EDITOR’S NOTE: A version of this article was previously published on Forbes.com.

This spring, the U.S. Court of Appeals for the Second Circuit will hear oral argument on whether Coach Brian Flores should be required to arbitrate all of his race discrimination lawsuit against the National Football League.

Previously, a lower court sent part of his case to arbitration, and that arbitration is now under way. The Second Circuit had rejected Mr. Flores’ request to reconsider that decision.

As a result, in the three years since it was initially filed, Mr. Flores’ case has made no meaningful progress, and has now been hurt by comments from multiple players.

Mr. Flores kicks off

Mr. Flores filed his lawsuit in February 2022 after he was terminated as the head coach of the Miami Dolphins and was not hired for the same position with the New York Giants, Denver Broncos, or Houston Texans. Mr. Flores seeks to represent a class of Black coaches and executives whom he contends were similarly discriminated against. He has been joined in his lawsuit by two other Black coaches, Steve Wilks and Ray Horton. Their inclusion brought in claims against their former employers, the Arizona Cardinals and the Tennessee Titans.

Since 2023, Mr. Flores has been successful as defensive coordinator for the Minnesota Vikings and interviewed (unsuccessfully) for head coaching positions with the New York Jets, Chicago Bears, and Jacksonville Jaguars during this offseason.

The court penalizes Mr. Flores for a false start

In March 2023, the U.S. District Court for the Southern District of New York issued a decision largely granting the NFL’s motion to compel arbitration of Mr. Flores' lawsuit. The court determined that the coaches’ claims related to their respective employment with the Dolphins, Cardinals, and Titans must be arbitrated pursuant to the arbitration provisions in the coaches’ contracts with those clubs. The court also ruled that the arbitration agreements cover the coaches’ claims against the NFL. 

On the other hand, the court ruled that the arbitration provisions do not cover the claims against the Broncos, Giants, and Texans because the coaches had no contracts with them.

Mr. Flores had claimed that the arbitration provisions in his contract were unenforceable because they provided NFL Commissioner Roger Goodell the authority to hear the dispute. The court rejected that contention. Instead, the court reasoned, if Commissioner Goodell administered the arbitration in a biased manner, then Mr. Flores could come to court and request that the arbitration decision be vacated. But the court would not prejudge the fairness of the proceedings agreed to by Mr. Flores in his contract.

In July 2023, the court denied dueling motions for reconsideration of the court’s initial order. 

The case runs an option route

The NFL appealed to the Second Circuit the portions of the court’s order denying its motion to compel arbitration. Mr. Flores, on the other hand, had no right to an appeal at this stage of the proceedings, and both the district court and the Second Circuit denied his request that the Court consider an appeal.

The result was a bifurcation of proceedings.

In a letter to the Second Circuit dated September 24, 2024, the NFL informed the court that Mr. Goodell had designated Peter Harvey, the former Attorney General of New Jersey, as the arbitrator for the portion of the case that would go to arbitration. The NFL’s decision to appoint Mr. Harvey as the arbitrator is consistent with the NFL’s past practice. To avoid allegations of bias, Mr. Goodell has regularly appointed a neutral or near-neutral arbitrator to hear high-profile disputes. Indeed, Mr. Goodell had previously tagged Mr. Harvey to hear the NFL’s appeal of an initial disciplinary decision involving Cleveland Browns quarterback DeShaun Watson before that case settled.

The NFL’s arbitration process does not sit well with a dozen law professors with expertise in arbitration law, who filed a brief urging the Second Circuit to consider more broadly the potential impact of upholding the NFL’s process, which provides that any employment-related claims brought by NFL club employees are to be decided in an arbitration presided over by the Commissioner. The professors argued that permitting Mr. Goodell to be the arbitrator “is unconscionable and contrary to the norms of fundamental fairness” and would give employers across the country the incentive to use a similar dispute resolution process. Nevertheless, courts have demonstrated a long-standing deference to the authority of Commissioners to resolve disputes in their leagues.

If the NFL prevails at the Second Circuit, the claims against the Broncos, Giants, and Texans will go to arbitration. If the NFL loses, then those claims will be remanded to the district court for further proceedings.

New players emerge

Lost in the legal wrangling over the appropriate forum for adjudicating the case is one of the substantive questions to be answered – was the Dolphins' termination of Mr. Flores motivated by race discrimination?

Some potential witnesses seem to have lined up against Mr. Flores’ case. Mr. Flores coached the Dolphins from 2019 through 2022. His most important draft pick was quarterback Tua Tagovailoa, with the fifth overall pick in the 2020 NFL Draft. After Mr. Flores’ departure, Mr. Tagovailoa described him as a “terrible person” who repeatedly told him that he “suck[ed].” Based on this allegation, it seems likely that Mr. Tagovailoa believes Mr. Flores’ termination was related to his performance, not his race.

Similarly, Ryan Fitzpatrick, a journeyman quarterback who played for the Dolphins in 2019 and 2020, said Mr. Flores had become a “dictator” by the end of his tenure with the club and that he “broke” Tagovailoa. Mr. Fitzpatrick thus may also be a helpful witness for the Dolphins.

It the NFL loses at the Second Circuit this spring, it may try to resolve the cases and avoid litigating such sensitive issues in court. On the other hand, if the NFL wins, it may feel confident in asserting its defenses in the private arbitration. Either way, Mr. Flores has spent three years fighting procedural battles, only to see his claims weaken in the meantime.