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Consistent with the Federal Arbitration Act (FAA), 9 U.S.C. § 2, the Atlantic Legal Foundation long has advocated for enforcement of contractual agreements to adjudicate commercial, employment, and other types of private-party disputes through arbitration.
The petitioners in New York Football Giants, Inc. v. Flores (25-790) are asking the Supreme Court to decide whether an arbitration agreement governing disputes in a professional sports league is categorically unenforceable under the FAA because it designates the league commissioner as the default arbitrator and permits the commissioner to develop arbitral procedures.
The Atlantic Legal Foundation, joined by the Washington Legal Foundation, have filed an amicus brief urging the Supreme Court to grant review. The brief was authored by Grant W. Hollingsworth and Brett S. Covington of Hollingsworth LLP.
Case Background
The respondent, Brian Flores, is a veteran National Football League coach. Along with two other current or former NFL coaches, Flores filed in the Southern District of New York a putative class alleging employment discrimination against the NFL and six of its member clubs. NFL teams’ employment 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 district court denied in part the defendants’ motion to compel arbitration, and the Second Circuit affirmed. The court of appeals held that the FAA does not require enforcement of the arbitration provisions in the NFL coaches’ employment contracts for two reasons. According to the court, (i) 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 (supposedly) would preclude the plaintiffs from pursuing their statutory Section 1981 employment discrimination remedies.
ALF's Amicus Brief
Citing Supreme Court precedent, the amicus brief explains that federal statutory claims can be adjudicated through contractual arbitration proceedings unless the federal statute or the arbitration provision forbids arbitration of statutory claims. The federal statute that Respondent Flores invokes does not prohibit arbitration. Indeed, the 1991 amendments to Section 1981 of the Civil Rights Act expressly encourage use of arbitration as an alternative means of dispute resolution.
The amicus brief further contends 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. The primary criterion is whether the federal statute expressly prohibits arbitration of the types of claims that the statute authorizes. The Second Circuit ignored these criteria, which do not apply to the plaintiffs’ claims in this case, i.e., do not render the plaintiffs’ contractual agreements to arbitrate unenforceable as a matter of public policy.
The brief emphasizes that the importance of the question presented transcends professional athletes’ contractual agreements to arbitrate employment disputes. If the Second Circuit’s dangerous and unprecedented opinion is allowed to stand, a judge’s subjective views of the fairness of an arbitration provision could result, despite the FAA, in refusal to enforce arbitration agreements in numerous commercial, professional, industrial, and other contexts.
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