Flores v. N.Y. Football Giants, et al.

23-1185-cv
Flores v. N.Y. Football Giants, et al.
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2024
No. 23-1185-cv
BRIAN FLORES, as a class representative on behalf of himself and all
others similarly situated,
Plaintiff-Appellee,
v.
N EW YORK FOOTBALL GIANTS, INC.; H OUSTON NFL H OLDINGS, L.P.,
DBA H OUSTON TEXANS; D ENVER BRONCOS; N ATIONAL FOOTBALL
L EAGUE ,
Defendants-Appellants.*
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: MARCH 25, 2025
D ECIDED: AUGUST 14, 2025
* The Clerk of Court is directed to amend the caption as set forth above.

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Before: C ABRANES, LYNCH, and L OHIER , Circuit Judges.
The National Football League (“NFL”) and six of its member
clubs (jointly “Defendants”) moved to compel arbitration of a putative
class action brought by Plaintiffs Brian Flores, Steve Wilks, and Ray
Horton—current and former NFL coaches—alleging, in relevant part,
claims of racial discrimination under 42 U.S.C. § 1981. The questions
presented are whether the United States District Court for the
Southern District of New York (Valerie E. Caproni, Judge) erred by
partially denying Defendants’ motion to compel arbitration and
“abused its discretion” by denying Defendants’ motion for
reconsideration. More specifically, we consider: (1) whether the
District Court erred by denying arbitration of Flores’s claims against
the Denver Broncos and the NFL based on his employment agreement
with the New England Patriots, which incorporated by reference the
NFL Constitution; (2) whether the District Court correctly denied
Defendants’ motion to compel arbitration of Flores’s claims against the
New York Giants, Houston Texans, and the NFL; and (3) whether the
District Court abused its discretion by denying Defendants’ motion for
reconsideration.
We AFFIRM the District Court’s order denying the motion to
compel arbitration of Flores’s claims against the Denver Broncos, New
York Giants, Houston Texans, and NFL. We also AFFIRM the District
Court’s order denying reconsideration.

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We conclude that: (1a) Flores’s agreement under the NFL
Constitution to submit his statutory claims against the Broncos and the
NFL to the unilateral substantive and procedural discretion of the NFL
Commissioner—the principal executive of one of Flores’s adverse
parties—provides for arbitration in name only and accordingly lacks
the protection of the Federal Arbitration Act (“FAA”); (1b) Flores’s
agreement to submit his statutory claims against the Broncos and the
NFL to the unilateral discretion of the NFL Commissioner is
unenforceable because the agreement fails to guarantee that Flores can
“vindicate [his] statutory cause of action in [an] arbitral forum”, (1c) the
District Court did not err when it denied Defendants’ motion to
compel arbitration of Flores’s claims against the Giants, Texans, and
the NFL; and (2) the District Court did not abuse its discretion by
denying Defendants’ motion for reconsideration.
KANNON K. S HANMUGAM, Paul, Weiss,
Rifkind, Wharton & Garrison LLP,
Washington, DC (Loretta E. Lynch, Brad S.
Karp, Lynn B. Bayard, Brette Tannenbaum,
Paul, Weiss, Rifkind, Wharton & Garrison
LLP, New York, NY, William T. Marks,
Paul, Weiss, Rifkind, Wharton & Garrison
LLP, Washington, DC, on the brief), for
Defendants-Appellants,

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D AVID E. GOTTLIEB , Wigdor LLP, New York,
NY (Douglas H. Wigdor, Michael J.
Willemin, Wigdor LLP, New York, NY, John
Elefterakis, Elefterakis, Elefterakis & Panek,
New York, NY, on the brief), for Plaintiff-
Appellee,
KEVIN MINTZER , Law Office of Kevin
Mintzer, P.C., New York, NY, for Amici
Curiae Professors Gilat Juli Bachar, Rick Bales,
George A. Bermann, Ylli Dautaj, Benjamin
Davis, Michael Z. Green, Deborah Hensler,
Ariana R. Levinson, Alan B. Morrison, Alexi
Pfeffer-Gillet, Andrea Kupfer Schneider, and
Imre Stephen Szalai.
J OSÉ A. C ABRANES, Circuit Judge:
The National Football League (“NFL”) and six of its member
clubs (jointly “Defendants”) moved to compel arbitration of a putative
class action brought by Plaintiffs Brian Flores, Steve Wilks, and Ray
Horton—current and former NFL coaches—alleging, in relevant part,
claims of racial discrimination under a federal statute and state and
local law.1 The questions presented are whether the United States
District Court for the Southern District of New York (Valerie E.
1 Plaintiffs brought claims under 42 U.S.C. § 1981. See post note 5.

