OT: Supreme Court says Flores vs. NFL should be heard in court, not by arbitrator

[upstater1]

https://www.espn.com/nfl/story/_/id/48881804/supreme-court-intervene-brian-flores-suit-vs-nfl

This just reaffirms that the New York appellate court that overturned the judge in the Brady vs. NFL case, a court that did not bother to even read the lawsuit, was wrong.

The NFL cannot act as its own judge and jury.

 

[Mike the Brit]

https://www.espn.com/nfl/story/_/id/48881804/supreme-court-intervene-brian-flores-suit-vs-nfl

This just reaffirms that the New York appellate court that overturned the judge in the Brady vs. NFL case, a court that did not bother to even read the lawsuit, was wrong.

The NFL cannot act as its own judge and jury.

No, I don't think so.

As I recall, the jurisprudence that allowed Goodell to do what he wanted, however unjust, is pretty robustly anchored in U.S. law (for instance, in Garvey vs MLB Players Association).

The crucial point in the Second Circuit’s eventual ruling against Brady was essentially: Roger Goodell had almost unlimited discretion as arbitrator under the CBA. The Second Circuit emphasized that courts cannot “second-guess” the arbitrator on the merits. The question was only whether the arbitration process crossed the minimal legal thresholds required under federal labor law.

In this case, the courts decided that some of Flores' dispute, as a coach, was not covered by an arbitration agreement with the NFL, unlike Brady's as a player. So it could be taken to court.

 

[Thelonious]

I haven't followed this matter because I despise lawsuits and, as a rule, the lawyers perpetrate them. What in summary does Flores assert to be the basis of his suit, or is the basis mere avarice or some sort of ideologically-ratified hustle?

 

[upstater1]

No, I don't think so.

As I recall, the jurisprudence that allowed Goodell to do what he wanted, however unjust, is pretty robustly anchored in U.S. law (for instance, in Garvey vs MLB Players Association).

The crucial point in the Second Circuit’s eventual ruling against Brady was essentially: Roger Goodell had almost unlimited discretion as arbitrator under the CBA. The Second Circuit emphasized that courts cannot “second-guess” the arbitrator on the merits. The question was only whether the arbitration process crossed the minimal legal thresholds required under federal labor law.

In this case, the courts decided that some of Flores' dispute, as a coach, was not covered by an arbitration agreement with the NFL, unlike Brady's as a player. So it could be taken to court.

It wasn't so cut and dry.

We read lots of articles in the ensuing days as to why the Appellate court was in error.

 

[XLIX]

The initial ruling, as upheld by the appeals court, basically states that any arbitration presided over by Roger Goodell is no arbitration at all. Sure seems to me that the same logic applies to the Brady case. Fact is 4 federal judges ruled on Brady's case; 2 for Brady and 2 for the NFL. Brady losing that decision was as much the luck of the draw as anything else.

Excerpt from the Flores ruling below:

The Second Circuit concluded that Flores’ agreement to submit his claims to the discretion of the designated arbitrator, NFL Commissioner Roger Goodell, provides for arbitration in name only and, accordingly, lacks the protection of the FAA. Second Cir. Op. The agreement is, therefore, unenforceable because it fails to guarantee that Flores can “vindicate [his] statutory cause of action in [an] arbitral forum.”
The NFL’s unilateral control over the dispute resolution process is the fatal flaw.

 

[BTTA]

It wasn't so cut and dry.

We read lots of articles in the ensuing days as to why the Appellate court was in error.

Yes there were many articles. Most of them were uninformed speculative echo chamber drivel. The weren't a measure of the cost cases.

 

[UGAPatsfan]

Part of me hopes Flores buries the owners. Waaaay too much unilateral power that few other industries enjoy

 

[upstater1]

Yes there were many articles. Most of them were uninformed speculative echo chamber drivel. The weren't a measure of the cost cases.

No. Wrong. One of them was by someone who frequently advocates in front of the Supreme Court. Specifically, I'm talking about the ramifications for labor law where companies in the past tried to install the very same thing the NFL had and they applied it in bad faith. The I can remember from back then specifically cited the NFL case as one that pushed against settled cases in labor law and which would have a very negative impact on collective bargaining in the future.

 

[BTTA]

No. Wrong. One of them was by someone who frequently advocates in front of the Supreme Court. Specifically, I'm talking about the ramifications for labor law where companies in the past tried to install the very same thing the NFL had and they applied it in bad faith. The I can remember from back then specifically cited the NFL case as one that pushed against settled cases in labor law and which would have a very negative impact on collective bargaining in the future.

