In an opinion filed on Friday, Judge Caproni denied the National Football League’s renewed attempt to compel arbitration in an employment discrimination action brought by a putative class of current and former NFL coaches (the “Coaches”). Initially filed in 2022, the lawsuit alleged systemic racial discrimination in the hiring, retention and termination of NFL coaches and executives.

Shortly after the lawsuit was filed, the NFL moved to compel arbitration, which was granted as to certain claims and denied as to others. On appeal, the Second Circuit affirmed the district court’s refusal to compel arbitration claims against the Giants, Broncos and Texans, while declining to rule on jurisdictional grounds on the claims that had been compelled to arbitration. The Second Circuit explained that “the NFL failed to provide a neutral forum that could even be called an ‘arbitration’ and that [plaintiff] could not effectively vindicate his statutory rights in the forum that the NFL provided, given the designation of the NFL Commissioner as the default arbitrator and the lack of express arbitral procedures.”

In light of the Second Circuit’s ruling, the Coaches moved for reconsideration of the district court’s earlier order compelling arbitration of the remaining claims. “[T]o conform to controlling law,” Judge Caproni granted the Coaches’ motion and denied the NFL’s motion to compel arbitration in full. 

Specifically, Judge Caproni held that the NFL’s Dispute Resolution Procedural Guidelines (“DRPG”), which purport to set out procedural rules for matters decided by the NFL Commissioner, suffered the same “fatal flaws” as the NFL Constitution on which the Second Circuit based its decision. Although defendants argued that the DRPG (which was not considered by the Second Circuit) provided additional procedural safeguards, the Court found “[t]he NFL’s unilateral control over the dispute resolution process is the fatal flaw. That problem is not cured by the DRPG.”

Adding some procedure via the DRPG does not fix the forum’s lack of independence nor make the process bilateral. There are few requirements actually imposed on the NFL Commissioner by the DRPG. The Commissioner is required to determine whether the dispute is “football-oriented” and where and how the arbitration will proceed. The DRPG says nothing of amendment, emergency or expedited relief options, arbitrator neutrality or conflicts, or an appeal process. Moreover, it is clear that the DRPG can change, presumably at the unilateral discretion of the NFL, but it is unclear if and how any new procedures would apply. Although the DRPG provides some procedures, the NFL Constitution still provides the Commissioner with the authority unilaterally to dictate arbitral procedure. The DRPG is “just an outgrowth” of the NFL Constitution, and it appears to be only as binding as is beneficial to the NFL. . . . Especially pressing here, what good are procedures if they are, seemingly, entirely optional (at least for one side)? The addition of the DRPG means that these agreements bear more resemblance to the arbitration agreements envisioned and protected by the FAA, but, as constructed by the NFL, the similarity to “real” arbitration agreements is an illusion. These are arbitral procedures in name only.