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Caproni, Judge) erred by partially denying Defendants’ motion to
compel arbitration and “abused its discretion” by denying
Defendants’ motion for reconsideration. More specifically, we
consider: (1) whether the District Court erred by denying arbitration
of Flores’s claims against the Denver Broncos and the NFL based on
his employment agreement with the New England Patriots, which
incorporated by reference the NFL Constitution; (2) whether the
District Court erred when it denied Defendants’ motion to compel
arbitration of Flores’s claims against the New York Giants, Houston
Texans, and the NFL; and (3) whether the District Court abused its
discretion by denying Defendants’ motion for reconsideration.
We AFFIRM the District Court’s order denying the motion to
compel arbitration of Flores’s claims against the Denver Broncos, New
York Giants, Houston Texans, and NFL. We also AFFIRM the District
Court’s order denying reconsideration.
We conclude that: (1a) Flores’s agreement under the NFL
Constitution to submit his statutory claims against the Broncos and the
NFL to the unilateral substantive and procedural discretion of the NFL
Commissioner—the principal executive of one of Flores’s adverse
parties—provides for arbitration in name only and accordingly lacks
the protection of the Federal Arbitration Act (“FAA”); (1b) Flores’s
agreement to submit his statutory claims against the Broncos and the
NFL to the unilateral discretion of the NFL Commissioner is
unenforceable because the agreement fails to guarantee that Flores can

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“vindicate [his] statutory cause of action in [an] arbitral forum”;2 (1c)
the District Court did not err when it denied Defendants’ motion to
compel arbitration of Flores’s claims against the Giants, Texans, and
the NFL; and (2) the District Court did not abuse its discretion by
denying Defendants’ motion for reconsideration.
I. BACKGROUND
Brian Flores is the current defensive coordinator of the
Minnesota Vikings, a member club of the NFL. Since 2008, Flores has
been employed as a football coach by a variety of NFL member clubs,
namely the New England Patriots (2008-2018), Miami Dolphins (2019-
21), Pittsburgh Steelers (2022), and Minnesota Vikings (2023-Present).
The NFL is an unincorporated membership association
consisting of 32 member clubs. The operation and structure of the NFL,
as well as the relationship between the NFL, the member clubs, and
the clubs’ employees, are governed by the NFL Constitution and
Bylaws (the “NFL Constitution”), which broadly empowers the NFL
Commissioner to manage the league’s affairs.3 The NFL
Commissioner’s powers include, but are not limited to, the ability to
interpret and establish league policy and procedure, discipline
relevant parties (including member clubs and coaches), hire legal
counsel to respond to conduct detrimental to “the league, its member
clubs or employees, or to professional football,” and the “full,
2 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985)
(emphasis added).
3 See Constitution and Bylaws of the National Football League, J.A. 571-1019.

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complete, and final jurisdiction and authority to arbitrate” disputes
between relevant parties, including between employees and member
clubs.4
In February 2022, Flores filed a putative class action against the
NFL, as well as member clubs the Denver Broncos, New York Giants,
and Miami Dolphins, alleging claims of racial discrimination under 42
U.S.C. § 1981, as well as under state and local statutes.5 In April 2022,
Flores filed the now-operative first amended complaint, which
included an additional claim by Flores against the Houston Texans as
well as claims by two new plaintiffs, current NFL coach Steve Wilks
4 Id at art. VIII, J.A. 603-12.
5 42 U.S.C. § 1981 provides:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.
(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts”
includes the making, performance, modification, and termination
of contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against
impairment by nongovernmental discrimination and impairment
under color of State law.

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and former NFL coach Ray Horton, against the Arizona Cardinals and
Tennessee Titans, respectively.
In June 2022, the NFL and the relevant member clubs moved to
compel arbitration. Defendants argued that the claims brought by
Plaintiffs Flores, Wilks, Horton, and putative class members were
subject to arbitration as agreed to in Plaintiffs’ employment
agreements with the various member clubs for which they served as
coaches. Each time a Plaintiff had been hired as a coach of a member
club, he signed an employment contract that included an express
agreement to arbitrate disputes with the relevant member club and
also incorporated by reference the NFL Constitution, which includes a
broad arbitration provision.6 Defendants argued that the NFL was
entitled to enforce Plaintiffs’ arbitration agreements with respect to
their claims against the NFL, pursuant to the doctrine of equitable
estoppel.7
6 Compare, e.g., Flores-Patriots Agreement (Redacted), J.A. 512 (Flores’s club-specific
arbitration agreement with the Patriots), with id. at J.A. 511 (incorporating the NFL
Constitution in Flores’s contract with the Patriots). See also Constitution and Bylaws of the
National Football League art. VIII, § 8.3, J.A. 603.
7 Under the doctrine of equitable estoppel, an arbitration agreement can be
enforced against a non-signatory to whom the law will otherwise attribute consent. Doe v.
Trump Corp., 6 F.4th 400, 413 (2d Cir. 2021). Accordingly, even though the NFL
Constitution’s arbitration provision does not explicitly cover disputes between coaches and
the NFL, the District Court determined that Plaintiffs were estopped “from avoiding
arbitration of their claims against the NFL in light of their allegations that the NFL and the
Defendant teams were jointly engaged in the alleged discrimination and retaliation.” Flores
v. Nat'l Football League, 658 F. Supp. 3d 198, 213 (S.D.N.Y. 2023).
In their briefing, Defendants argued that the NFL is the “membership association
for the member clubs that hired Plaintiffs, and the NFL itself approved and signed those

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A. The District Court’s Order
On March 1, 2023, the District Court granted the motion to
compel arbitration with respect to Flores’s claims against the
Dolphins, Wilk’s claims against the Cardinals, and Horton’s claims
against the Titans—as well as their related claims against the NFL—on
the basis of the club-specific arbitration agreements in each of the
Plaintiffs’ employment agreements.8 However, the District Court
denied the motion as to Flores’s claims against the Broncos, Giants,
and Texans, and related claims against the NFL.9 This appeal concerns
only Flores’s claims against the Broncos, Giants, and Texans, and
related claims against the NFL.
1. Flores’s Claims Against the Denver Broncos and Related
Claims Against the NFL10
In January 2019, while still under contract as a coach with the
Patriots, Flores interviewed for the position of head coach of the
Broncos. He alleges that the Broncos discriminated against him
agreements.” Memorandum of Law in Support of Defendants’ Motion to Compel
Arbitration and Stay Further Proceedings, J.A. 194. Further, Defendants argued that
“Plaintiffs’ claims against the NFL are wholly derivative of and factually intertwined with
their claims against the member clubs whose employment practices and purported
violations of NFL rules and policies are the foundation for such claims.” Id. at 194-95.
8 Flores, 658 F. Supp. 3d at 220.
9 Id.
10 Because the details of Defendants’ alleged violations of law are ancillary to issues
in this appeal, we provide only a general overview.