When you say "one of them" in response to "most of them" you make the case for me. And when you start with "no" and "wrong" you make if clear you've no interest in a worthwhile conversation.

In all that the point you make about the virtue in a narrative penned by a single lawyer gets lost.

 

[upstater1]

When you say "one of them" in response to "most of them" you make the case for me. And when you start with "no" and "wrong" you make if clear you've no interest in a worthwhile conversation.

In all that the point you make about the virtue in a narrative penned by a single lawyer gets lost.

Well, there are two posts here saying the whole thing was cut and dry.

I'm saying it wasn't.

The fact that the first judge found in favor of Brady should've been enough to tell us it wasn't so cut and dry. In fact, that judge found deliberate malfeasance from the NFL. The appellate court was actually quoted stating facts that were completely debunked by that point, which made it clear they hadn't even read through the case they delivered judgment on.

Berman was rarely reversed on appeals.

This is the first thing that came up when I searched just now for legal takes:

The Second Circuit Court of Appeals’ decision in the NFL’s "Deflategate" case is widely viewed by legal scholars as questionable because it sidestepped the actual evidence of the alleged infractions. Instead, it deferred broadly to the unilateral disciplinary powers granted to the Commissioner under Article 46 of the Collective Bargaining Agreement. [1, 2, 3]
The appellate ruling remains controversial among legal experts for several key reasons:

• Lack of Evidence: The lower court initially overturned the suspension because there was no credible evidence that Tom Brady was aware of or participated in deflating footballs. The appellate court reinstated the penalty without ever determining if Brady actually committed the act.
• Extreme Deference to the Arbitrator: The court ruled 2-1 that, under the Collective Bargaining Agreement, Roger Goodell had practically limitless authority to act as an arbitrator in his own disciplinary rulings.
• Procedural Unfairness: Critics point out that the NFL’s arbitration process was highly inconsistent. The league punished Brady heavily for a "lack of cooperation," even though there were no prior league rules explicitly stating that destroying a cell phone would result in a four-game suspension.
• Arbitrary Penalty Scaling: The punishment was equivalent to penalties handed out to players for using performance-enhancing drugs, creating a major discrepancy in how player conduct was penalized under league rules. [1, 2, 3, 4, 5, 6, 7]

The decision is frequently taught in law school as an example of extreme judicial deference to private arbitration agreements in sports and employment law. You can explore the full breakdown of the case and its legal implications through ESPN's Deflategate coverage or the Villanova Sports Law Journal. [1, 2]

The biggest legal nugget among experts in the case was this...

The article at issue here (Article 46, Commissioner Discipline) does not actually mention arbitrators or arbitration at all. Instead, it lays out a process for handling certain disputes and “action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football,” such as occurred here. The article gives the Commissioner power to appoint one or more hearing officers of his choosing.

Legal scholars attack the appellate decision precisely because it is NOT a case of arbitration. There is no neutral arbitrator involved AND the actual CBA with the NFLPA on this issue of hearings about player conduct contains no language about arbitration. As many legal scholars see it, the deference given to arbitration in labor law circles doesn't apply here because this isn't arbitration.

AND, here is just one among many law review articles you'll find on the decision showing the ongoing legal debate:

https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=3004&context=llr

By the way, the appeals court decision was a 2-1 decision. So, not only Berman disagreed with the NFL's take on the CBA, but one of the Appellate judges did as well.

After the Appeals court decision, Brady's lawyers asked for an en banc review, given the different viewpoints of the 4 different judges that had decided the case. The en banc review was denied, and the case ended.

Given the disagreement between the 4 judges, and the ensuing articles discussing the controversy over the case, it's pretty clear to me that it was anything but cut and dry.

 

[Thelonious]

Employers should be able to hire and fire employees for whatever reason they may choose. "Employees rights" should play no role in such decisions. If you find yourself working for a company whose policies you find odious, get another job. If you are a customer of a company whose policies - of whatever sort - you find objectionable, take your business elsewhere. Let the market - the job market or whatever market is relevant - decide matters pertaining to that market. We need a radically smaller and less intrusive government. Lawyers are parasites on any body politic. The sicker that body, the more abundant and influential are the parasites. It has ever been thus, inescapably, whatever pleasing delusions or self-interested contrivances and straegems you may care to offer. Such stuff can never work. The unintended consequences are always more powerful - and damaging - than are the comparatively minor benefits to society which might accrue. I would invite to consider the results the Great War on Poverty, the net, actual effects of efforts at achieving an improved condition for blacks, the War on Drugs, and on and on. Get your head out of the sand. Deal with what is and with what must inevitably be.

