Coach Brian Flores: Forced arbitration is an unfair ‘rigged system,’ urges House to pass the FAIR Act
By Karen Ocamb, Director of Media Relations
“Forced arbitration really is the crux of why all forms of discrimination are so prevalent in this country — systemic racism and discrimination,” former Miami Dolphins head coach Brian Flores declared at a virtual press conference on March 14 in which he detailed his race discrimination class action lawsuit against the National Football League and three teams after his dismissal. With the Dolphins trying to force his case into arbitration, he called on NFL Commissioner Roger Goodell to “do what’s right” and let his case go to trial. Flores also called upon the U.S. House of Representatives to pass the Forced Arbitration and Injustice Repeal Act (FAIR Act), which would prevent federal courts from enforcing arbitration clauses in employment, consumer, antitrust and civil rights cases.
But Flores’ fight with forced arbitration and the NFL is not just a red alert for sports analysts and fans. It’s a clarion call to all those repulsed by discrimination and a blaring alarm for those who pushed “snooze” when signing their employment contract.
“There’s literally a system in place that uses forced arbitration, which essentially allows for discrimination to continue,” Flores, now a senior defensive assistant for the Pittsburgh Steelers, told reporters during the Zoom conference hosted by the American Association for Justice. The panel included Georgia Democratic Rep. Hank Johnson, author of the FAIR Act, along with Hakeem Jeffries of New York and Cornell University Dean Alex Colvin. “Forced arbitration allows employers to hide behind secret and confidential proceedings. The employer avoids scrutiny and avoids public accountability. And with this system in place — how can we believe that real justice and real change will occur?”
That system also silences employees. “Oftentimes, the employee just throws their hands up because they know it’s a rigged system where they can’t truly get justice,” Flores said. “I’ve seen it firsthand these past two months — coaches and executives who have pretty much thrown their hands up because they figured they’re going to be silenced anyway. And I notice it doesn’t just happen in football — it happens in all industries.”
Noting that his case “is much bigger than me,” Flores pointed out the inherent unfairness in the system. “We’re not talking about something that’s mutually agreed upon by two companies that are on equal footing,” Flores said. “Most workers don’t even know they’re subject to arbitration when they sign the contract. And those that are aware really have no bargaining power to negotiate their way out of it. They’re offered a job and part of accepting that job is signing these arbitration clauses. It’s really a take-it-or-leave-it situation.”
Flores was unaware of the forced arbitration clause when he signed his contract. “Becoming a head coach in the National Football League is something I dreamed about since I was a young man….I earned that opportunity through hard work, through dedication and on the precipice of becoming a head coach or earning an opportunity or getting a job — the last thing you’re thinking about is an arbitration clause that, if it all goes wrong or if you’re discriminated against, or if you’re wronged that you’re going to be forced into a setting where really the odds are stacked against you. That’s not what you’re thinking about,” he said.
“I didn’t know that accepting the position would mean accepting a forced arbitration situation. I think that’s the case for most Americans…I think it’s 60- plus million (workers). But the flip side of that is — even if I did know, where’s the bargaining power? Do I say, ‘No, I’m not going to take this job. I’m not going to take advantage of this opportunity that I worked so hard for?’ There’s an unfairness there. I mean, it’s obvious.”
“Forced arbitration really is the crux of why all forms of discrimination are so prevalent in this country — systemic racism and discrimination.”
But forced arbitration clauses are now ubiquitous. After a ticket scandal and massive lawsuit in 2016, for instance, Ticketmaster added a mandatory arbitration clause to its terms of use policy, to which every customer must agree before receiving service. If something goes awry or you receive bad service, you’re at the mercy of an arbiter picked by Ticketmaster who will decide the outcome in secret.
That’s a big issue for Flores. With forced arbitration, “my case will be litigated behind closed doors, confidentially and without transparency, essentially done in secrecy. With forced arbitration, there won’t be a jury of my peers who will hear my claims, which is one of the most important and fundamental rights we have in this country,” Flores said. “With forced arbitration, the transparency of public accountability that is integral to our judicial system is going to be absent. These are precisely the reasons why the Dolphins put my case in arbitration. They want to avoid a fair process. They want to avoid transparency. They want to avoid accountability. It’s our sincere hope that the commissioner will move away from forced arbitration.”
But, one reporter pointed out, as Commissioner for the NFL, Roger Goodell actually works for the league’s 32 owners, who prefer the secrecy of arbitration.
“I think Commissioner Goodell has the influence to do what’s right,” Flores replied. “Our hope is that he uses that influence to create the change, the diversity, the inclusion that he said publicly that he’s looking for the National Football League. I don’t think you can create that change in a secret setting, in a confidential setting. I think that change needs to happen in transparency and an open setting. I think he has an influence to make sure that happens.”
That may be wishful thinking. “The NFL routinely utilizes arbitration clauses in order to avoid that external accountability. Unlike most employers, which will at least permit arbitration to be handled by an independent process, the NFL insists on a fully-rigged system that has the Commissioner or his representative handle claims made against the NFL or its teams. It’s a ridiculously obvious and troubling conflict of interest, given that the Commissioner is hired, paid, and retained by the 32 teams — and that the Commissioner’s representative is hired, paid, and retained by the Commissioner,” Mike Florio noted on NBC Sports ProFootball Talk. “The court system will decide whether and to what extent Flores must submit his claims to arbitration.”
The NBC sports analyst added: “The practice of forced arbitration has made it much harder for employees of American businesses to secure justice, which in turn makes it much easier for large companies to avoid accountability for misconduct. The NFL is among the biggest offenders, coupling mandatory arbitration with a kangaroo court that makes it even more difficult for employees whose rights have been violated to secure justice.”
One solution to this obvious unfairness is the FAIR Act, which advocates like Public Justice hope will pass the House and the Senate will take up in swift positive action.
Flores noted that President Biden recently signed the law passed by a bipartisan Congress to ban forced arbitration for sexual harassment and sexual assault cases. “Now I’m no politician. I’m no lawyer. I coach football,” he said. But “if legislation was passed to ban forced arbitration for sexual assault, sexual harassment, why wouldn’t we do the same for race discrimination claims?”
Flores promised to be in the fight for the long haul. “I’m fortunate enough to be in a position where I can use my platform to bring awareness to the issue of race discrimination in the National Football League,” he said. “And as part of that effort, I strongly support the FAIR Act because it would end forced arbitration for all discrimination cases like mine…. I think we all will agree to this: without transparency, there can be no accountability and without accountability, we can’t create the change that we desperately need.”