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because of his race when they failed to hire him.11 A month later, in
February 2019, Flores was hired as head coach of the Miami Dolphins.
At the time of his interview with the Broncos, Flores’s employment
contract with the Patriots included two provisions bearing on the
arbitrability of his claims. First, Flores agreed to a club-specific
arbitration agreement with the New England Patriots.12 Second, Flores
agreed “to comply at all times with, and to be bound by, the NFL
Constitution,” which was incorporated by reference into his
employment agreement “in [its] present form and as amended from
time to time hereafter.”13 Section 8.3 of the NFL Constitution grants the
NFL Commissioner “full, complete, and final jurisdiction and
authority to arbitrate” several types of disputes, including “[a]ny
dispute between any . . . coach . . . and any member club or clubs.”14
Inasmuch as Flores’s claims against the Broncos and the NFL
plainly fell outside his club-specific arbitration agreement with the
11 More specifically, Flores argues that he was offered an interview with the Broncos
as a “sham” to satisfy the Rooney Rule. First Amended Class Action Complaint, J.A. 133-
34. The Rooney Rule is a long-standing requirement by the NFL that two opportunities to
interview for each open coaching positions be allotted to prospective candidates who are a
member of a racial minority group and/or a woman. See The Rooney Rule, NFL Football
Operations, https://operations.nfl.com/inside-football-ops/inclusion/the-rooney-rule/
[https://perma.cc/JUD3-E5KN].
12 Flores agreed “that all matters in dispute between Employee and the Club,
including without limitation any dispute arising from the terms of this Agreement, shall be
referred to the NFL Commissioner for binding arbitration in accordance with the NFL’s
Dispute Resolution Procedural Guidelines.” Flores-Patriots Agreement (Redacted), J.A. 512.
13 Id. at J.A. 511.
14 Constitution and Bylaws of the National Football League art. VIII, § 8.3, J.A. 603.

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Patriots, the District Court considered whether the NFL Constitution’s
general arbitration provision applied to Flores’s claims and was
enforceable. It found that the NFL Constitution’s arbitration provision
applied to Flores’s claims but refused to enforce the arbitration
provision.15 The District Court reasoned that the arbitration provision
was illusory and unenforceable under Massachusetts state law
because “the NFL and its member clubs have the unilateral ability to
modify the terms of the NFL Constitution.”16 As a result, the District
Court ordered that Flores’s claims against the Broncos and related
claims against the NFL be litigated in federal court.
2. Flores’s Claims Against the New York Giants, Houston
Texans, and Related Claims Against the NFL
In January 2022, after three seasons as the head coach of the Miami
Dolphins, Flores was fired. Afterwards, Flores was interviewed for
head coach positions with both the Giants and the Texans. He was not
hired for either position, allegedly because of racial discrimination and
retaliation. In February 2022, Flores was hired as the senior defensive
assistant and linebackers coach of the Pittsburgh Steelers, signing an
employment agreement that, like his employment agreement with the
Patriots, included both a club-specific arbitration agreement and
incorporated by reference the NFL Constitution.17
15 Flores, 658 F. Supp. 3d at 214-15.
16 Id. at 215.
17 Flores-Steelers Agreement (Redacted), J.A. 515-522.

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Defendants argued that Flores’s contract with the Steelers
retroactively applied to his claims against the Giants and Texans,
compelling arbitration in accordance with the NFL Constitution.
Without reaching the question of retroactivity, the District Court
concluded, in an Opinion and Order dated March 1, 2023, that
“Defendants ha[d] failed to establish that Mr. Flores entered into a
valid arbitration agreement” because the version of the Flores-Steelers
agreement submitted to the District Court was never signed by the
NFL Commissioner.18 As a result, the District Court ordered that
Flores’s claims against the Giants, Texans, and related claims against
the NFL be litigated in federal court.
B. Motions for Reconsideration and Appeal
In March 2023, the parties cross-moved for partial reconsideration
of the District Court’s March 1 order. In their motion, Defendants
asserted that they were not given notice that the District Court would
rely on the absence of a signed copy of the Flores-Steelers agreement
to deny their motion to compel arbitration. They explained that the
NFL Commissioner had, in fact, approved the Flores-Steelers
agreement on June 17, 2022, and provided the District Court with a
new copy bearing his signature. On July 25, 2023, the District Court
denied both motions for reconsideration.19
18 Flores, 658 F. Supp. 3d at 210.
19 Flores v. Nat'l Football League, No. 22-CV-0871, 2023 WL 4744191, at *8 (S.D.N.Y.
July 25, 2023).

