Unpacking Brian Flores' lawsuit against the NFL, including next steps | PFTPM (FULL) | NFL on NBC

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[00:00:00]Welcome to a special May 29 edition of PFTPM.

[00:00:05]Given the decision that was made this week by the US Supreme Court in the Brian Flores case, I thought it was a good opportunity to explain in the simplest terms possible what this case is about, what's happened since it was first filed, and where it goes from this point forward.

[00:00:28]I posted a call for questions on Twitter last night and I'm not going to answer them individually. I'm sorry, but I have considered all of them in coming up with what I'm planning to talk about. I actually actually have notes more more notes than would fit on one of the note cards I stole from NBC. This is actually my own paper that I I paid for at Staples or wherever. So, this thing started February 1 of 2022 in the weeks after Brian Flores was fired by the Miami Dolphins. And I remember when I first heard that he was suing the Dolphins and others. We'll get to that. I was stunned because I never thought there would be a case like this. The Rooney rule was created in 2003 with the involvement of the late Johnny Cochran and Cyrus Mary.

[00:01:29]They basically said to the league, you got to do something because if you don't, there's going to be litigation.

[00:01:34]And so the league created the Rooney rule, which is not a hiring mandate.

[00:01:38]It's just a device for requiring teams to interview a diverse set of candidates. At the end of the day, the teams decide who they're going to hire.

[00:01:48]And the history of the hirings from 2003 forward and definitely prior to 2003 show that the numbers don't match the demographics of the player population.

[00:02:01]But I never thought anyone would actually file a race discrimination lawsuit against the league because when you do it, you've got to be willing to trade in your career permanently. I never thought Drian Flores would be hired again after he filed the lawsuit.

[00:02:18]He ended up worked for the Steelers and assistant coach that same season. Has been with the Minnesota Vikings for three years since then as defensive coordinator, knocking on the door to try to be a head coach. Again, that's been tied up in this lawsuit. So, I've been pleasantly surprised that Brian Flores wasn't ostracized. Steve Wils also has not been ostracized. He's currently not employed, but he's had multiple jobs since he was added to the case. But that first act, that gesture of being the ones to stand up and challenge the NFL regarding a history that suggests collective and individual racial bias when it comes to hiring coaches and general managers. I just never dreamed anybody would take on that fight. Brian Flores has. He hasn't paid for it yet with his coaching career, but as you'll come to understand over the course of however long it takes me to get through this, he's probably sacrificed the ability to be an NFL head coach again.

[00:03:20]I'll be very surprised if it becomes an NFL head coach for a second time. So case was filed February 1, 2022 as a class action, which means it's filed on behalf of Brian Flores and all similarly situated individuals who have been impacted by the allegation of racial discrimination as it relates to the biggest jobs in the NFL, coaching and presumably general manager. I don't have the civil complaint in front of me and the current version is some 106 pages long, but basically it is a full-on attack against the NFL's history of alleged or actual racial bias when it comes to these most significant of NFL jobs. Not long after Brian Flores filed the initial lawsuit, Steve Wilks and Ray Horton joined as well. I'll get to what their specific claims are in a bit. And then not long after the initial lawsuit was filed by Brian Flores, he added a claim for retaliation against the Texans. I'll get into that as well.

[00:04:32]The first step in this, and this is true virtually anytime the NFL is sued, they look for a way to force the case into arbitration. Ideally, they're in-house, say it with me now, secretrigged kangaroo court of arbitration where the commissioner ultimately controls the arbitration. And if he wants, he can serve as the arbitrator. And if not him, he designates who will serve. And the very common suspicion is he will be inclined to designate someone who is going to understand the assignment and do what is expected because if you do that, you know what happens? You get more assignments.

[00:05:20]It's kind of how the world works. So the NFL wants any claim made by a non-player because the players are covered by the CBA. any non-player where they can put the language into the contract, the arbitration clause that gives the NFL full authority over the arbitration process. You put yourself in a position where the scales of justice are going to more likely tip in the NFL's favor and everything happens secretly. No dirty laundry is made available for public inspection.

[00:05:59]the man behind the curtain stays behind the curtain. There's another reason why they prefer that approach. So, step one, file a motion to dismiss the entire case arguing that it should have been pursued in arbitration.

[00:06:17]And through four years and 4 months, all that's really been resolved is that.

