PRO-TIP: If you want to arbitrate employment claims, have an arbitration agreement.

A client embroiled in an employment dispute with a former employee once asked me if we could force the employee into arbitration. So, I asked the client for a copy of the arbitration agreement that the individual had signed.

After an uncomfortably long pause, I went back to drafting the complaint to be filed in court.

I thought of that conversation as I read the long-awaited decision from Judge Caproni in the Brian Flores lawsuit against the National Football League and four teams. Mr. Flores, the former head coach of the Miami Dolphins, claims that the Miami Dolphins, New York Giants, and Denver Broncos discriminated against him based on his race. He further alleges that the National Football League and its 32 teams have systemically undermined the hiring and retention of Black head coaches, coordinators, and general managers. I recorded a video about it here.

Mr. Flores wanted to litigate his race discrimination claims, and the defendants wanted to arbitrate them.

The parties ended up with a mixed bag.

Mr. Flores had an employment agreement with the Miami Dolphins, the only team that employed him as its head coach. That employment agreement contained an arbitration provision. And that arbitration provision requires Mr. Flores to arbitrate claims arising from his employment with the Dolphins. So, he’s stuck with that.

And since he’s alleging that the Dolphins and NFL jointly engaged in discrimination and retaliation, the NFL gets to arbitrate those claims too.

Mr. Flores did not have employment agreements with any of the other defendants. The Pittsburgh Steelers subsequently hired Mr. Flores as an assistant coach, and Mr. Flores signed an employment agreement with them. But the court wasn’t necessarily buying the argument that any arbitration agreement in that document should have a retroactive effect and apply to his claims against the Giants and Texans.

Besides, the version of the Flores-Steelers Agreement submitted to the court never became binding on Mr. Flores or the Steelers because the NFL Commissioner never signed it, which was a prerequisite. Mr. Flores gets to litigate his claims against those teams and any related claims he has against the NFL.

That leaves the Broncos.

Before Mr. Flores’ had any claims against the Broncos, the New England Patriots employed him as an assistant coach. Mr. Flores’s contract with the Patriots required him to comply with the NFL Constitution, including its arbitration provision, in its “present form and as amended from time to time hereafter.”

Wait, hold up! The NFL could change the arbitration provision unilaterally?!? Under Massachusetts law, the arbitration agreement is illusory and unenforceable if the party seeking to enforce the arbitration provision retains the unilateral discretion to alter its terms without notice.

In plain English, the Broncos can’t connect the dots to bind Mr. Flores to arbitrate claims under the Patriots’ agreement with him.

So Mr. Flores will have his day in court AND arbitration.