Updated: Aug 10
Image via: https://dolphinnation.com/2021/10/13/brian-flores-issues-surprising-response-to-jon-gruden-controversy/
By Daniel Wallach
A key legal argument that the NFL recently asserted in the Jon Gruden lawsuit may undermine one of its main defenses in the Brian Flores lawsuit. Last week, the parties in the Flores case jointly filed a proposed "civil case management plan and scheduling order" with the court. That document is particularly enlightening for several reasons. First, from a clarity standpoint, the proposed case management plan provides a succinct overview of the claims and anticipated defenses. More revealingly, the case management plan also offers a "preliminary peek" into the motions and legal arguments that each side will be making over the next several months. And one of those arguments is at variance with statements previously made by the NFL in the Gruden case.
At the bottom of page 3 of the joint filing, the NFL asserts that it is not a proper defendant in the Flores lawsuit because it does not hire coaches, only the teams do. The NFL maintains that it "is not and has never been Plaintiffs' employer under the relevant statutes (notwithstanding Plaintiffs' conclusory assertions to the contrary), so as a matter of law it is not subject to liability for the actions challenged here." Although the plaintiffs do not address that argument head on, I would expect them to later argue in response to the league's motion to dismiss that the NFL is a "joint employer" (and therefore liable) because it exerts significant control over each team's hiring of coaches and general managers, including by mandating compliance with the Rooney Rule.
Likewise, the NFL's ability to discipline and fire coaches--a right it plainly possesses under the NFL Constitution and Bylaws--is another factor militating in favor of a finding that the league is a "joint employer." Federal courts, including those in the Second Circuit (where the Flores case in pending) have recognized that the authority to "fire and discipline" can bear on whether an entity, even though it is not the formal employer, may be considered a "joint employer" under Title VII. See Felder v. United States Tennis Ass'n, 27 F.4th 834, 838 (2d Cir. 2022).
And this is where the NFL's legal arguments in the Gruden lawsuit could come back to haunt the league in Flores. In their motion to dismiss filed with a Nevada state court in early January, the NFL argued that it had the right--independent of the Las Vegas Raiders--to fire Gruden for sending racist, misogynistic and homophobic emails, reasoning that Section 8.13(A)(2) of the NFL Constitution and Bylaws granted them that right:
In any event, had the NFL Parties wanted to fire Gruden, they had no need to resort to “leaks” to force his resignation (or to force the Raiders to fire him), because they themselves had the right to cancel Gruden’s contract: the NFL Constitution grants the Commissioner the “complete authority to . . . [s]uspend and/or fine” or “[c]ancel any contract or agreement” of any “coach” “[w]henever the Commissioner, after notice and hearing, decides that” the coach “has either violated the Constitution and Bylaws of the League or has been or is guilty of conduct detrimental to the welfare of the League or professional football.” (NFL Constitution § 8.13(A)(2).
(NFL Motion to Dismiss, at p. 9).
This prior admission implicates principles of "judicial estoppel," a legal doctrine that prevents litigants from advancing diametrically opposite positions in different lawsuits. I would expect the plaintiffs in the Flores case to cite the above constitutional language--as well as the NFL's prior admission in Gruden--to counter the NFL's expected assertion in the Flores case that it is not an "employer" for purposes of Title VII or Section 1981. Given the significant control that the NFL exerts over the hiring, firing, and disciplining of NFL coaches--a right that the NFL recently touted in another lawsuit filed by a different former head coach--the plaintiffs in the Flores case may now have enough ammunition to withstand a motion to dismiss directed to the "employer" issue.
Daniel Wallach is the co-founder of Conduct Detrimental. He is a nationally-recognized gaming and sports betting attorney. You can follow him on Twitter at @WALLACHLEGAL.