It didn’t take long for the U.S. Court of Appeals for the Second Circuit’s Aug. 14 ruling on Minnesota Vikings defensive coordinator Brian Flores’ employment discrimination case to impact arbitration in other pro leagues.
On Aug. 18, U.S. District Judge Denise Cote cited Flores v. New York Giants as a reason to deny arbitration for claims brought by former NBA referee Leroy Richardson against the league. Richardson contends the NBA violated Title VII of the Civil Rights Act of 1964 by denying his request for a religious exemption from having to take the COVID-19 vaccine during the 2021-22 NBA season. The league terminated Richardson’s employment in 2022.
The NBA argued that Richardson’s claims are governed by arbitration language and thus should be dismissed from court. Although Cote sided with the league on several legal issues and granted the NBA summary judgment, she disagreed that the case should go to arbitration. Cote quoted Flores for the proposition that an arbitration agreement “does not alter or abridge substantive rights; it merely changes how those rights will be processed.”
The Second Circuit’s ruling in Flores could constrain the ability of sports leagues to rely on private arbitration. Leagues use arbitration for several reasons, including to have a subject matter expert oversee a dispute and to avoid a public-facing court system that media and fans can access and observe evidence and testimony. The Second Circuit concluded that even if Flores contractually accepted arbitration, he cannot be forced to raise his claims in an arbitration process that is “arbitration in name only” and “lacks” basic protections.
Flores accuses the Denver Broncos, New York Giants and Houston Texans, along with accompanying claims against the NFL, of discriminating against him based on race when he interviewed for head coaching jobs. Flores levels similar claims against his former employer, the Miami Dolphins, but those claims remain subject to arbitration due to his Dolphins employment contract.
The NFL denies the allegations and maintains that Flores accepted an arbitration process overseen by commissioner Roger Goodell. The Second Circuit disagreed. It reasoned that the Federal Arbitration Act, which governs arbitration in the U.S. and contemplates that courts ought to be deferential to arbitration decisions, contemplates an “independent” process that is “separate from the parties to the dispute.” Goodell, as the head of the NFL and who receives his salary from the owners of the teams that compose the NFL, doesn’t meet that standard. That’s especially the case, the Second Circuit observed, since Flores accuses Goodell of wrongdoing.
Flores contrasted with the Second Circuit letting Goodell arbitrate Tom Brady’s Deflategate case in 2015-16 despite Goodell also acting as the commissioner who suspended the New England Patriots star. However, Brady’s dispute involved a collectively bargained provision whereas Flores’ dispute concerns the scope of an employment contract and league constitution.
Richardson’s case also involves collectively bargained language. The NBA and the National Basketball Referee Association (NBRA) have a CBA that contains a non-discrimination clause. It prohibits workplace discrimination based on a referee’s religion (and other protected characteristics). The clause also allows a referee to bring a Title VII claim either to an arbitrator or to a court.
In addition, in 2021, the NBA and NBRA agreed to a policy requiring that referees be vaccinated against COVID-19. The policy allowed a referee to ask for an exemption from the NBA on account of having “sincerely held religious objections.” Referees could appeal an NBA denial to a Vaccination Exemption Board (VEB).
Richardson submitted letters from two pastors of churches in Virginia. The letters asserted that Richardson’s objection was “consistent with biblical scripture, tenets and Christian ideology.” One of the pastors opined the NBA’s vaccine mandate and threatened firing for refusing vaccination were “akin to biblical scripture in Revelations 13:16-18 which describes the requirement to receive the Mark of the Beast in order to buy or sell to survive.”
The NBA rejected Richardson’s application, and the VEB denied Richardson’s appeal. The pastors’ letters were deemed insufficient since, “at their core,” they expressed “secular” rather than religious “concerns” about the vaccine and government mandates placed on citizens. Richardson’s texts were also weighed, and they were seen as expressing secular objections.
The NBA also pointed out that permitting Richardson to work as a referee would pose an undue hardship on the league, which understandably wanted to “minimize the likelihood of game postponements” caused by COVID-19 outbreaks. The league noted that referees travel extensively during an NBA season, which means they sit in airplanes, stay in hotels, use taxis and rideshares and partake in other activities in which they’re near a lot of people. As part of their work, referees must also “interact closely with other referees and with NBA players and coaches.” Because of basic NBA referee job duties, such as calling fouls and blowing whistles, wearing a mask during games isn’t a viable option.
In her decision, Cote weighed whether the NBA-NBRA COVID agreement barred Richardson from suing the league. After all, Richardson already had an appeal—the one to the VEB, in a process that Richardson’s union contractually accepted. This was arguably much like Brady, as a union member of the NFLPA, contractually accepting a process that involved arbitration in lieu of litigation.
But Cote reasoned Richardson hadn’t given up his chance to sue. The COVID agreement, the judge explained, “did not contain a sufficiently clear waiver of the right of NBA referees to pursue statutory claims in federal court.” Cote added that for Richardson to have been deemed to relinquish his right to sue, he needed to have been explicitly warned about such consequences.
The judge wasn’t persuaded by NBA counterarguments. The league asserted that Richardson’s appeal to the VEB raises the same claim as the one in his lawsuit and thus should be dismissed on account of what’s known as res judicata. This is a legal principle instructing that once claims and issues have been resolved, they’re over and can’t appear in future cases. To that point, the VEB relied on Title VII case precedent in denying Richardson, meaning he’s already had the chance to raise the same set of legal issues to the VEB. Cote, however, invoked Flores to tell the NBA that the COVID agreement “would have had to say more” about Richardson waving statutory rights by appealing to the VEB.
While the NBA didn’t prevail on the question of arbitration, it did convince Cote that it should be granted summary judgment on account of undue hardship. The judge reasoned that permitting Richardson to referee games during the height of the pandemic would have been unreasonably disruptive. As a result, she granted summary judgment with respect to “the period following early December 2021.” Cote also denied Richardson’s motion for a summary judgment.
Expect to see pro leagues reevaluate their arbitration policies in light of Flores to ensure they don’t see more disputes wind up in court and be written about by media companies.