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On August 21, 2023, the NFL, Denver Broncos, New York Giants,
and Houston Texans (jointly, “Defendants-Appellants”) filed a timely
notice of appeal limited to the portion of the District Court’s order of
March 1, 2023, declining to compel arbitration of Flores’s claims
against the Broncos, Giants, and Texans, and related claims against the
NFL.20 Defendants-Appellants also appealed the District Court’s order
of July 25, 2023, denying Defendants’ motion for reconsideration.21 As
this Court has already ruled in an unpublished order, we lack
jurisdiction over Plaintiffs’ cross-appeal concerning the District
Court’s decision to compel arbitration of Flores’s claims against the
Miami Dolphins, Wilks’s claims against the Arizona Cardinals, and
Horton’s claims against the Tennessee Titans.22 The claims of Wilks
and Horton are thus no longer before this Court.
II. DISCUSSION
We review de novo the District Court’s denial of a motion to
compel arbitration.23 We review for “abuse of discretion” the District
Court’s order denying a motion for reconsideration.24 Importantly, we
20 J.A. 1166.
21 Id.
22 In an order, this Court granted Defendants-Appellants’ motion to dismiss the
cross-appeal for lack of appellate jurisdiction. See Wilks v. N.Y. Football Giants, Inc., No. 23-
1185, 2024 WL 4110915, at *1 (2d Cir. Apr. 11, 2024) (declining to exercise pendent appellate
jurisdiction).
23 Lloyd v. J.P. Morgan Chase & Co., 791 F.3d 265, 269 (2d Cir. 2015).
24 Contant v. AMA Cap., LLC, 66 F.4th 59, 65 (2d Cir. 2023).

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“are free to affirm on any ground that finds support in the record, even
if it was not the ground upon which the trial court relied.”25
First, we consider whether the District Court erred by denying
arbitration of Flores’s claims against the Denver Broncos and the NFL
based on his employment agreement with the New England Patriots,
which incorporated by reference the NFL Constitution. Second, we
consider whether the District Court correctly denied Defendants’
motion to compel Flores to arbitrate his claims against the New York
Giants, Houston Texans, and the NFL. In turn, we also consider
whether the District Court abused its discretion by denying
Defendants’ motion for reconsideration.
A. The District Court Correctly Denied Arbitration of Flores’s
Claims Against the Denver Broncos and Related Claims
Against the NFL
1. Legal Framework
The Federal Arbitration Act (“FAA”) establishes “both a liberal
federal policy favoring arbitration and the fundamental principle that
arbitration is a matter of contract.”26 Specifically, Section 2 of the FAA
provides that “agreements to arbitrate [are] ‘valid, irrevocable, and
25 Wells Fargo Advisors, LLC v. Sappington, 884 F.3d 392, 396 n.2 (2d Cir. 2018)
(quoting Headley v. Tilghman, 53 F.3d 472, 476 (2d Cir. 1995)).
26 AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (internal quotation
marks and citations omitted).

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enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract.’”27
We have been reminded by the Supreme Court that “[g]iven that
arbitration agreements are simply contracts . . . the first question
[courts consider] in any arbitration dispute must be: What have these
parties agreed to?”28 To answer this question, courts apply the relevant
“ordinary state-law principles that govern the formation of
contracts.”29 If the parties have formed a valid contract, courts must
generally “rigorously enforce arbitration agreements according to
their terms.”30
Nevertheless, not every self-declared “arbitration agreement” or
contractual provision within such an agreement is embraced by the
FAA’s mandate. The Supreme Court has recently reiterated that the
FAA’s mandate is limited to the enforcement of actual “arbitration
agreements”—meaning “a specialized kind of forum-selection clause
that posits not only the situs of suit but also the procedure to be used
in resolving the dispute.”31 Indeed, the rigorous enforcement of
arbitration agreements under the FAA has long presumed “traditional
27 Id. at 336 (quoting 9 U.S.C. § 2).
28 Coinbase, Inc. v. Suski, 602 U.S. 143, 148 (2024) (internal quotation marks and
citations omitted).
29 First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995).
30 Am. Exp. Co. v. Italian Colors Rest., 570 U.S. 228, 233 (2013) (internal quotation
marks and citation omitted).
31 Viking River Cruises, Inc. v. Moriana, 596 U.S. 639, 653 (2022) (quoting Scherk v.
Alberto-Culver Co., 417 U.S. 506, 519 (1974)).

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arbitral practice” and “the norm of bilateral arbitration as our
precedents conceive of it.”32 Fundamentally, “[a]n arbitration
agreement . . . does not alter or abridge substantive rights; it merely
changes how those rights will be processed.”33 When a party “agree[s]
to arbitrate a statutory claim, a party does not forgo the substantive
rights afforded by the statute; it only submits to their resolution in an
arbitral, rather than a judicial, forum.”34 Accordingly, “the FAA does
not require courts to enforce contractual waivers of substantive rights
and remedies.”35
This basic principle—“that the FAA requires only the enforcement
of provision[s] to settle a controversy by arbitration”—means that
agreements beyond the scope of this tenet are unprotected by the FAA
and potentially vulnerable to invalidation.36 There are a number of
alternatives to adjudication for resolving disputes, including not only
arbitration but any number of other mechanisms, such as dueling,
flipping a coin, or settling controversies with a game of ping pong.37
32 Id. at 657-58; see also AT&T Mobility LLC, 563 U.S. at 348-50 (distinguishing so-
called bilateral arbitration from class-wide arbitration and noting that while arbitration
works well for bilateral litigation, it is “poorly suited to the higher stakes of class litigation”).
See also post note 51.
33 Viking River, 596 U.S. at 653.
34 Mitsubishi Motors Corp., 473 U.S. at 628 (quoted in part in Viking River, 596 U.S. at
653).
35 Viking River, 596 U.S. at 653.
36 Id. at 653 n.5 (internal quotation marks and citation omitted).
37 Heckman v. Live Nation Ent., Inc., 120 F.4th 670, 689-90 (9th Cir. 2024).

