The NFL-appointed arbitrator in the class-action racial discrimination lawsuit brought by Brian Flores is sitting on his hands and delaying the case, Flores and other members of the class say.
Flores sued the NFL, alleging chronic racism in the league’s hiring practice, in February 2022 after he was fired by the Dolphins and failed to land other head-coaching job. The sides have spent years battling over the appropriate venue for Flores’s claims; parts of the case are headed to open court while others are still set to be heard by a league arbitrator.
NFL commissioner Roger Goodell appointed Peter Harvey a year ago on September 17, 2024 to rule on the class action case brought by Flores, and his co-plaintiffs, now New York Jets defensive coordinator Steve Wilks and former defensive coordinator Ray Horton. Wilks alleges the Arizona Cardinals fired him because he is black, while Horton alleges the Tennessee Titans gave him a sham head coach interview to comply with the Rooney Rule, which requires teams to interview diverse candidates for head coach and GM openings. They contend the alleged discrimination is part of a historical pattern with the NFL.
Flores, now the defensive coordinator for the Minnesota Vikings, says that Harvey has done nothing in the year since he was appointed, not even responding to requests for prospective conflicts he might have in the judicial role. Flores alleges Harvey has effectively stayed the process, dragging the case out to the benefit of the NFL.
“Incredibly, 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,” Flores’s lawyers at Wigdor wrote. “Mr. Harvey effectively gave the NFL its desired stay through his inexplicable inaction.”
The NFL declined to comment.
The charges against Harvey were contained in a new motion filed by the plaintiffs Tuesday asking a New York federal court to reconsider its decision to force the coaching trio into arbitration, instead of court, in light of a recent 2nd Circuit Court of Appeals decision. The lower court sent the three coaches’ claims against their former employers—not their prospective ones—to arbitration because the contracts they signed included arbitration language.
Not all of Flores’s lawsuit against the league and six of its teams was ordered to arbitration by the lower court; the former Dolphins head coach’s charges against the Denver Broncos, New York Giants, and Houston Texans for allegedly conducting sham interviews to satisfy the Rooney Rule were allowed to stay in court.
The NFL appealed that decision, but the 2nd Circuit upheld the lower court ruling, saying that Flores and the three teams he interviewed with never signed contracts that would have contained arbitration language. The 2nd Circuit cited another reason: the “unconscionability” of commissioner Roger Goodell or one of his designees acting as arbitrator. This is essentially saying having Goodell or his designee arbitrate a case filed against the NFL and its teams is unfair and unenforceable.
The NFL plans to appeal the 2nd Circuit’s three-judge decision to the court’s full 13-judge bench, Flores’s lawyers wrote.
If the 2nd Circuit has reasoned it’s not fair for Goodell or his designee to act as arbitrator, then it should apply to the three coaches’ complaint sent to arbitration, Flores’ lawyers wrote. The NFL opposed the filing of the motion, Flores’ lawyers added.
They take particular issue with Harvey’s actions since his appointment. Harvey—a partner at Patterson Belknap Webb & Tyler—has ties to the NFL through his membership on a diversity committee. (The committee Harvey sits on was formed in the aftermath of the 2022 filing of the Flores lawsuit) He also has served in past arbitrator roles for the league, “which has likely resulted in substantial compensation.” Flores also requested potential conflict information from Bill Polian, the longtime NFL executive who Goodell assigned to advise Harvey, as well as from the commissioner himself.
“No response to that request was ever communicated,” Flores’ lawyers wrote. In a December 2024 letter to Flores’ lawyers, which was attached to Tuesday’s motion, NFL outside counsel Loretta Lynch wrote such disclosures are not legally required.
Areas of potential conflict Flores is seeking are laid out in a September 24, 2024 letter sent from Flores’ lawyers to Harvey, which is attached to yesterday’s filings. Among the 16 questions:
- “Have you had any professional or social relationship with counsel for any party in this proceeding or the firms for which they work?”
- “Have you or your law firm ever represented or provided professional services to any person or entity involved in the arbitration?”
“Given Mr. Harvey’s inaction and lack of communication, the litigations before him have not even moved to the very initial discovery stage,” Flores’ lawyers wrote. For some context, Flores filed his initial complaint three and a half years ago. “Mr. Harvey has completely abdicated and disregarded his responsibilities…and he has let the entire arbitration before him languish without any communication.”
Harvey may be waiting for the appeals process to play out to ensure he does not conduct an arbitral trial only for it to be overturned by an appellate decision. And now the plaintiffs themselves are asking the lower court judge to pull her arbitration order, which surely the NFL will underscore in seeking to postpone discovery.
