broncos are also being sued, along with the league itself. As PFT’s Mike Florio pointed out, the NFL has certainly not shied away from using (and abusing) forced arbitration in the past and has notoriously hidden or obscured the results of their kangaroo court. Rather than hiring independent arbitrators, these cases are handled by the commish and his representatives, resulting in shitstorms like the one we’ve been watching come out of Washington this past year.
So is there any chance that the NFL rejects the Dolphins’ request for arbitration? Any chance they let this go to court? Maybe I’m being too optimistic, but with the visibility of this case as well as the NFL’s recent record on racial issues, I think they might forgo arbitration with this.
If they’re so confident that the lawsuit is “without merit,” as they’ve continued to insist, what’s the harm in taking it to court for the league? They have more than enough money to pour into a defense fund, and with where the league’s PR image is at this point, transparency might be the best course of action.
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“If the NFL is truly committed to ‘ending racism,’ as it has repeatedly claimed, the league will reject Miami’s request for arbitration,” wrote Flores’ lawyer in a letter to Roger Goodell. “Race discrimination cannot be eradicated behind closed doors and the integrity of the game depends on transparency.”
Obviously, rejecting the arbitration request is the right thing to do, and Flores’ case should be heard in the courts, but the NFL doesn’t always go off the “right” thing to do (see, again: WFT investigation). So I want to look at this from the perspective of a league that, in the past year alone, has pushed sexual harassment allegations under the rug, allegedly leaked Jon Gruden’s racist emails, dealt with a star quarterback lying about his vaccination status, and more. It hasn’t exactly been a banner year. What if this was the league’s chance to go to court, actually own up to something, and deal with whatever consequences resulted from the proceedings?
America’s most visible organization may even be able to score some points in the public eye by legitimately taking a look at their hiring practices and the discrimination that Flores has pointed out and making real changes. Not only do they avoid an inevitable repeat of this lawsuit that will undoubtedly be brought up within the next decade or so if the league’s hiring practices don’t change, they can separate themselves from the so-called “bad apples” of the league (eg, Gruden).
Of course, this argument doesn’t work if the “bad apples” aren’t, as Gruden claims, individual outliers, but instead scapegoated representatives of a larger system whose views they reflect. But the NFL sending this case to forced arbitration would essentially be an admission of guilt, out of which no concrete, legitimate change would come. They’ll investigate, they’ll say that no one in the history of the league has ever been racist and act shocked that anyone could accuse them of that, and Flores’ case will be buried. But just about everyone will know that it’s a cover-up, a way out of any actual accountability.
In a statement provided by his lawyer, Flores wrote:
There are currently ongoing legislative efforts to end forced arbitration for claims of race discrimination, which I fully support. I would hope that the NFL and Dolphins would also support those efforts. Commissioner Goodell now has a choice to make. Will he allow this case and future race discrimination claims to play out in a transparent and public legal process, or continue along the same unacceptable path?
He’s backing Goodell into a corner here — but the commish will, in the end, do whatever is in the best interest of the owners. Maybe this time, though, their best interest will actually align with doing the right thing.