 

[PatMan]

The initial ruling, as upheld by the appeals court, basically states that any arbitration presided over by Roger Goodell is no arbitration at all. Sure seems to me that the same logic applies to the Brady case. Fact is 4 federal judges ruled on Brady's case; 2 for Brady and 2 for the NFL. Brady losing that decision was as much the luck of the draw as anything else.

Excerpt from the Flores ruling below:

The Second Circuit concluded that Flores’ agreement to submit his claims to the discretion of the designated arbitrator, NFL Commissioner Roger Goodell, provides for arbitration in name only and, accordingly, lacks the protection of the FAA. Second Cir. Op. The agreement is, therefore, unenforceable because it fails to guarantee that Flores can “vindicate [his] statutory cause of action in [an] arbitral forum.”
The NFL’s unilateral control over the dispute resolution process is the fatal flaw.

Ahhhh... So there it is. The courts actually didn't have a problem with the absurdity of Goodell being judge, jury, and defendant in the case. It was the fact that he had never ruled against the NFL in arbitration.

 

[Triumph]

The owners/NFL will settle this quietly and make it go away.

Timing is everything. Reach the start of the 2026 NFL regular season when nobody is watching this and do whatever is necessary to extinguish the fire once and for all.

 

[upstater1]

Employers should be able to hire and fire employees for whatever reason they may choose. "Employees rights" should play no role in such decisions. If you find yourself working for a company whose policies you find odious, get another job. If you are a customer of a company whose policies - of whatever sort - you find objectionable, take your business elsewhere. Let the market - the job market or whatever market is relevant - decide matters pertaining to that market. We need a radically smaller and less intrusive government. Lawyers are parasites on any body politic. The sicker that body, the more abundant and influential are the parasites. It has ever been thus, inescapably, whatever pleasing delusions or self-interested contrivances and straegems you may care to offer. Such stuff can never work. The unintended consequences are always more powerful - and damaging - than are the comparatively minor benefits to society which might accrue. I would invite to consider the results the Great War on Poverty, the net, actual effects of efforts at achieving an improved condition for blacks, the War on Drugs, and on and on. Get your head out of the sand. Deal with what is and with what must inevitably be.

This is a political statement. Thought we had no politics here?

 

[Triumph]

Flores legal counsel is asking all 32 teams to provide 24 years of employment documents.

They are insinuating that "racism" is systemic across the entire NFL and that teams are actually colluding to ensure the alleged condition remains intact.

BB is involved after he texted Flores by mistake offering congrats to Daboll on the NYG job. Flores had not even interviewed yet. You have to wonder if Mayo will join the fray dragging Kraft into this mess ? Also, Eric Bienemy who has had his share of NFL employment problems.

 

[Gumby]

Employers should be able to hire and fire employees for whatever reason they may choose. "Employees rights" should play no role in such decisions. If you find yourself working for a company whose policies you find odious, get another job. If you are a customer of a company whose policies - of whatever sort - you find objectionable, take your business elsewhere. Let the market - the job market or whatever market is relevant - decide matters pertaining to that market. We need a radically smaller and less intrusive government. Lawyers are parasites on any body politic. The sicker that body, the more abundant and influential are the parasites. It has ever been thus, inescapably, whatever pleasing delusions or self-interested contrivances and straegems you may care to offer. Such stuff can never work. The unintended consequences are always more powerful - and damaging - than are the comparatively minor benefits to society which might accrue. I would invite to consider the results the Great War on Poverty, the net, actual effects of efforts at achieving an improved condition for blacks, the War on Drugs, and on and on. Get your head out of the sand. Deal with what is and with what must inevitably be.

While I don’t disagree with you philosophically; the fact that the nfl is a Govt sanctioned monopoly (arena & cfl don’t count) makes this industry different.

Part of the problem that Flores is addressing is the Rooney rule. While it was an obvious problem that 75% of players were black and only 1% of coaches, the artificial rule drove all these bogus interviews. IMHO “ public shaming” is /would have been a much stronger and effective motivation than the absurd parading of candidates with no effective chance at an offer. If the NFL had issued minority hiring grades in March and Sep each year with a ranking of all 32 teams and a threshold (say 25%, that you could raise over time) then any team below the threshold was fined or got a cap cut or just would receive INTENSE NFL SCRUTINY. IMO that would have treated minorities on an equal hiring plane with respect and not as cardboard props for the hiring carousel.