[00:06:28]That's what Tuesday's decision from the Supreme Court was. The Supreme Court declined to accept the NFL's appeal after the NFL ultimately lost the ability to push any of these claims into arbitration. At first, the NFL had a partial win. Some claims would go to arbitration. Some claims would be pursued in open court. And there was lingering fights over that. Brian Flores and his co-planifists and their lawyers were trying to get the ruling changed as to the claims that were sent to arbitration. The NFL wanted the claims that were allowed to proceed in court to go to arbitration. And along the way, the argument crystallized that this whole process stinks.

[00:07:17]This idea of the NFL having an arbitration process that is forced upon the people who sign the contracts.

[00:07:26]And if you're going to be a head coach of an NFL team, they're going to give you a contract. It's going to have a bunch of boilerplate language in it. And one of the standard clauses is going to be any dispute you may have gets submitted to arbitration to be resolved by the NFL. And with the arbitrator being either the commissioner or the commissioner's designate. So you got to take it. You got to sign it. You're not going to say no. You're not going to say I don't want to be an NFL head coach.

[00:07:53]I'll worry about potential legal claims later. Right now I'm worried about being a head coach.

[00:08:00]And there's only 32 of these jobs. And every team was using the standard language that that requires these cases to go to arbitration because the NFL doesn't want any of its teams to have to defend itself in court. So step one, the whole case try to get it to arbitration. And along the way, as I was saying, the argument came up that none of the claims should go because the whole process is flawed.

[00:08:30]The whole process is not in keeping with the spirit of the federal law that was created to encourage parties to have private arbitration agreements that take cases out of court. This entire industry of arbitration flows from the idea that the court's got enough to do. The various federal courts throughout the 50 states, we got enough to do.

[00:08:59]We are going to welcome a willingness by two parties. We've negotiated a contract and have agreed as part of that arrangement. We're going to submit our claims to arbitration. That's good for the courts. Courts don't get paid by the case. Courts don't get paid by the hour.

[00:09:18]The judges get paid salary that is independent of how busy or not busy their docket is. So the Federal Arbitration Act has become a very popular tool for incentivizing parties to go to arbitration. And big companies love it. You put it in employee handbooks. You put it in employee contracts. You put it in the the fine print of service contracts. I was going to get a new alarm system at the house a few years ago and the the company gave me this boilerplate contract and on the back side there was an arbitration agreement. I read it and I didn't like it and I said unless you take it out I'm not signing. Most people aren't going to say that. So teams and companies and the league generally are in a position to force people the average people are on the wrong end of these arbitration agreements to accept it and move forward. So when the federal district court threw out the entire arbitration clause, the NFL appealed it to the US Court of Appeals for the Second Circuit, they threw out the arbitration clause. That's what led us to what happened this week. The NFL files a petition for appeal with the US Supreme Court and the US Supreme Court declines to take the case. Very small percentage of cases presented to the US Supreme Court are accepted. One of the key things they look for cuz there are 12 13 different federal circuits. The country is broken up into these chunks where the second circuit has New York and some other states. West Virginia, where I am right now, it's in the fourth circuit along with Virginia and other states. I used to I used to know more about where all the circuits were and what states were in them. But you could have a situation where one circuit has resolved a question one way, the other circuit has resolved it a different way.

[00:11:14]This circuit agrees with that circuit, that circuit agrees with this circuit.

[00:11:18]So, we need the Supreme Court to straighten everybody out. That's one way to get the Supreme Court to take on a case. Another way to get him to take on a case is if you can convince them there is just a clear and egregious error of law that can otherwise not be remedied anyway any place anyhow. So at the end of the day the Supreme Court says no.

[00:11:39]Now Justice Brett Kavanaaugh dissented from the decision to decline the case which likely means he would have sided with the NFL. You're not going to take up the case so you can affirm it. You're going to take up the case so you can overturn it. One little interesting tidbit in that years ago, Cowboys owner Jerry Jones gave Justice Clarence Thomas a Super Bowl ring. And there's been some public commentary about that. And Jerry Jones basically said, "We're not trying to buy justice basically." And if they were, it didn't work because Clarence Thomas did not desent from the decision to not take up the appeal. So here's what that means as it relates to Brian Flores, Ray Horton, and Steve Wils.

[00:12:26]Case goes forward in court. It's over.