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The only form of alternative dispute resolution protected by the FAA,
though, is arbitration, and neither a duel nor a coin flip nor a game of
ping pong is an arbitration, even if labeled as one.
When statutory rights are at stake, such a vulnerability can turn
fatal. The Supreme Court’s long-standing “effective vindication”
doctrine establishes that even FAA-protected arbitration agreements
are subject to invalidation when they “operat[e] . . . as a prospective
waiver of a party’s right to pursue statutory remedies.”38 The Court has
explained that only “so long as the prospective litigant effectively may
vindicate its statutory cause of action in the arbitral forum, [will] the
statute . . . continue to serve both its remedial and deterrent
function.”39 Put simply, an agreement to submit statutory claims to a
non-arbitral process may amount to “contractual waiver[] of
substantive rights and remedies” that falls outside FAA protection and
is unenforceable under the foundational principles of the effective
vindication doctrine.40
2. Flores Agreed to Arbitrate his Statutory Claims
On appeal, neither party contests the District Court’s determination
that Flores’s claims against the Denver Broncos and the NFL are
covered by Flores’s contract with the New England Patriots. When
Flores interviewed with the Broncos, he was under contract with the
38 Italian Colors Rest., 570 U.S. at 235 (quoting Mitsubishi Motors, 473 U.S. at 637 n.19).
39 Id. (quoting Mitsubishi Motors, 473 U.S. at 637) (emphasis added).
40 Viking River, 596 U.S. at 653.

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Patriots. In his contract, Flores expressly agreed to abide by the NFL
Constitution, which was properly incorporated into his agreement
under Massachusetts state law.41
Section 8.3 of the NFL Constitution grants the NFL Commissioner
“full, complete, and final jurisdiction and authority to arbitrate”
several types of disputes, including “[a]ny dispute between any . . .
coach . . . and any member club or clubs.”42 Even though the NFL
arbitration provision does not explicitly cover claims against the NFL
itself, the parties do not dispute that the District Court properly held
that Flores is estopped from avoiding the arbitration of these claims
under applicable state law.43
3. The NFL’s Unilateral “Arbitration” Clause is Unenforceable
Against Flores’s Statutory Claims
On appeal, Flores argues that even though the NFL Constitution’s
arbitration provision (as incorporated into his employment contract
with the Patriots) covers his claims against the Broncos and the NFL,
the arbitration provision is unenforceable against his claims. Notably,
while the District Court refused to enforce the arbitration provision as
illusory under Massachusetts state law, Flores argues that this Court
should affirm the District Court’s order on two potential alternative
grounds. Flores contends both that the arbitration provision is
41 See NSTAR Elec. Co. v. Dep’t of Pub. Utils., 968 N.E.2d 895, 905-06 (Mass. 2012).
42 Constitution and Bylaws of the National Football League art. VIII, §8.3, J.A. 603.
43 Flores, 658 F. Supp. 3d at 213-14. See ante note 7.

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unconscionable under Massachusetts state law and that the provision
precludes the effective vindication of his statutory rights.
Determining that federal law compels the affirmance of the District
Court’s order on alternative grounds, we need not reach questions of
state law. First, we hold that Flores’s agreement under the NFL
Constitution to submit his statutory claims against the Broncos and the
NFL to the unilateral substantive and procedural discretion of the NFL
Commissioner—the principal executive of one of Flores’s adverse
parties—provides for arbitration in name only and accordingly lacks
the protection of the FAA. Second, we hold that Flores’s agreement to
submit his statutory claims against the Broncos and the NFL to the
unilateral discretion of the NFL Commissioner is unenforceable
because the agreement fails to guarantee that Flores can “vindicate
[his] statutory cause of action in [an] arbitral forum.”44
a. Flores’s Agreement with Defendants-Appellants is Not
Protected by the FAA
While we have long recognized the unique “informalities” of
arbitral procedures and the ability of parties to construct arbitration
agreements on their own terms, 45 the NFL Constitution’s arbitration
provision fails to bear even a passing resemblance to “traditional
arbitral practice.”46 It contractually provides for no independent
44 Mitsubishi Motors Corp., 473 U.S. at 637.
45 Am. Almond Prods. Co. v. Consol. Pecan Sales Co., 144 F.2d 448, 451 (2d Cir. 1944).
46 Viking River, 596 U.S. at 658.

