For years, the NFL has utilized a unique system of handling many potential legal claims made by non-players against the teams and/or the league. In this specific context, “unique” means “secret, rigged, kangaroo court of arbitration.”
All coaches and plenty of other team and league employees sign contracts that require them to submit any disputes to arbitration ultimately controlled by the Commissioner, who is hired and paid by the league and its teams. (And when the contract doesn’t do the trick, the league will resort to the NFL’s Constitution and Bylaws to argue that such matters can’t be resolved in open court.)
The practice has taken multiple hits over the past year, with high-profile rebukes from both the Nevada Supreme Court (as to Jon Gruden’s lawsuit against the NFL and the Commissioner) and the U.S. Court of Appeals for the Second Circuit (as to Brian Flores’s lawsuit against the NFL, the Dolphins, the Giants, the Broncos, and the Texans).
Most recently, the NFL filed a petition for appeal to the United States Supreme Court in the Flores case, teeing up the question of whether the practice is legitimate under the Federal Arbitration Act. (The next step is for the Supreme Court to decide whether to even take the case.)
During Monday’s Super Bowl press conference, Jarrett Bell of USA Today asked Commissioner Roger Goodell for his response to the contention that he can’t be fair and impartial in resolving such disputes.
“Some of this is legal, Jarrett, which I’ll let the lawyers discuss, but I would just tell you from a broader standpoint, arbitration is a part of what we have between our clubs and the league and the Commissioner’s responsibility between individuals who are under contract, and the Commissioner’s role,” Goodell said. “So it is part of the Commissioner’s role, has been, and continues to be, and is an important element in getting resolution to issues so that we can move forward without unnecessary litigation. So, beyond that, I’ll leave it to the lawyers to go from there.”
The lawyers will argue in court that the practice is legally justified. But the Commissioner’s answer is clear. He’s basically saying “it was like that when I got here.”
The core question is whether any company should be allowed to compel arbitration of legal disputes to be resolved by, essentially, its CEO. Many American businesses use arbitration as an alternative to litigation. Nearly all of them designate an external arbitrator, with no ties to either side.
The NFL has persisted, for decades, in its belief that it’s proper for the Commissioner to preside over these disputes. It’s inherently impossible for the Commissioner to be truly fair and impartial, even if he’s trying to be. His bread is amply buttered by one of the parties to the dispute.
Judges routinely recuse themselves from any case that presents even the slightest possibility for an actual or perceived conflict of interest. Plenty of judges will step aside based on something as simple as knowing one of the parties socially.
So, no, the Commissioner cannot be fair and impartial. And the NFL shouldn’t want to put the Commissioner in that spot, if the league is interested in true justice being done.
The broader concern is that, if the league gets a license from the Supreme Court to handle legal disputes in this manner, other companies will decide to do the same thing, making it even harder for people whose rights have been violated to get a truly fair and impartial resolution to their grievances.
For the NFL, it’s not about justice. It’s about avoiding the costs of going to court, keeping potentially embarrassing facts from becoming public, and ensuring that, at the end of the day, The Shield will deflect any and all slings and arrows.
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