Attorneys In Brian Flores Suit Renew Attempt To Remove Claims Against Dolphins, Cardinals, And Titans From Arbitration

Vikings defensive coordinator Brian Flores is going back on the offensive in his class-action suit against the NFL and six of its teams. Per Daniel Kaplan of Front Office Sports, Flores and other members of the class allege that Peter Harvey, the arbitrator whom commissioner Roger Goodell appointed on September 17, 2024, is merely “sitting on his hands” in an effort to delay the proceedings.

Flores argues that Harvey has done nothing in the year since his appointment, including responding to requests regarding his own potential conflicts of interest. For instance, as Kaplan points out, Harvey has ties to the league thanks to his seat on the NFL diversity committee, which was formed in the wake of Flores’ suit. Harvey has also served as an arbitrator in other NFL matters, and Flores claims those appointments likely resulted in substantial compensation. In a December 2024 letter to Flores’ lawyers, NFL outside counsel Loretta Lynch said those types of conflict disclosures are not required by law.

In a recent motion that was filed in an effort to remove all of the Plaintiffs’ claims from arbitration and put them in court, Flores’ attorneys write, “[i]ncredibly, as of the filing of this motion for the court, Mr. Harvey has not issued any decision on the motion for arbitral disclosures, nor communicated with parties in any manner whatsoever regarding the proceedings. As such, the entire arbitration has been at a complete standstill and effectively stayed. Mr. Harvey effectively gave the NFL its desired stay through his inexplicable inaction.”

We heard last month that Flores’ claims against the league and three teams – the Broncos, the Giants, and the Texans – were allowed to proceed to court rather than remain in arbitration. In affirming that decision and ruling against the NFL, the Second Circuit Court of Appeals reasoned that Flores never signed contracts with mandatory arbitration language with those clubs (the basis for his claims against those three teams is that they allegedly conducted sham head coaching interviews to comply with the Rooney Rule). On the other hand, because Flores and co-Plaintiffs Steve Wilks and Ray Horton had signed contracts with the Dolphins, Cardinals, and Titans, respectively, and because those deals included a mandatory arbitration provision, the claims against that trio of teams remain in Harvey’s purview for the time being.

That has set up a new battlefront of sorts: while the NFL is appealing the Second Circuit’s three-judge decision to the court’s full 13-judge panel, Flores’ camp argues in its above-referenced motion to the trial court that the Second Circuit’s ruling with respect to the Broncos, Giants, and Texans – in which the appeals court held that it would be unconscionable for Goodell or one of his designees to act as an arbitrator in a case against the NFL and its teams – should also apply to the claims against the Dolphins, Cardinals, and Titans (contract language notwithstanding).

Of course, the league prefers the more sheltered arbitration setting, whereas Flores & Co. are seeking the more objective arena of an open courtroom. That venue dispute has dragged on since the suit was filed three-and-a-half years ago, and it apparently will continue for at least a while longer.

In underscoring the amount of time that has passed with little by way of substantive movement in the litigation, Flores’ lawyers wrote, “[g]iven Mr. Harvey’s inaction and lack of communication, the litigations before him have not even moved to the very initial discovery stage. Mr. Harvey has completely abdicated and disregarded his responsibilities…and he has let the entire arbitration before him languish without any communication.”

The NFL has opposed the Plaintiffs’ motion but has declined public comment on it.