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arbitral forum, no bilateral dispute resolution, and no procedure.47
Instead, it offends basic presumptions of our arbitration jurisprudence
by submitting Flores’s statutory claims to the unilateral substantive
and procedural discretion of the “principal executive officer” of one of
his adverse parties, the NFL.48 And “[s]imply labeling something as
‘arbitration’ does not automatically bring it within the ambit of the
FAA’s protection.”49 The NFL Constitution’s arbitration provision is
“unworthy even of the name of arbitration” and thus falls outside of
the FAA’s protection.50
First, the NFL Constitution’s arbitration provision fails to provide
an independent arbitral forum for bilateral dispute resolution. A basic
assumption of “traditional arbitral practice” and “the norm of bilateral
arbitration as our precedents conceive of it” is that even while
arbitration is a matter of contract, an arbitral forum is an independent
forum that is separate from the parties to the dispute.51 Indeed, the
47 See ante pg. 7-10 and post pg. 20-24 for a discussion of these basic features of
arbitration.
48 Constitution and Bylaws of the National Football League art. VIII, §§ 8.3, 8.4(b),
J.A. 603-04. In addition, the NFL Commissioner enjoys authority over and owes
responsibilities to member clubs. Id. art. VIII.
49 Heckman,120 F.4th at 691 (VanDyke, J., concurring).
50 Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 940 (4th Cir. 1999) (noting that
arbitration is “a system whereby disputes are fairly resolved by an impartial third party”
and that a “scheme whereby one party to the proceeding so controls the arbitral panel” is
not arbitration, but rather “a sham system”).
51 Viking River, 596 U.S. at 657-58. The Supreme Court’s arbitration jurisprudence
has long presumed that an arbitral forum is independent from the parties to the dispute.
See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 30 (1991) (presuming that an

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Supreme Court has explained that “an arbitrator derives his or her
powers from the parties’ agreement to forgo the legal process and
submit their disputes to private dispute resolution.”52 Accordingly, an
arbitration agreement that prevents parties from submitting their
disputes to an independent arbitral forum, and that instead compels
one party to submit its disputes to the substantive and procedural
authority of the principal executive officer of one of their adverse
parties, is an agreement for arbitration in name only. At a structural
level, it lacks the requisite independence between parties and
arbitrator that is fundamental to the FAA’s conception of arbitration.
The FAA authorizes federal courts to vacate arbitration awards “where
there was evident partiality . . . in the arbitrators.”53 It would make
little sense if the same statute nonetheless required the courts to
compel parties to arbitrate their claims in a forum that is indisputably
partial.54 Accordingly, the agreement betrays the norm of bilateral
“arbitration panel[]” is an entity that is separate from and independent of the parties);
Mitsubishi Motors, 473 U.S. at 634 (1985) (referring separately to “the parties” and to “the
arbitral body with whose assistance [the parties] have agreed to settle their dispute,”
indicating that the two categories do not overlap).
52 Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 682 (2010).
53 See 9 U.S.C. § 10(a)(2).
54 United States v. Int'l Bhd. of Teamsters, 170 F.3d 136, 147 (2d Cir.1999) (explaining
that “evident partiality” does not require “actual partiality”); Pitta v. Hotel Ass'n of New York
City, Inc., 806 F.2d 419, 423-24 & n.2 (2d Cir. 1986) (explaining that evident partiality may be
“infer[red] from objective facts inconsistent with impartiality” and that “[t]he relationship
between a party and the arbitrator may, in some circumstances, create a risk of unfairness
so inconsistent with basic principles of justice that the arbitration award must be
automatically vacated”).

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dispute resolution and, quite simply, could not be called with a
straight face a “forum-selection clause.”55
Second, the NFL arbitration provision fails to provide “the
procedure to be used in resolving the dispute.”56 In fact, in the absence
of a procedure provided by contract, Defendants-Appellants argue
that an additional clause of the NFL Constitution provides the
Commissioner the authority to unilaterally dictate arbitral procedure.
Section 8.5 of the NFL Constitution grants the Commissioner the
authority to “establish policy and procedure in respect to the
provisions of the Constitution and Bylaws.”57 Importantly, the
arbitration provision of the NFL Constitution does not reference or
incorporate the NFL’s Dispute Resolution Procedural Guidelines,
which, by contrast, were incorporated into Flores’s club-specific
arbitration agreements that are not at issue in this appeal.58 Ultimately,
55 Viking River, 596 U.S. at 653 (quoting Scherk, 417 U.S. at 519).
56 Id. (quoting Scherk, 417 U.S. at 519).
57 Constitution and Bylaws of the National Football League art. VIII, § 8.5, J.A. 604.
58 J.A. 512. On appeal, Defendants-Appellants insist that the NFL’s Dispute
Resolution Procedural Guidelines do apply to Flores’s claims. However, for support,
Defendants-Appellants rely on the NFL Commissioner’s general, unilateral procedural
power under Section 8.5. Appellants’ Reply Br. at 23. The mere reference to the
Commissioner’s unilateral power is insufficient to establish that Flores agreed to
incorporate the NFL’s Dispute Resolution Procedural Guidelines into his employment
agreement to govern his claims subject to arbitration under the NFL Constitution. See
generally State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 811 (Mo. 2015) (applying Missouri law
and finding that relator “had no way to know that the NFL intended the guidelines to
govern arbitration proceedings”). Further, Defendants-Appellants’ letter to the Court does
not appear to support their contention that the NFL’s Dispute Resolution Procedural