[00:12:30]Their case, it's over. Maybe at some point in the future, there will be a split among the various federal circuits and the Supreme Court will get involved and find in favor of the NFL. For now, second circuit, New York State, the other states in that circuit, the law of the land is this arbitration clause is no good. And for the Brian Flores case specifically, the arbitration clause is gone. Everything is going to be decided in open court, which is bad for the NFL because it removes that tipping of the scales in the NFL's favor. And it also exposes all sorts of stuff that's going to come out in the case potentially to us, the media, you, the fans. Everyone can see what's really going on. everyone gets access to whatever information is brought to light during the litigation process. So, here are the claims just so everyone's on the same page. Brian Flores filed a race discrimination claim against the league generally against the Dolphins for firing him based in whole or in part on race against the Broncos and the Giants for past sham interviews where he was interviewed as a Rooney Rule candidate but he wasn't a serious candidate for the job after he filed his lawsuit and he was one of the finalists for the Texans job. It was Brian Flores, Jonathan Ganon, Josh Macau. They were the finalists. Ganon dropped out. It came down to two guys, Flores and Macau.

[00:14:00]And if they would have hired Macau, who had no coaching experience at the time at the NFL level over Flores, it would have been glaring that other issues are being considered beyond the qualities and the merits of the coaching candidates. So, they went off the board and they hired Lovey Smith.

[00:14:16]So, even though Lovey Smith is an African-American coach, the argument is Flores would have had the job if he hadn't filed his lawsuit. That the Texans were looking for a way to take the heat out of the hot kitchen here.

[00:14:30]They had wandered into this this mess where oh my gosh, we may we may be hiring as our next head coach this guy that just sued the NFL. That's not going to be good for business.

[00:14:44]We're going to get the cold shoulder at the annual collusion meetings as D.

[00:14:48]Smith calls them. They're going to be upset with us. This guy who's got a lawsuit and he's going after the NFL on all sorts of claims. Our partners are going to be upset with us. That's the argument that it was in retaliation for the existence of the lawsuit for exercising his rights under federal law.

[00:15:02]And you know, a lot of people think it's okay to retaliate against someone who does something that you don't like. It's not okay. If you engage in protected activity and filing a lawsuit alleging race discrimination in the workplace, that's enough to get you protection against retaliation.

[00:15:21]It imposes an extra obligation on the company to not consider it, to not allow that to cloud their opinion of and attitude toward and opportunities afforded to the employee. So that's the argument that was made against the Texans. Steve Wils, he had been the Cardinals coach for one year. He was fired and he's got specific claims along the lines of he was made to be the scapegoat at a time when the former GM Steve Kim was suspended. And there's other allegations that have been made about and I think this came up in Terry Mcdana's arbitration claim against the NFL, which the the facts of that case were so bad for the Cardinals that Mcdana actually won. Now, if he'd had gone to open court, he probably would have gotten 20 times the amount that he got in the arbitration from a truly impartial jury. But there's this argument that Michael Bidwell, the owner of the Cardinals, was requiring the the staff who were working while Steve Kim was suspended to use burner phones to talk to him. And that's all going to be part of the Steve Wils case. Ray Horton sued the Titans for being passed over to be the head coach. Now, this was a while ago and it's beyond the operable statute of limitations.

[00:16:37]You can't sue. You can, but the silver bullet defense is you waited too long.

[00:16:43]The period for filing this lawsuit is barred by the applicable statute of limitations.

[00:16:51]The kicker for Ray Horton is that in 2020, former Titans coach Mike Malarkey, who got the job instead of Ray Horton, said on a podcast that one of his regrets is he went through this sham interview process with the Titans knowing that he was getting the job. They told him he's getting the job, but they just have to go through this interview process before they hire him, which would make the Horton interview necessarily a sham. And the argument will be that Ray Horton didn't know about it until Mike Malarkey said it. It's called the discovery rule. The statute of limitations is told.

[00:17:28]The 2-year period doesn't run until you know or have reason to know that something fishy happened. The NFL will have some arguments, but you know, if the best argument is, oh, he should have known that we we have racial biases. He he just look around like why was it a surprise that he found out that it was a sham interview four years later? They're all sham interviews. I mean it's kind of a tough argument for the NFL to make. So those are the basic claims in a nutshell with one extra actually two extra that are worth mentioning. Remember the claim from Brian Flores that he was offered $100,000 per loss by owner Steven Ross in 2019. And that's when the Dolphins were trying to get themselves in position to draft Joe Burrow. Steven Ross was obsessed with getting Joe Burrow. They ultimately didn't finish with the worst record in the league. They had the number five overall pick and the Bengals refused to engage in trade discussions, but the goal was to get to number one.