 

[1960Pats]

Employers should be able to hire and fire employees for whatever reason they may choose. "Employees rights" should play no role in such decisions. If you find yourself working for a company whose policies you find odious, get another job. If you are a customer of a company whose policies - of whatever sort - you find objectionable, take your business elsewhere. Let the market - the job market or whatever market is relevant - decide matters pertaining to that market. We need a radically smaller and less intrusive government. Lawyers are parasites on any body politic. The sicker that body, the more abundant and influential are the parasites. It has ever been thus, inescapably, whatever pleasing delusions or self-interested contrivances and straegems you may care to offer. Such stuff can never work. The unintended consequences are always more powerful - and damaging - than are the comparatively minor benefits to society which might accrue. I would invite to consider the results the Great War on Poverty, the net, actual effects of efforts at achieving an improved condition for blacks, the War on Drugs, and on and on. Get your head out of the sand. Deal with what is and with what must inevitably be.

I'm no law expert but it seems like an employee under contract would have to have some kind of a contractual violation to be fired. I don't think an owner could say that he's firing a player just because he wants to.

 

[Froob]

Employers should be able to hire and fire employees for whatever reason they may choose. "Employees rights" should play no role in such decisions. If you find yourself working for a company whose policies you find odious, get another job. If you are a customer of a company whose policies - of whatever sort - you find objectionable, take your business elsewhere. Let the market - the job market or whatever market is relevant - decide matters pertaining to that market. We need a radically smaller and less intrusive government. Lawyers are parasites on any body politic. The sicker that body, the more abundant and influential are the parasites. It has ever been thus, inescapably, whatever pleasing delusions or self-interested contrivances and straegems you may care to offer. Such stuff can never work. The unintended consequences are always more powerful - and damaging - than are the comparatively minor benefits to society which might accrue. I would invite to consider the results the Great War on Poverty, the net, actual effects of efforts at achieving an improved condition for blacks, the War on Drugs, and on and on. Get your head out of the sand. Deal with what is and with what must inevitably be.

You have a lot of faith in the ethics of employers. Sounds nice, but ultimately you gotta put bread on the table.

 

[Thelonious]

While I don’t disagree with you philosophically; the fact that the nfl is a Govt sanctioned monopoly (arena & cfl don’t count) makes this industry different.

Part of the problem that Flores is addressing is the Rooney rule. While it was an obvious problem that 75% of players were black and only 1% of coaches, the artificial rule drove all these bogus interviews. IMHO “ public shaming” is /would have been a much stronger and effective motivation than the absurd parading of candidates with no effective chance at an offer. If the NFL had issued minority hiring grades in March and Sep each year with a ranking of all 32 teams and a threshold (say 25%, that you could raise over time) then any team below the threshold was fined or got a cap cut or just would receive INTENSE NFL SCRUTINY. IMO that would have treated minorities on an equal hiring plane with respect and not as cardboard props for the hiring carousel.

I favor withdrawal of the anti-trust exemption: BOTH sides should learn to live in a free market, which would redound to the benefit of both sides and, more importantly. to the benefit of the fans, the customers of this market. As for league rules, they should be entirely at the discretion of them members of that voluntary association but must avoid, apropos in way of ending the a-t exemption, collusion which prevents free and fair operation of the market, including the labor market. At that point I will not claim it is a simple matter. A salary cap, for example, does prevent teams from freely competing on the basis of what it will pay in salary, but it also (somewhat) ensures fair competition on the field; and a shared agreement among the teams as to what they will pay does not allow players to move freely from option to option within that labor market. So I would not object to restrictions on what is permitted by either side along these line. But to see the players as "oppressed workers" and the teams as cruelly exploitive plutocratic enities in a circumstance in which their employess are nearly all multi-millionaires is about as asinine and unreflective a view as I can think of.

 

[Thelonious]

I'm no law expert but it seems like an employee under contract would have to have some kind of a contractual violation to be fired. I don't think an owner could say that he's firing a player just because he wants to.

Idf there is an actual contract, yes, either individual or through c9llectibe bargaining. Any tlk of an "implied contract" is perilous nonsense, however, as it is merely an extra-legal contrivance for government. judicial meddling in the labor market, which ought to be a free one. for both sides.