The attorneys for the Brian Flores case made an aggressive attempt to seek an opening on whether the case should go to arbitration. The attempt was aggressive but unsuccessful.
Judge Valerie Caproni denied the motion to force discovery on an arbitration matter.
She calls it “inappropriate fishing” and clarifies that Flores, Steve Wilkes, and Ray Horton do not need disclosure to argue that “the proposed arbitrator is so prejudiced against them that the motion for compulsory arbitration should not be denied.” granted.”
“We are confident that we will prevail against the NFL’s efforts to take this case to private and confidential arbitration behind closed doors,” attorneys for Douglas H. Wigdor and John Eleftherakis said in a statement. “Obviously, the NFL is trying to hide behind the arbitration process and avoid public scrutiny of our claims of racial discrimination and retaliation. If they are confident in their defense, they should let the case play out in court so the general public can see it.”
The case must be played out publicly, before a truly neutral third party. A commissioner who is hired, paid, and retained (or not retained) by league owners can never be truly impartial in a matter involving his employers.
However, there is one specific line in Judge Caproni’s ruling that points to the potential conclusion that the arbitration should continue, attacked after the fact.
“The Federal Arbitration Act (FAA) already provides a way for parties to seek relief from arbitrator bias; courts can “set aside arbitral awards” if the arbitrators were clearly biased or corrupt,” writes Judge Caproni.
Flores and his co-plaintiffs, in essence, argue that the bias is so obvious and inherent that any decision would be biased and corrupt. They will have to make this argument without access to more information, such as Goodell’s full compensation, his history, or arbitration decisions involving the NFL and its teams. Ultimately, they may have to go through arbitration and later claim that the decision shows clear bias and corruption.
The response to the petition must be submitted by August 19. A response from the NFL and the teams that are being sued must be filed by August 26.