Flores v. NFL and the Unraveling of “Arbitration in Name Only”: The Second Circuit’s Landmark Ruling and Its National Implications
Introduction
On August 14, 2025, the United States Court of Appeals for the Second Circuit issued a watershed decision in Flores v. New York Football Giants, Inc., No. 23-1185-cv, marking a turning point for employer-driven arbitration in high-stakes employment discrimination cases within the NFL and, potentially, all U.S. workplaces. The court held that agreements requiring aggrieved coaches to submit claims to arbitration exclusively before the NFL Commissioner—who wields “unilateral substantive and procedural discretion” and is the chief executive of an adverse party—constitute “arbitration in name only” and are unenforceable under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–16. This decision exposes the NFL to public litigation and potentially massive liability, while also signaling a shift in the judicial treatment of one-sided arbitration clauses nationwide.
Factual and Procedural Background
Brian Flores, a prominent Black NFL coach, brought a putative class action lawsuit under 42 U.S.C. § 1981 and related statutes, alleging systemic racial discrimination by the NFL and several member franchises. The employment contracts at issue embedded the NFL Constitution and empowered the NFL Commissioner with “full, complete, and final jurisdiction and authority to arbitrate” employment disputes (NFL Constitution art. VIII, § 8.3). Analogous provisions appeared throughout similar NFL employment contracts, encompassing other coaches such as Steve Wilks and Ray Horton. The NFL moved to compel arbitration, relying on these contractual provisions. The district court denied the motion, finding that such arbitration was illusory and unconscionable under Massachusetts law and, by incorporation, federal law as well (Flores v. Nat’l Football League, 658 F. Supp. 3d 198, 214–15 (S.D.N.Y. 2023)). The NFL appealed, bringing the question of enforceability under the FAA squarely before the Second Circuit.
“Arbitration in Name Only”: The Second Circuit’s Reasoning
The Second Circuit, in a unanimous opinion by Judge Cabranes, held unequivocally that the NFL’s arrangement—making the Commissioner the sole adjudicator of employment civil rights disputes to which he is functionally an interested party—“provides for arbitration in name only and accordingly lacks the protection of the Federal Arbitration Act” (Slip op. at 28). The court emphasized that the FAA vigorously enforces only those arbitration agreements that ensure independence, bilateral procedural fairness, and the effective vindication of statutory rights (Viking River Cruises, Inc. v. Moriana, 596 U.S. 639, 653, 657–58 (2022); Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 940 (4th Cir. 1999)). Merely labeling a process “arbitration” does not invoke FAA protection if it lacks impartiality, fixed procedures, or a neutral forum (Heckman v. Live Nation Ent., Inc., 120 F.4th 670, 691 (9th Cir. 2024) (VanDyke, J., concurring)).
Notably, the Second Circuit rejected the NFL’s argument that appointing an “independent” arbitrator post hoc (here, a league insider) could cure the constitutional structure’s bias, holding that the defect is structural and not susceptible to unilateral employer correction (Slip op. at 23–24).
Effective Vindication Doctrine and Statutory Rights
Relying upon the Supreme Court’s “effective vindication” doctrine, the court reaffirmed that arbitration agreements must enable claimants to meaningfully pursue statutory rights. Agreements that serve as a “prospective waiver of a party’s right to pursue statutory remedies” are invalid and unenforceable (Am. Exp. Co. v. Italian Colors Rest., 570 U.S. 228, 235 (2013) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985))). The NFL’s approach, by granting its top executive unchecked authority over both the substance and procedure of “arbitration,” systematically undermined the fundamental right to a fair hearing, and thus could not be saved by reference to state contract law or custom (Slip op. at 19–26).
Impact and Implications
The Second Circuit’s decision signals that sports leagues and major employers must ensure truly neutral dispute resolution mechanisms if they wish to enforce arbitration provisions for statutory claims. Internal procedures that allow an employer, or its agent, to act as sole arbitrator are likely void under the FAA. By sharply distinguishing collectively bargained arbitration (with neutral, mutually-selected arbitrators) from one-sided procedures, the court preserves meaningful arbitration while invalidating the most egregious forms of employer control (see Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 820 F.3d 527, 536 (2d Cir. 2016)). This precedent will likely embolden courts, employees, and labor organizations to challenge superficially neutral but structurally biased arbitration programs.
Likelihood of Consolidated Appeal with Gruden's Case
A major procedural development on the horizon is the likelihood of consolidation with Jon Gruden’s similar high-profile challenge. Gruden v. National Football League, now pending following a Nevada Supreme Court decision unfavorable to the NFL (see Gruden v. Nat’l Football League, No. 85833-COA, 2024 WL 1111527 (Nev. Ct. App. Mar. 6, 2024)), features parallel allegations regarding forced arbitration before the NFL Commissioner. With both the Second Circuit and Nevada Supreme Court refusing to enforce employer-controlled arbitration for statutory discrimination claims, the cases create strong grounds for Supreme Court review to resolve discordant interpretations of FAA scope (see Sup. Ct. R. 10(a)-(b); Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 581 U.S. 246, 250 n.1 (2017)). Though the cases arise from distinct jurisdictions—federal and state—both present core questions about the validity of the NFL’s arbitration regime under the FAA, making joint, or at minimum coordinated, consideration by the U.S. Supreme Court likely should the parties timely seek certiorari.
Likelihood of Settlement After Appeal to the Supreme Court
The prospect of settlement looms largest in the event that the Supreme Court either denies certiorari or affirms the adverse lower decisions in Flores and Gruden. Should these outcomes stand, the NFL would effectively lose its long-standing ability to channel discrimination and major employment claims into confidential, league-controlled arbitration. The consequences would be immediate and far-reaching: a wave of public litigation could see compensatory—and, potentially, punitive—damages running to hundreds of millions or even billions of dollars, as individual, class, and collective actions proceed to trial under 42 U.S.C. § 1981 and related statutes. Given these extraordinary stakes, it is almost certain that, before permitting such exposure, the NFL will exhaust every appellate possibility, including Supreme Court review under 28 U.S.C. § 1254(1). Only if the Supreme Court denies review or upholds the lower court results would settlement on a global, high-value scale become truly likely, as the league seeks to control its financial and reputational risks in a now-public judicial process. The Supreme Court’s eventual ruling—by affirmance, reversal, or even summary disposition—will thus likely determine both the contours of settlement and the future of league and employer-driven arbitration nationwide.
Conclusion
Flores v. NFL decisively marks the end of “arbitration in name only” for statutory employment disputes in professional sports and potentially across other major industries. By holding that the FAA protects only genuinely neutral, mutually fair, and procedurally sound arbitration forums, the Second Circuit both exposes the NFL to unprecedented litigation risk and sets a binding example for American employers at large. The Supreme Court’s involvement—especially in combination with the Gruden saga—will determine whether these decisions remain geographically limited or become national law, but the message is clear: the era of unchecked, employer-run arbitration for civil rights claims is coming to a close.
To see the Second Circuit’s full decision, please see below.
Flores v. New York Football Giants, Inc., No. 23-1185-cv, slip op. (2d Cir. Aug. 14, 2025) (located at https://law.justia.com/cases/federal/appellate-courts/ca2/23-1185/23-1185-2025-08-14.html).