[00:18:32]And Flores basically argues he was a whistleblower because he raised the concern internally that the owner was offering him money to deliberately lose games.

[00:18:44]Steven Ross' position was and still is.

[00:18:45]It was a joke. I was and still am looking for the punchline. But the argument is that one of the reasons for the firing of Brian Flores was the internal mess he created by blowing the whistle on Steven Ross trying to offer him $100,000 for each loss when the Dolphins were trying to tank to get themselves in position to draft Joe Burrow. And then the last claim, and this is new, a general claim of retaliation against the league with no specific teams named yet based upon the league retaliating against Flores for his lawsuit, for the arguments he's made, for the damage he's done to the arbitration process.

[00:19:24]He's been frozen out of head coaching opportunities because of the mere fact that he stood up for himself. And this unlocks an avenue of investigation that will encompass all head coaching vacancies in 2022, 23, 24, 25, and 26. And hell, also maybe 27 and 28 given the speed with which civil justice sometimes moves or doesn't move in the USA.

[00:19:56]every vacancy. Was he considered? Why wasn't he considered? Did he get an interview? Why didn't he get an interview? If he got an interview, why didn't he get hired? It's going to be a lot of work. It's going to be a lot of effort. But these kinds of cases entail that kind of laborintensive, creative, aggressive pursuit of circumstantial evidence.

[00:20:26]There are different types of law that people who represent individuals can practice. And it's a lot easier and it's a hell of a lot more lucrative to represent people who have been injured in accidents, auto accidents, truck accidents, because every truck that's rolling around on the interstates carrying at least 10 million in insurance. And when there's an accident, it's a big accident. And the injuries are serious. You make a hell of a lot of money if you sue trucking companies. And you don't have to prove liability.

[00:20:52]That's all determined. Guy fell asleep at the wheel. Guy was working too many hours. Guy changed the lane improperly.

[00:20:59]That stuff usually is easy to figure out. When you're talking about trying to prove that somebody was fired for improper reasons, not hired for improper reasons, no one's ever going to get on the witness stand and admit it. You have to put together a tapestry of circumstantial evidence that proves that the company's position is It's hard to do. a lot of effort, a lot of work.

[00:21:26]And in this case, when you consider all the claims and all the different ways this can go, his lawyers are biting off a lot. Now, some of the claims here have a fee shifting provision, meaning that if they win, they'll be allowed to seek on top of whatever a jury would give Brian Flores, Steve Wils, and Ray Horton, they'll be able to put in their their attorney's fees, all the time they spent, all the money they spent, and the NFL would have to pay that, too. The goal is to encourage private citizens to hire lawyers who will act as attorneys general who have been unofficially deputized to go pursue in the interest of society these claims. So we're going to force the company to pay for the lawyers who expose this discrimination.

[00:22:15]That's where it becomes, you know, not a bad business proposition. And hey, if Brian Flores is able to show that he was wrongfully denied an opportunity to be a head coach from 2022 moving forward, his back pay is going to be the difference between what he's made and what he would have made as an NFL head coach.

[00:22:33]So where do we go from here? Next up is the discovery process. And what that means in federal civil litigation, there are different avenues available to the parties to find stuff out about the case. That's what the discovery process is. You're finding stuff out. You're building your case. You're building your defenses. You're finding things out through written questions that get submitted by one side or the other.

[00:23:02]They're called interrogatories. Very fancy word. They're usually useless because you got to be very precise and there'll be 50 objections to each one and it turns into this big mess and you have discovery disputes in court and it's just a waste of everyone's time.

[00:23:15]But the defense lawyers make a shitload of money off of that because they bill by the hour.

[00:23:21]Requests for documents are very common and it's harder to evade them, but sometimes documents don't get found during the search. There were objections there, different privileges, work product doctrine, attorney client privilege, yada yada yada. It's all about obstructing. I worked at multiple firms that defended cases like this before I decided that I was more comfortable representing the individuals. And I know the game plan.

[00:23:49]Obstruct, deny, delay.

[00:23:54]Make it as difficult as possible to get to the truth. Get them to give up.

[00:24:00]Soften them up to take a settlement offer. Make this hell. That's part of the process. Fight them and fight them and fight them some more.

