NFL Commissioner-Driven Arbitration Versus Other Sports League Arbitration Procedures

By Victoria Gracia

Former Miami Dolphins head coach Brian Flores and two other former NFL coaches filed a punitive class action in Manhattan federal court against the NFL in 2022, alleging the league engages in racially discriminatory hiring and retention practices.[1] The NFL moved to compel arbitration pursuant to the provision in its employee contract that incorporates the NFL’s constitution, which includes an arbitration clause.[2] In March 2023, U.S. District Judge Valerie Caproni held that the NFL failed to meet its burden demonstrating that Flores entered an enforceable agreement to arbitrate; therefore, Flores could pursue his claims in federal court, while his two co-plaintiffs were required to arbitrate.[3] The District Court denied the parties’ cross-motions for partial reconsideration of the March 2023 decision; both parties appealed.[4] On August 14th, 2025, the second circuit panel affirmed the District Court’s order denying reconsideration, as well as the underlying March 2023 order.[5] The second circuit held that the NFL’s arbitration provision, which grants the NFL commissioner unilateral substantive and procedural arbitrational authority over statutory claims, provides “arbitration in name only and accordingly lacks the protection of the Federal Arbitration Act.”[6] This unilateral discretion vested in the commissioner, “the ‘principal executive officer’ of . . . [the] adverse part[y],” violates the guarantee of effective vindication of federal claims in the arbitral forum, and was therefore unenforceable.[7]

In response, the NFL petitioned the Second Circuit for an en banc rehearing on this finding in September 2025.[8] Among the several arguments made by the league in their petition, the NFL warned that the Second Circuit’s decision threatened to disrupt “long-standing, broad arbitration provisions of sports leagues that delegate to the league commissioner the authority to resolve disputes.”[9] The NFL noted that the MLB, NBA, and NHL all utilize “materially similar arbitration provisions” that it claimed would be adversely affected by the Second Circuit’s ruling.[10] Contrary to the NFL’s assertions, there are significant differences between the NFL’s “Commissioner-Driven” arbitration provisions and those utilized by the NBA and NHL, which rely on what is characterized as “Collective Bargaining Agreement Governed Arbitration.”[11]

I.               Commissioner-Driven v. Collective Bargaining Agreement Governed Arbitration

The traditional governance model of professional sports leagues in the United States is a hierarchical structure, with concentrated authority in league owners.[12] Both the NFL and MLB operate under a traditional hierarchical structure.[13] Although both organizations have evolved towards a more collaborative model through Collective Bargaining Agreements (CBA) with Player Associations, these expansions of player autonomy have been constrained within the leagues’ overarching hierarchical framework.[14] The NBA operates under a “franchise-oriented governance model,” allocating governing authority between the commissioner and a board of governors comprised of representatives from the independently operating teams.[15]

The NFL’s primary dispute resolution mechanism, governed by the NFL constitution, grants the NFL commissioner sole procedural and substantive authority over most statutory claims, including non-player employment disputes.[16] The NFL’s current CBA altered the arbitral structure slightly by removing the commissioner’s exclusive authority in disputes over contracts, salaries, and discipline, replacing it with system, impartial, and grievance arbitrators jointly selected by both parties to the dispute.[17] However, the effect of these changes is limited, as the commissioner retains final appellate authority over disciplinary disputes and other review powers for different subject matters.[18] Furthermore, this agreement does not modify the arbitral scheme for other disputes, such as the employment discrimination claim at issue in Flores.[19]

While the NBA’s constitution also contains a general arbitration provision,[20] this provision is part of a broader collective scheme whereby disputes are also heard by a grievance or system arbitrator, depending on the subject matter.[21] The disputes subject to the sole authority of the NBA Commissioner are limited to those arising between members, which have been construed as disputes between two NBA franchise teams.[22] In practice, these disputes have been limited, primarily involving cases of tampering and on-court conduct.[23] The majority of disputes are governed by the NBA’s current CBA, which requires arbitrators to be selected jointly by the league and the players’ union.[24] In short, contrary to the NFL’s contention in its September 2025 petition for rehearing, the NBA’s decentralized governance structure and multi-faceted arbitration system balance decision-making authority between member teams, players, and league officials. Conversely, the NFL’s hierarchical governance structure and commissioner-driven arbitration system vest broad decision-making authority in the NFL commissioner over a wide variety of statutory claims, despite the changes contained in the NFL’s 2020 CBA.

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[1] Zachary Zagger, Ex-Dolphins Coach Sues NFL, Alleging Systemic Race Bias, LexisNexis: Law360 (Feb. 1, 2022, at 16:36 ET), https://www.law360.com/employment-authority/articles/1460925 [https://perma.cc/8PA4-495P].

