In the great sitcom Blackadder Goes Forth, our eponymous “hero” finds himself facing a court martial, having unwittingly killed and eaten the beloved pet pigeon of his commanding officer, General Melchitt. Not to worry, as he says, “any reasonably impartial judge is bound to let me off.”

Enter, as his judge, Colonel Melchitt himself, who immediately refers to Blackadder as “the Flanders pigeon murderer” and sentences him to death by firing squad.

This week, NFL coach Brian Flores argued to the Second Circuit that he finds himself in a similar (if, granted, less life-threatening) situation. Broadly, Flores filed a lawsuit alleging that various NFL teams, and the NFL itself, engaged in discriminatory employment practices designed to keep him, and other minority coaches, from positions of power and authority in the NFL. One of the methods Flores alleges is that teams would bring him (and other plaintiffs, like Steve Wilks) for an interview purely to comply with the "Rooney Rule" (i.e. NFL teams must interview minority candidates for head coaching positions), but without any actual intent to hire.

As readers may recall, Flores was alerted in part to this alleged chicanery because Bill Belichick accidentally sent a congratulatory text message to the wrong “Brian,” a timely reminder: (1) that Bill Belichick may be the only person watching the news this week and thinking “well, that could happen to anyone”; and (2) of the sheer, extraordinary number of NFL head coaches named Brian. Including Flores (who alleges if not for the NFL’s discriminatory practices, he would still be an NFL head coach), along with current head coach Brians Daboll, Callahan, and Schottenheimer, that would make an incredible 12.5% of NFL head coaches named “Brian,” a truly remarkable result for America’s 345th most popular boy’s name.

Anyway, the NFL (and the NFL team defendants) are arguing that Flores’ case should be arbitrated – rather than litigated in the Southern District - because the various contracts Flores had with these teams contain arbitration clauses. This week, Flores argued to the Second Circuit that the NFL’s arbitration clauses are unenforceable because (a) they mandate that the NFL can choose the arbitrator; and (b) the NFL can choose NFL Commissioner Roger Goodell as the arbitrator (during argument Judge Lynch neatly summed up the position as “you have a dispute with me, that will be arbitrated by me”). Per Flores, this makes the clauses “unconscionable.”

This case has huge implications not only for the NFL, but far beyond. It is estimated that more than 60 million American workers are bound by arbitration agreements, and more than 80% of America’s largest companies use arbitration agreements to determine employment disputes. Most serious arbitrating bodies (AAA, JAMS and so forth) will underscore that securing the right arbitrator is one of the most important parts of the process.

Flores suggests that Goodell may possibly not be the most neutral arbitrator, what with his being “professionally and financially beholden to the NFL and its teams,” “personally represented by the same attorneys representing” the NFL, being paid “tens of millions of dollars” a year to protect the NFL’s interests, and having very publicly issued a statement the day that Flores’ case was filed calling it “without merit.” As Flores’s attorney stated during argument: “without hyperbole, Mr. Goodell may be the most biased arbitrator of this case on the planet.”

As argued in an amicus brief filed by various esteemed arbitration practitioners, the Second Circuit has the power with its decision to create a monumental shift, not only giving employers the power to unilaterally choose the arbitrator, but to pick one with a significant vested interest in the employer securing a favorable outcome. If the Second Circuit rules that the arbitration provision is enforceable, it opens the door for other employers to utilize similar clauses.

When not offering a scathing assessment of the fortunately unidentified attorney who drafted the Pittsburgh Steelers’ arbitration clause (“a mess”), Judge Lynch seemed to pose the exact question raised by the amicus brief: what stops any employer in the United States doing this? Why wouldn’t every employer insist that the arbitrator of any complaint be the company CEO?

If the Second Circuit rules in favor of the Defendants (if, indeed, the Second Circuit rules on the issue at all – the Defendants argue that while the clauses are not unconscionable, that question should be remanded to the District Court), the answer may well be “nothing.”

Charles Bergin is an attorney at Kaufman Dolowich LLP. His practice focuses on labor and employment law, business litigation, immigration law and general liability defense. He has a background in entertainment law, sports law, and insurance litigation. He was named a New York Metro “Rising Star” in the field of “Business Litigation” each year from 2020-2024, as a “Top Attorney In Westchester” by Westchester Magazine,  and in 2024 was recognized by Super Lawyers Magazine as one of the “Top Attorneys In America."