[00:24:10]There's another device known as requests for admissions. I'm just being complete here. Sometimes if you write them very carefully because you're saying to the other side, admit this fact. Admit this fact. Admit this fact. And if you do it just right, you can really streamline your case. Because if you put them in a box with the way you've written it, with the precision you've used in crafting the request for admission and they have to admit it, it just makes it a lot easier and cleaner to try your case because you just introduce your requests and their responses. The big ticket item as it relates to discovery is the deposition.

[00:24:46]That's where you sit down across from a desk with witnesses and you grill them.

[00:24:52]and you're not doing it in the presence of the jury. So, you got a little more freedom. You're exploring. You know how they say a lawyer should never ask a question the lawyer doesn't already know the answer to? I was always confused by that until I went to law school and started practicing law. Through the deposition process, you find out the answers to any questions you ask at trial. So, you will know the answers to the questions you're going to ask at trial. During depositions, you don't always know. And there's all sorts of different ways to approach a deposition.

[00:25:22]you know right away how prepared the witness is. You know right away whether or not the witness is inclined to listen to the preparation that they received.

[00:25:29]Sometimes you'll have a witness who just wants to talk and talk and talk. And in that case, you just sit back and you let them keep talking because eventually they're going to say something that you can clip out and say, "Look at this.

[00:25:40]Look at this right here. This helps prove the case we're trying to make."

[00:25:44]That'll be and who knows there'll be limits placed by the court on how many depositions can be taken. We don't know who is going to be questioned, but you can assume it's going to be owners. It's going to be the commissioner. It's going to get interesting. It's going to get ugly. It's going to get nasty. And through it all, there's going to be more resentment building toward the guy who started all this, Brian Flores, which will make it harder, not easier, for him to become a head coach again. That's the thing. You can't force a team to make him a head coach. All you can do is say you're going to have to pay him the money he would have earned. I can't imagine any NFL team at this point ever voluntarily hiring Brian Flores.

[00:26:28]And then as we go deeper into it and the invoices keep piling up and this owner has gotten a rough time from Brian Flores's lawyer and the commissioner has been grilled by Brian Flores's lawyer. You know, none of these folks want to give up control.

[00:26:42]They don't want to submit to any authority other than their own. When you're brought into a room at a law office and you are a captain of industry, a multi-billionaire, a commissioner of the most popular sport in the country, and you are told to sit there and answer questions. And the more you try to wiggle off the hook, the more pointed and aggressive the lawyer will be, they don't like that.

[00:27:06]They won't be happy about it. And if they get upset while they're testifying at their deposition, that can become a gold mine.

[00:27:14]The truth tends to come out when people are upset.

[00:27:17]There's two occasions during a deposition where the truth is most likely to come out. One, when someone's upset. Well, there's three. Three. One, when someone's upset. Two, when the lawyer chooses to be incredibly charming and disarming, and it ends up feeling like a real conversation, a real interview, and the witness gets too comfortable. And I've had occasions in the past where I've had to like take the witness outside and say, "Look, what are we doing here? This isn't story time. This isn't, you know, we're we're not speed dating here. This is we got to we got to be careful. He's trying to make you comfortable, so you say stuff you shouldn't say." So that's the other way. And the third way is after four o'clock, the witching hour.

[00:28:06]People get tired. And the lawyers who can retain their stamina and keep going once the clock strikes four, man, you can get some good stuff. Because the witnesses don't do it. The witness has never been there before. The lawyers take these depositions all the time. A witness, it's new. You get late in the day, you get hungry, you get tired, you just want this thing to get over with.

[00:28:26]Next thing you know, the truth is going to trickle out of your mouth. So that's what it's all about. Trying to create scenarios for the truth to trickle out of someone's mouth. And and I hate to come off as being that cynical, but I did it for 19 years. cuz I know how it goes. People lie all the time. And the lying under oath doesn't happen when you've been sworn to testify.

[00:28:46]Usually what happens is you locked into a story when the first hit the fan and now you can't back out of it. You've committed to. You're not going to have a deathbed confession in the deposition and say, "Well, you know, I just I said that stuff that I said because I I thought that's what my boss wanted me to say." So, there's a lot of lying that happens under oath and it's unfortunate, but it's how it goes, man. People have to pay their bills. They got to pay their mortgages. They got to feed their families. It's very easy to justify.

[00:29:18]It's very easy to justify looking the other way when it comes to telling the truth or not telling the truth in these situations where success for the plaintiff is premised on getting to truthful information about what the motivations were when someone wasn't hired, fired, or whatever.