[2] Nat’l Football League, Constitution and Bylaws of the National Football League (Feb. 1, 1970) (Sept. 14, 2016), [hereinafter NFL Constitution] https://s3.documentcloud.org/documents/23170921/nfl-constitution-and-bylaws.pdf [https://perma.cc/VRT7-QPTV].

[3] Flores v. NFL, 658 F. Supp. 3d 198, 206 (S.D.N.Y. 2023).

[4] David Steele, Coaches ask for Lower Court Redo on ‘Sham’ NFL Arbitration, LexisNexis: Law360 (Sep. 17, 2025, at 16:34 ET), https://www.law360.com/articles/2389148/coaches-ask-for-lower-court-redo-on-sham-nfl-arbitration [https://perma.cc/W95Q-W5TM].

[5] Elaine Briseño, 2nd Circ. Denies NFL Arbitration in Flores Case, LexisNexis: Law360 (Aug. 14, 2025, at 13:55 ET), https://www.law360.com/articles/2377179/2nd-circ-denies-nfl-arbitration-in-flores-case [https://perma.cc/JY94-LSJS].

[6] Flores v. N.Y. Football Giants, Inc., 150 F.4th 172, 176 (2d Cir. Aug. 14, 2025).

[7] N.Y. Giants, 150 F.4th at 183; see Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985) (establishing effective vindication doctrine).

[8] Elaine Briseño, NFL Warns Arb. Ruling Could Disrupt Sports Dispute Process, LexisNexis: Law360 (Sep. 19, 2025, at 17:16 ET), https://www.law360.com/articles/2390222/nfl-warns-arb-ruling-could-disrupt-sports-dispute-process [https://perma.cc/9R73-PK67].

[9] Petition for Rehearing En Banc by Appellants at 7, Flores v. N.Y. Football Giants, Inc., 150 F.4th 172 (2d Cir. Aug. 14, 2025) (No. 23-1185-cv).

[10] Petition for Rehearing En Banc by Appellants at 9–10, N.Y. Giants, 150 F.4th 172 (No. 23-1185-cv).

[11] Gurtej Grewal, Arbitration Practices in Professional Sports: A Comparative Analysis, Penn St. L. Rev.: F. Blog (Mar. 5, 2025), https://www.pennstatelawreview.org/the-forum/arbitration-practices-in-professional-sports-a-comparative-analysis/ [https://perma.cc/N3LD-UXGK].

[12] Yanxue Hu & Shengfang Shu, Exploring the Dynamics of Governance: An Examination of Traditional Governance and Governance Innovation in the United States Professional Sports Leagues, Heliyon, July 15, 2024, at 1.

[13] Id.

[14] Id. at 2.

[15] Id.; Nat’l Basketball Ass’n, Constitution and By-Laws of The National Basketball Association (May 29, 2012), [hereinafter NBA Constitution] https://ak-static-int.nba.com/wp-content/uploads/sites/3/2015/12/NBA-Constitution-and-By-Laws.pdf [https://perma.cc/NGM6-V5T7].

[16] N.Y. Giants, 150 F.4th at 182; Grewal, supra note 11; NFL Constitution, supra note 2, at Art. VIII.

[17] Nat’l Football League Players Ass’n, Collective Bargaining Agreement art. 15–16 (Mar. 15, 2020) [hereinafter NBA CBA] https://nflpaweb.blob.core.windows.net/website/PDFs/CBA/March-15-2020-NFL-NFLPA-Collective-Bargaining-Agreement-Final-Executed-Copy.pdf [https://perma.cc/5DN8-CPWG].

[18] Id.; Adam Walker, Player Discipline in the NFL: Arbitration or Arbitrary?, 2023 J. Disp. Res. 180, 181 (2023).

[19] See, e.g., NFL, 658 F. Supp. 3d at 205–06.

[20] NBA Constitution, supra note 15, at art. 24(d).

[21] Jeffrey A. Mishkin, Symposium, Dispute Resolution in the NBA: The Allocation of Decision Making Among the Commissioner, Impartial Arbitrator, System Arbitrator, and The Courts, 35 Val. U. L. Rev. 449, 449–460 (2001); NBA CBA, supra note 18, at art. 31–32; Grewal, supra note 11.

[22] NBA Constitution, supra note 15, at art. 24(d); Mishkin, supra note 22; N.Y. Knicks, LLC v. Maple Leaf Sports & Ent. Ltd., No. 23-CV-7394 (JGLC), 2024 U.S. Dist. LEXIS 114056, at *1 (S.D.N.Y. June 28, 2024).

[23] Mishkin, supra note 22, at 450–51.

[24] Id.; Grewal, supra note 11; NBA CBA, supra note 18, at art. 31–32.