Flag Thrown Again: Supreme Court Keeps Brian Flores’ Discrimination Claims in Open Court

By Alice K. Jump and Lucia Mead

Nearly a year after the Second Circuit issued its significant ruling in Flores v. N.Y. Football Giants, the litigation involving former NFL coach Brian Flores and the league’s arbitration procedures has taken another turn.  On May 26, 2026, the United States Supreme Court declined to hear the NFL’s appeal seeking to compel arbitration of Flores’ racial discrimination claims, effectively leaving the Second Circuit’s decision intact and allowing the case to proceed in federal court.[1]

As discussed in our article last year (here), the Second Circuit held in August 2025 that the NFL Constitution’s arbitration provision, which granted Commissioner Roger Goodell broad authority to oversee disputes involving the league and its member clubs, was unenforceable because it failed to provide a sufficiently neutral arbitral forum – i.e., a forum lacking an independent, impartial decision-maker separate from the Commissioner’s control.  The court characterized the arrangement as “arbitration in name only,” emphasizing that the Commissioner’s unilateral substantive and procedural authority undermined the fairness principles required under the Federal Arbitration Act (“FAA”).[2]

The NFL subsequently petitioned the Supreme Court for certiorari – a formal request asking the U.S. Supreme Court to review the case.  The NFL argued that the Second Circuit had improperly expanded judicial scrutiny of arbitration agreements and threatened the enforceability of arbitration clauses commonly used in professional sports.  The petition framed the issue broadly, asking whether an arbitration agreement can be deemed unenforceable merely because it designates a league commissioner as arbitrator, and therefore allows that commissioner to establish procedural rules.[3]

The Supreme Court, however, declined to take up the case.  Justice Brett Kavanaugh reportedly would have granted review, but no other justices joined in doing so.  Although the Court’s denial of certiorari does not reflect agreement with the lower court’s reasoning, the practical consequence is significant: Flores’ discrimination claims against the NFL, the New York Giants, Denver Broncos, and Houston Texans will proceed publicly in federal court rather than through the NFL’s internal arbitration process. For plaintiffs in employment discrimination cases, the opportunity to present their claims to a jury is often viewed as a significant strategic advantage, making the court’s ruling particularly consequential for Flores and his co-plaintiffs.

Since the Second Circuit’s ruling, the procedural posture has also shifted, altering the issues currently before the court.  In February 2026, Judge Valerie Caproni revisited claims previously directed to arbitration and ultimately denied arbitration in full, lifting the stay (pause) that had applied to certain claims.  As a result, all remaining claims brought by Flores and co-plaintiffs Steve Wilks and Ray Horton are now set to proceed in federal court.[4]

The broader implications of the case extend beyond the NFL itself.  Arbitration agreements remain a favored dispute resolution mechanism for employers because they can reduce costs, expedite dispute resolution, and preserve confidentiality.  This decision in Flores demonstrates that courts remain willing to invalidate arbitration provisions that appear fundamentally one-sided or fail to provide a neutral adjudicative process.

For the NFL, the Supreme Court’s refusal to intervene means the league now faces the prospect of extensive discovery and public litigation concerning allegations of discriminatory hiring practices and the implementation of the Rooney Rule.  Brian Flores and the additional plaintiffs continue to allege systemic racial discrimination in coaching and executive hiring decisions across the league.  The NFL, for its part, continues to deny those allegations and has stated that it is prepared to defend itself in court.

[1] Supreme Court Order List at 1, N.Y. Football Giants, Inc. v. Flores, No. 25-790 (U.S. May 26, 2026), supremecourt.gov/orders/courtorders/052626zor_6j36.pdf

[2] Flores v. N.Y. Football Giants, Inc., 146 F.4th 785, 801–02 (2d Cir. Aug. 14, 2025), 081425-2nd-Cir-Flores-v-New-York-Football-Giants-Inc-et-al-decision.pdf

[3] Petition for Writ of Certiorari at i, N.Y. Football Giants, Inc. v. Flores, No. 25-790 (U.S. filed Jan. 2, 2026), https://www.supremecourt.gov/DocketPDF/25/25-790/390672/20260102130654303_25-xxx_petition.pdf

[4] Flores v. N.Y. Football Giants, Inc., No. 22-cv-871, slip op. at 6–8 (S.D.N.Y. Feb. 2026), https://www.sdnyblog.com/files/2026/02/22-cv-00871-Flores-v.-NFL-Op.pdf

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Alice K. Jump who counsels clients on litigation, alternative dispute resolution and business counseling, with particular emphasis on representing clients in the financial services and real estate industries as well as educational and non-profit institutions. Ms. Jump is admitted to practice law in New York and before the United States District Courts for the Southern and Eastern Districts of New York and the United States Court of Appeals for the Second Circuit.