[00:29:38]There's one last thing about the discovery process that I think is very relevant and Brian Flores needs to be ready for this.

[00:29:48]And one of the things I always would ask potential clients when they were considering filing a lawsuit against some big company that has resources to just defend themselves aggressively and dig for any dirt they can find. I would always say ask yourself this question.

[00:30:09]What's the worst thing about you that you wouldn't want someone else to know?

[00:30:16]What's the worst thing? You got it. You don't have to tell me. You don't have to tell me, but I just want you to be thinking of it. What's the worst thing?

[00:30:27]If I was always the mentalist, I would guess what the worst thing is. But no, I don't need to know. I'm not trying to figure it out. But you have to assume that whatever that thing is, it's going to come out at some point in this process. Because here's what they do.

[00:30:40]This is part of the playbook.

[00:30:43]They will do everything they can to attack Brian Flores, to attack Steve Wilks, to attack Ray Horton any way they can. Attack their character, attack their background, attack their credentials, attack their competence as coaches, attack their truthfulness.

[00:31:03]That's what the lawyers do. That's in the playbook. Number one, it pays by the hour. Number two, it possibly bears fruit.

[00:31:12]You can get all sorts of stuff that you can use at trial to try to make the plaintiff look like someone who is subverting the interest of justice and lying and cheating and stealing and trying to just go pick the pockets of some multi-billion dollar company. So that part of it could get very awkward and very ugly.

[00:31:33]And until we go through the discovery process, we don't know what's out there.

[00:31:38]We don't know what questions they'll ask. But boy, the Brian Flores deposition transcript, the Steve Wils deposition transcript, and the Ray Horton deposition transcript will be very revealing because that is where it happens. That is where they come after the plaintiffs with gloves off and they do anything they can to establish some snippet, some exchange where they can use that at trial. That can be a foundational piece of the cross-examination of the plaintiff when it's time to testify. Now, at some point after the discovery process ends, the NFL and the various defendants will file what's called a motion for summary judgement.

[00:32:22]You possibly have never heard of that term before. Before I went to law school, I had no idea what it was.

[00:32:28]What it means is, and it's typically filed by the defendant. Sometimes the plaintiff can file it too in a civil case, but usually the defendant goes to the court and says, "All right, we've done the full discovery process.

[00:32:42]We've developed all the evidence.

[00:32:45]Based upon the evidence, we should win.

[00:32:49]Based upon the evidence, there's no need for a jury to come in here and resolve some factual question.

[00:32:58]For example, in a car accident case, who ran the red light? We don't need that.

[00:33:04]We are able to take the things that have been developed during the discovery process, primarily it comes from the testimony of the plainif at their deposition and based upon all these things the plaintiff has said, we should win the case. There's no need for a trial. I've been on both sides of those and I don't think I ever lost one as the plainif. I've won them as the defendant.

[00:33:28]And man, that is great because you avoid the entire jury process. The unpredictability of going in front of six strangers and hoping for the best, it's a great win. The client's always very happy about that. But it it is the final litmus test of the case. And even if you don't prevail, number one, it pays by the hour, so it's good to do it.

[00:33:50]And number two, it forces the plaintiff to put cards on the table, so you begin to understand what the case is about.

[00:33:57]Because at that point, the plaintiff hasn't really had to articulate what the evidence is that supports their case. In responding to a motion for summary judgement, you got to put enough cards on the table to not have the case thrown out. So, you can learn a lot. It's a discovery tool. A motion for summary judgement is the last discovery tool, and it forces the plaintiff to put their legal theory on the table. So, that will happen. And I mention that because hovering over the entire process is the possibility of settlement.

[00:34:26]I was on the score this week, the day after the Supreme Court made their decision, and I was asked whether or not I think there's been settlement talk so far. I I don't think there would have been because there's no reason to at this point. Now, maybe when the NFL had its appeal pending before the Supreme Court, there would have been value in trying to settle the case so that they don't get a decision from the Supreme Court rejecting their appeal. But I I think that from the NFL's perspective, and I try to put myself in the shoes of the lawyer representing the NFL, my position would be let's fight this arbitration issue tooth and nail and then when it's resolved, let's see where we are. If the case is going to go to arbitration, then you know it's got one value. If we don't want to fight the whole thing to the end, if we're in open court, that's when we got to ask ourselves.