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in matters of procedure, as in matters of substance, the NFL
Constitution’s arbitration provision bears virtually no resemblance to
arbitration agreements as envisioned and as protected by the FAA.
Late efforts by the NFL Commissioner to exercise his unilateral
discretion to boot-strap a more plausible arbitration process do not
alter our analysis. After the submission of briefs on appeal,
Defendants-Appellants alerted the Court that the NFL Commissioner
had “exercised his discretion” to appoint Peter C. Harvey to arbitrate
Flores’s claims.59 Harvey has a professional relationship with
Defendants-Appellants on issues at the heart of Flores’s claims: he is a
member of the NFL’s “Diversity Advisory Committee” and has been
hired as a diversity consultant by the league.60 This relationship is
perfectly appropriate, it appears, but the late unilateral designation of
an adviser to the NFL as arbitrator neither provides for an even facially
independent arbitral forum, nor remedies the Commissioner’s
unilateral contractual authority over both the substance of Flores’s
statutory claims and the procedures governing their alleged
“arbitration.”61 In fact, the Commissioner’s unilateral designation of
Guidelines apply. Kannon K. Shanmugam Letter to the Court, No. 23-1185, ECF No. 157
(Sept. 24, 2024). See post note 61.
59 Kannon K. Shanmugam Letter to the Court, No. 23-1185, ECF No. 157 (Sept. 24,
2024).
60 Douglas H. Wigdor Letter to the Court 2, No. 23-1185, ECF No. 159 (Sept. 24,
2024).
61 Notably, Defendants-Appellants did not claim in their letter to the Court that
Harvey was selected in accordance with the NFL’s Dispute Resolution Procedural
Guidelines. Indeed, the unilateral designation of Harvey to arbitrate federal statutory

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an adviser to the NFL represents a further extension of his unilateral
power rather than its remedy.62
Ultimately, the NFL’s arbitration provision is fundamentally unlike
any traditional arbitration provision protected by the FAA, in which
courts are appropriately cautioned to avoid presuming at an early
stage “that the parties and arbitral body conducting a proceeding will
be unable or unwilling to retain competent, conscientious, and
impartial arbitrators.”63 Because the FAA’s mandate is limited to the
enforcement of actual “arbitration agreements,” the NFL
Constitution’s arbitration provision enjoys no special deference under
the FAA.64 This holding is an independent reason to affirm the District
Court’s order denying the motion to compel arbitration of Flores’s
claims.65
claims appears to be facially inconsistent with these procedures. See National Football
League Dispute Resolution Procedural Guidelines, §§ 1.5, 1.7., J.A. 501 (setting forth that
when the dispute is “not football-oriented,” such as when it “relat[es] to or aris[es] out of
discrimination,” the Commissioner may either direct the dispute to “the alternative dispute
resolution provider agreed to by the parties” or to “JAMS, Inc.” (emphasis added)).
62 Accordingly, we additionally find persuasive some of the reasoning of the Fourth
and Sixth Circuits, respectively, which refused to enforce arbitration provisions because of
the unilateral selection of arbitrators. See Hooters of Am., 173 F.3d at 939; McMullen v. Meijer,
Inc., 355 F.3d 485, 493-94 (6th Cir. 2004).
63 Mitsubishi Motors Corp., 473 U.S. at 634.
64 Viking River, 596 U.S. at 653.
65 Although the effective vindication doctrine is an independent reason to affirm the
District Court’s order denying the motion to compel arbitration of Flores’s claims, it is
closely linked with our conclusion that the FAA does not protect the NFL Constitution’s

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b. Flores’s Agreement with Defendants-Appellants is
Unenforceable
In proceeding to consider the enforceability of Flores’s contract to
submit his statutory claims to the unilateral substantive and
procedural authority of the executive of one of his adverse parties, we
hold that the agreement is plainly unenforceable under the most basic
principles of the effective vindication doctrine.
Preliminarily, it is important to note that the effective vindication
doctrine has traditionally been understood as “a judge-made
exception to the FAA” designed to “harmonize competing federal
policies” by invalidating offending arbitration agreements.66
Accordingly, the precise relationship between the “rigorous[]”
enforcement of arbitration agreements demanded by the FAA and “a
party’s right to pursue statutory remedies” has been subject to extended
judicial debate.67
Here, however, we need not reach the outer bounds of potential
exceptions to the FAA because the alleged arbitration provision at
issue before us plainly fails to provide Flores access to an “arbitral . . .
forum.”68 Indeed, for the same reasons that the alleged arbitration
arbitration agreement. Both conclusions rely largely on the fact that the arbitral forum
guaranteed by the NFL Constitution is inherently biased.
66 Italian Colors Rest., 570 U.S. at 235.
67 Id. at 233, 235 (internal quotation marks and citations omitted). See also id. at 242-
43 (Kagan, J., dissenting).
68 Viking River, 596 U.S. at 653 (internal quotation marks and citation omitted).

