When it comes to the NFL’s effort to send the Brian Flores case to arbitration, it’s apparently not over until the NFL says it’s over.
Regardless, the presiding judge has now made it abundantly clear that it’s over.
Despite a court ruling and an appeals court ruling that the claims brought by Brian Flores (against the Dolphins, Giants, Broncos, and Texans), Ray Horton (against the Titans), and Steve Wilks (against the Cardinals) must be decided in court, the NFL filed a motion to reconsider the ruling that slammed the door on arbitration.
On Wednesday, Judge Valerie Caproni denied the NFL’s latest motion.
The 15-page ruling begins with an expression of exasperation regarding the nearly four-and-a-half-year-old litigation: “This case continues to linger at the starting block. Or, to use a more fitting metaphor, this case continues to linger as the teams mill about in the players’ tunnels.”
Elsewhere in the written decision, there are some not-so-subtle indications of the judge’s impatience with the NFL’s efforts to keep fighting over a settled issue. From page 9: “Defendants can articulate no reason why these arguments were not raised in their response to Plaintiffs’ Motion for Reconsideration. . . . With sophisticated law firms, it is hard to fathom a plausible explanation.”
Also, from the same page: “Defendants opted for an iterative stream of arguments to buy themselves a few more months hanging out in the players’ tunnels. . . .”
Putting it another way, and as a judge said to the opposing lawyer in a case I was handling more than 20 years ago, “At some point, you stop arguing to the court and start arguing with the court.”
Judge Caproni’s order concludes like this: “Defendants’ seemingly-never-ending list of arguments why they should not have to litigate this case has run its course. Stepping back, while Defendants are free to spend endless attorneys’ fees to pursue the forum they think will be most advantageous to them, arguments about the superior efficiencies of arbitration ring hollow. . . . Instead of proceeding, discovery and motion practice for these three teams have been further delayed so this Court can deal with these teams’ attempt to take yet another run at how to avoid district court litigation and will, presumably, be delayed further while they pursue yet another appeal.”
It’s a mostly tactful way of saying to the NFL, “Enough. You’ve lost on this issue. Stop asking for arbitration and get to work on defending yourself in the litigation.”
Attorney Doug Wigdor issues a statement regarding the latest decision.
“At this point, the NFL and its teams have lost on this issue at the Second Circuit, were denied en banc review by the Second Circuit, were denied Supreme Court review and have now had the District Court twice confirm that the claims will not proceed in an NFL-controlled forum,” Wigdor said. “We hope the NFL and its teams will accept these rulings and proceed with the litigation.”
Presumably, that will happen. One of these days. Or, more accurately, one of these years.