[00:35:23]Do we want to avoid having certain facts come to light? Do we want the media to find out snippets of testimony, images of documents, text messages that may show that someone said something they shouldn't have said that helps to prove any of these cases? So, now that we know the case is going to go forward with full-blown discovery, this is a good opportunity for the NFL to try to settle the case. And if they don't do it now, the next best opportunity would be after the NFL loses on its motion for summary judgement if it does, because that's when the NFL's facing a trial. And through the process, there will be a requirement to submit the mediation where a third party comes in and tries to work out a deal. It's not mandatory to do a deal. It is mandatory to participate and participate in good faith. And plenty of cases settle. Most cases settle. Chances are this one will settle. But here's the key. Regardless of whether talks have already happened, whether they happen pre-discovery, whether they happen postmotion for summary judgement, whether they happen on the courthouse steps, first day of trial, during the trial, after the evidence, before a verdict, whenever it happens, Brian Flores is going to have to ask himself, what will it take to get me to give up this case? This case that is bigger than me. I got a tiger by the tail.

[00:36:49]Am I going to pull as hard as I can? Or is there something the tiger can offer me that will get me to let go?

[00:36:58]And it's easy to take a stand on principle when there's no offer on the table.

[00:37:05]Once they start putting money on the table, it changes. Why don't you start talking to your spouse and your family members about what that money means?

[00:37:12]Talk to your accountant, lawyer, investment professionals, and that pile keeps getting larger and larger and larger.

[00:37:23]It's one thing to say, "I'm never settling the case." It's another thing to say no to an offer that ends it all right now. Well, you can take it now or we can do this for another five years.

[00:37:34]It's already been four years and multiple months and we're just moving out of square one. How much longer does Brian Flores have to wait for his day in court? That's part of it. And there's no there's no formula. There's no button you can press to tell you what to do.

[00:37:53]But there's a number that Brian Flores likely won't say no to.

[00:38:00]That's one of the dynamics here. Now, it may take more.

[00:38:05]his posture may get him some extra money, get him some extra compensation, some extra justice from the league if they think he's going to say no to what maybe someone else would say yes to. You know, Jim Troder had the tiger by the tail after he was let go by NFL Network because he had the audacity to ask the commissioner about diversity in the NFL Network newsroom at consecutive Super Bowl press conferences. How dare you do that?

[00:38:30]He ended up settling. And my guess is he wasn't going to settle and then they made him an offer he couldn't refuse.

[00:38:38]The good kind, not the we'll kill you if you don't take it kind. Um, so that's the dynamic here. What will it take to get Brian Flores to settle? And once the class is certified and it becomes an official class action, it also becomes harder to settle because you got to settle the class too and that's got to be approved and that's a cumbersome process. I've been involved in those.

[00:39:07]You send out notice to all of the class members. They have an opportunity to opt out.

[00:39:13]You can't just say, "I'm cashing out.

[00:39:14]I'm done. See you later." Oh, they're offering me that much money. All right.

[00:39:17]I'm abandoning this obligation. I have assumed on behalf of all people similarly situated to me who have undergone the same indignities I have.

[00:39:25]The mere fact that Brian Flor's pursuit as a class action would tell you he's not going to be inclined to give this up cheaply.

[00:39:34]So if we don't settle, if the motion for summary judgement is denied, the case is eventually going to go to trial and it'll be an open court. Now because it's in federal court, there won't be TV cameras. I think the general rule is no TV cameras in federal court nationwide with no discretion, no ability to wave it. And you build the case, you present the case, and it's going to be cumbersome. And look, the NFL is going to want to hold Flores, Wils, and Horton together.

[00:40:03]If you're the lawyer, you want to have three separate bites at the apple. You want to have three different trials. But man, it becomes a lot more cumbersome if you're trying the same case three times.

[00:40:10]It's going to make sense to do all three guys in one case. You can have a lot of witnesses, a lot of documents.

[00:40:17]I don't know, it's probably a three or four-week trial and then you get a verdict and there'll be appeals after that. And this process could last at least another four years.

[00:40:28]It could last another seven years if this thing goes all the way through to a trial and appeals all the way up to the top of the federal government, which is back to the US Supreme Court.

[00:40:40]So, I think that's it in a nutshell. I think I've gotten everything. One last point that I didn't make as it relates to settlement, and this is another reason why this is an occasion to settle the case.