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provision lacks FAA protection, it also functions as a “prospective
waiver of a party’s right to pursue statutory remedies.”69 An arbitration
agreement is only enforceable so long as a “litigant effectively may
vindicate its statutory cause of action in the arbitral forum.”70 Here,
enforcing this agreement would require Flores to submit his statutory
claims to the unilateral discretion of the executive of one of his adverse
parties, without an independent arbitral forum under contract and
without a process for bilateral dispute resolution.71 Because Flores
69 Italian Colors, 570 U.S. at 235 (quoting Mitsubishi Motors, 473 U.S. at 637 n.19).
70 Id. (quoting Mitsubishi Motors, 473 U.S. at 637); see also State Farm Mutual Auto. Ins.
Co. v. Tri-Borough NY Med. Practice P.C., 120 F.4th 59, 90–92 (2d Cir. 2024) (noting that this
Court has declined to enforce arbitration agreements that “appeared to foreclose” plaintiffs
“from vindicating rights granted by federal and state law” and granting plaintiffs’ motion
for a preliminary injunction to enjoin various separate arbitrations of defendants’ other
claims against them because plaintiffs’ federal RICO claim could not be effectively
vindicated in the arbitral forum (internal quotation marks and citation omitted)). An
agreement to an alternative dispute resolution scheme like the one here that cannot be
readily severed to avoid the effective-vindication doctrine is invalid in its entirety and
enforceable neither as to federal nor state law claims. See, e.g., Gingras v. Think Fin., Inc., 922
F.3d 112, 127–28 (2d Cir. 2019); Cedeno v. Sasson, 100 F.4th 386, 408 (2d Cir. 2024).
71 Compare Constitution and Bylaws of the National Football League art. VIII, § 8.3,
J.A. 603 (the NFL Constitution’s general arbitration provision), with id. art. III, § 3.8(B), J.A.
583 (a provision of the NFL Constitution, not at issue here, setting forth that when “any
stockholder, partner, or holder of any interest in a member club is requested to sell or
dispose of his stock or an interest in a membership in the League” and the terms of the sale
“cannot be accomplished by mutual agreement,” the “price and other terms shall be fixed
by arbitration with one arbitrator to be selected by the Commissioner and the other by the
affected holder of the stock or interest”).
We simply observe that in the circumstances described in § 3.8(B) involving “any
stockholder, partner, or holder of any interest in a member club,” the arbitrator resolving
the dispute appears to be separate from the parties to the dispute. Though in certain
eventualities this separateness is less clear (for example, if the two arbitrators cannot agree
on the terms nor on the selection of the third arbitrator, “then such arbitrator . . . shall be

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“has been denied arbitration in any meaningful sense of the word,” we
conclude that this agreement is unenforceable.72 We need not resolve
the various other state law arguments raised by Defendants to support
the enforceability of the Flores-Patriots agreement because Flores
cannot be compelled to arbitrate any of the claims against them, given
that, as we have explained, the NFL Constitution’s arbitration
agreement is unenforceable.
B. The District Court Correctly Denied Arbitration of Flores’s
Claims Under the Steelers Agreement Against the New York
Giants and Houston Texans and Related Claims Against the
NFL
Flores also cannot be compelled to arbitrate his claims against the
Giants, Texans, or the related claims against the NFL, based on the
Flores-Steelers agreement, which incorporates by reference the same
named by the Commissioner”), the agreement marks a strong contrast with the agreement
before us. Id. art. III, § 3.8(B), J.A. 583.
Indeed, the agreement before us vests in the NFL Commissioner—an individual
who functions as the head of the NFL and who receives his salary from the owners of the
teams that compose the NFL—full and final jurisdiction and authority to arbitrate a federal
employment dispute brought against the NFL and some of its member teams.
72 Hooters of Am.,173 F.3d at 941.
Finally, it is important to note that our opinion does not conflict with our decision
in Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n, 820 F.3d 527 (2d
Cir. 2016). There, we conducted a “very limited” review of an arbitration award under the
Labor Management Relations Act, not the FAA. Id. at 536, 545 n.13 (quoting Major League
Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509 (2001)). The rights at issue in Nat'l Football
League Mgmt. Council were contractual, not federal statutory rights, and they were subject
to arbitration according to the terms of a collectively bargained for arbitration agreement.
Id. at 536.

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arbitration agreement in the NFL Constitution.73 As we explained, the
NFL Constitution’s arbitration agreement is unenforceable. We
therefore also need not decide the various state law issues that the
parties raise to support their respective arguments related to the
enforceability of the Flores-Steelers agreement. Finally, because we
conclude that the arbitration agreement in the NFL Constitution is
unenforceable, we further hold that the District Court did not abuse its
discretion in denying Defendants’ motion for reconsideration.74
III. CONCLUSION
To summarize, we hold as follows:
(1a) Flores’s agreement under the NFL Constitution to submit
his statutory claims against the Broncos and the NFL to the
unilateral substantive and procedural discretion of the NFL
Commissioner—the principal executive of one of Flores’s
adverse parties—provides for arbitration in name only and
accordingly lacks the protection of the FAA.
(1b) Flores’s agreement to submit his statutory claims against
the Broncos and the NFL to the unilateral discretion of the NFL
73 Flores-Steelers Agreement (Redacted), J.A. 515-522.
74 The District Court denied Defendants’ motion for reconsideration on state law
grounds. See Flores, 2023 WL 4744191, at *2-6. We do not review those bases for the District
Court’s decision, but because we hold that the District Court did not err when it denied
Defendants’ motion to compel arbitration, we affirm its denial of Defendants’ motion to
reconsider that decision.

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Commissioner is unenforceable because the agreement fails to
guarantee that Flores can “vindicate [his] statutory cause of
action in [an] arbitral forum.”
(1c) That same unprotected and unenforceable agreement also
cannot be used to compel Flores to arbitrate his claims against
the Giants and Texans or related claims against the NFL.
(2) The District Court did not abuse its discretion by denying
Defendants’ motion for reconsideration.
For the foregoing reasons, we AFFIRM the District Court’s
order denying the motion to compel arbitration of Flores’s claims
against the Denver Broncos, New York Giants, Houston Texans, and
NFL. We also AFFIRM the District Court’s order denying
reconsideration.

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