Insights & Events

Hollingsworth LLP, as counsel for the Atlantic Legal Foundation (ALF) and Washington Legal Foundation (WLF), filed an amicus curiae certiorari petition in support of the National Football League (NFL) urging the Supreme Court to review the Second Circuit’s decision denying the NFL’s motion to compel arbitration of an NFL coach’s employment claims.

The petitioners in New York Football Giants, Inc. v. Flores (25-790) are asking the Supreme Court to review the Second Circuit’s decision holding an arbitration agreement governing disputes in a professional sports league is categorically unenforceable under the Federal Arbitration Act (FAA) where it designates the league commissioner as the default arbitrator and permits the commissioner to develop arbitral procedures.

The respondent, Brian Flores, is a veteran National Football League coach who, along with other coaches, filed a putative class action in the Southern District of New York alleging employment discrimination against the NFL and six of its member clubs. NFL teams’ contracts with coaches include an arbitration provision that covers employment disputes. The arbitration provision incorporates by reference the NFL Constitution, which designates the NFL Commissioner (or his designee) as the default arbitrator and authorizes him to adopt arbitration procedures.

The Second Circuit affirmed the district court’s denial in part of the defendants’ motion to compel arbitration. The Second Circuit held: (1) the contracts require arbitration “in name only” because there is not enough independence between the NFL Commissioner and the parties, and (ii) the federal common law “effective vindication” exception to the FAA applies as a matter of public policy because the arbitration provision at issue would preclude coaches from pursuing their statutory Section 1981 employment discrimination remedies.

As also noted in a Law360 article, Hollingsworth LLP’s cert petition focuses on the Second Circuit’s erroneous application of the effective vindication exception to the FAA. Citing Supreme Court precedent, the amicus brief explains that NFL coaches’ Section 1981 federal statutory claims can be adjudicated through contractual arbitration proceedings unless the federal statute or the governing arbitration provision forbids arbitration of statutory claims. The cert petition outlines in detail how Section 1981 in fact encourages alternative dispute resolution, including arbitration.

The cert petition also focuses on Supreme Court precedent holding that the effective vindication exception to the FAA does not provide a judge with the discretion to decline to enforce a contractual arbitration provision merely because he speculates that conducting an arbitration might be unfair to one of the parties. Instead, the Supreme Court has established specific criteria for applying this narrow exception, criteria that the Second Circuit ignored.

As argued in the amicus brief, “[b]y conjuring a parade of horribles that might happen during an arbitration proceeding, the Second Circuit’s decision risks encouraging other courts to disfavor or reject the enforcement of contractual arbitration provisions.” The Second Circuit’s decision “is contrary to the FAA’s ‘overarching principle that arbitration is a matter of contract’ . . . and that courts must ‘rigorously enforce’ an arbitration provision according to its terms.” The amicus brief cautions that “[i]f left standing, the Second Circuit’s decision will pry wide open a narrow exception created by this Court without providing a workable standard of meaningful guidelines for lower courts to follow in determining whether federal statutory rights can be effectively vindicated in arbitration.”

Hollingsworth LLP continues to be at the forefront of protecting its clients’ agreements to arbitrate, along with its partners at ALF and WLF.  The case is