[00:40:51]Remember the St. Louis litigation, 790 million paid by the NFL and the Rams.

[00:40:56]And I think the Rams ended up paying the bulk of that 790 million after the Rams lied their way out of St. Louis. And I fear no defamation claim. It's documented. They lied about why they purchased, why Stan Kroni bought the land in Englewood. Kevin Demof lied through his teeth about this notion that, oh, that's not for a football stadium until they built the football stadium and left. That settlement happened after the NFL tried to force the case to arbitration and lost at the Supreme Court level with a decision not to take up the appeal. Now, I think there was more discovery and it was inching toward trial, but once you lose that arbitration question and you know you're going to have an open court trial, it becomes prudent to ask yourself, should we just cash out of this thing?

[00:41:52]And as part of it, this gets very delicate from a negotiating standpoint. You know, one outcome is he gets a head coaching job as part of this negotiation, but that's that's awkward to do.

[00:42:05]Another possibility is they buy him out and he leaves the Vikings and never coaches again. That that they are giving him a giant pile of money and in exchange for it, they are done with Brian Flores.

[00:42:21]They are out of the Brian Flores business. They didn't do that with Colin Kaepernick when they settled his collusion case. They didn't buy out his employment rights. And that's not uncommon. You agree that you will never apply for, never seek, never accept, never solicit employment with this company. You will never darken the doorstep again. That's how the lawyers referred to that clause. We're never going to see you again. It's over.

[00:42:47]Because in theory, you know what you could do? You take a company to trial, you settle it, and let's say you had a gender discrimination claim. You settle it, and then you show up the next day and apply for a job.

[00:43:02]Well, that's not good. Cuz what are you going to say? Yeah, come on back in. Or are we going to say, "Nah, we don't want this person." Oh, get sued again. I always thought Kaepernick may sue the NFL again because he got his money. They continue to collude. And now you could argue it's not just because of him exercising his right to not stand for the anthem. It's also in retaliation for winning through a settlement his collusion arbitration against the NFL.

[00:43:30]So So my point is this. It's at least on the radar screen that if and when the NFL makes Brian Flores a massive financial offer, one of the terms will be you're done.

[00:43:46]you're not working for any of our teams ever again. I don't know that that has a high likelihood, but if I'm the league and I've already spent four years and multiple months of legal fees just getting to this point, I'm going to spend a hell of a lot more and I may be looking at significant liability and I'm going to write this guy a check to get him to settle these these claims and he's already shown that he's motivated to sue anyone and everyone. I don't want to walk into another lawsuit from this guy. I mean, think about it. You settle the case, he's still coaching in the NFL, still coaching for the Vikings, still running a great defense every year and doesn't get hired to be a head coach. Boom. Bought another lawsuit. So, I hadn't thought of that before.

[00:44:33]And it only took me about an hour to get there.

[00:44:36]But now, I don't know how quickly any of this is going to move.

[00:44:43]But you at least have to take seriously the possibility, slim as it may be, that the NFL will make Brian Flores at some point, the kind of significant settlement offer that will cause them to request that Flores end his employment affiliation with any NFL team and never seek employment in the NFL again.

[00:45:04]Uh they can request it and he can accept it and it all depends upon how much money they're willing to offer. But this is a significant case and we've gotten numb to it because it's been hanging around for so long and nothing's really happened and what's this all about. So I hope that the last hour or so has helped you understand what the case is about, how we got here, where we go from here.

[00:45:28]I'll do this again as needed when there are major developments in the case and I I hope to get access to some of the public materials that are going to be available so I can I can decipher it and explain what it means what's going on.

[00:45:41]And you know, sometimes when I get involved in cases like this, I miss practicing law, but then I think about all the they're going to have to do to get this case ready. And I'm I'm I'm appreciative that something that seems to have been a problem for the NFL for years is finally being addressed. However it shakes out, it needed to be addressed at some point.

[00:46:02]I wouldn't want to be doing it. It's it's a lot. It's a big case and it's going to take a lot of effort and there's no guarantee that it's going to work out in Brian Flores's favor at the end of the day. It could be a lot of time and money spent on nothing when it's all said and done. Okay, that's it.

[00:46:18]Enjoy your weekend. We'll be back on Monday with another edition of PFT Live and we will be updating prof.com all weekend long. Have a great weekend.

[00:46:28]We'll see you soon. Hi, it's Mike Florio. Thanks for watching PFT on YouTube.