Justice Brett Kavanaugh was alone among his high court colleagues this week in claiming an interest in hearing an appeal from the NFL and several professional football teams in a dispute over whether they could force a race discrimination case into arbitration led by league commissioner Roger Goodell.
Because it takes four justices to grant review of a Supreme Court petition, Tuesday’s denial means the civil case brought by former Miami Dolphins head coach Brian Flores can proceed in court.
In declining to take up the appeal, the justices passed on what the petitioners said was an important question: whether a sports league’s arbitration agreement is unenforceable because it makes the league commissioner the default arbitrator and lets the commissioner develop the arbitration procedures.
Flores, now the Minnesota Vikings’ defensive coordinator, filed suit in the Southern District of New York in 2022, alleging he was unfairly treated and impacted by systemic race discrimination in the league. He claimed discrimination in his termination by the Miami Dolphins, and in the New York Giants’ and Denver Broncos’ failures to hire him.
“While racial barriers have been eroded in many areas,” he said in the complaint, the NFL “lives in a time of the past” and “remains rife with racism, particularly when it comes to the hiring and retention of Black Head Coaches, Coordinators and General Managers.”
Joined by fellow Black coaches Steve Wilks and Ray Horton, Flores later filed an amended complaint adding retaliation claims against the Houston Texans based on his removal from consideration for a head coach position after filing suit, as well as claims from Wilks and Horton alleging discrimination against the Arizona Cardinals and Tennessee Titans, respectively.
The Supreme Court denial appeared on the court’s order list, where the justices announce the latest action in pending appeals. Most petitions are denied without comment or any indication of which justices wanted to hear certain cases.
That made the denial in the Flores case noteworthy, because it offered some insight into the court’s thinking — even if it was only insight from one justice and an unexplained insight at that.
All the accompanying notation on the docket said was: “The petition for a writ of certiorari is denied. Justice Kavanaugh would grant the petition for a writ of certiorari.”
Again, that’s more than we usually see on the order list, which consists mostly of unexplained denials without any dissent notations. Sometimes, justices who disagree with the court’s refusal to take up a case will publish a dissent explaining their views — as Justice Clarence Thomas, joined by Justice Samuel Alito, did that same day in a separate case.
Those sorts of explanations can be helpful not only for the general principle of knowing why the justices take the actions they do, but also for signaling what litigants might need to do to win review in a future appeal.
Of course, even a written explanation from Kavanaugh would have been the view of only one justice.
The Trump appointee has described himself as a “huge sports fan” and has gone out of his way to share his views in previous sports-related cases.
In a 2021 ruling involving NCAA athletics, Kavanaugh wrote a lone concurring opinion “to underscore that the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws.” He concluded his solo concurrence by proclaiming: “The NCAA is not above the law.”
In a 2020 case involving the NFL, in which the justices declined to hear an appeal over the league’s contract with DirecTV for televising out-of-market games, Kavanaugh penned a solo statement to make clear that, even though the court denied review that day, he thought “the NFL, its teams, and DirecTV … have substantial arguments” in their favor.
Even if the court had granted review in the Flores case, that only would have meant that the justices agreed to consider the issue. It would not have guaranteed any particular outcome, though obviously the NFL and the teams in the suit wanted a chance at upending the federal appeals court ruling against them.
The appeals court said Flores submitting to an arbitration process controlled by the commissioner — who, the court noted, is the principal executive of one of the plaintiff’s adverse parties — would be arbitration “in name only.”
But that was overly protective of Flores, the league and the teams said in their failed Supreme Court petition. They said the appeals court violated the “fundamental principle” that federal law protects “not only the parties’ decision to arbitrate but also their chosen arbitration procedures, including their choice of arbitrator.”
Successfully opposing review, Flores’ lawyers cast the appellate ruling as unremarkable and therefore unworthy of Supreme Court review, writing that no appellate court in the country “has ever held that the chief executive of an employer may arbitrate statutory employment discrimination claims, whether in the context of professional sports leagues or otherwise.”
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