The Supreme Court just denied cert in Flores — is your arbitration clause still enforceable?

The sports industry is experiencing unprecedented growth and investment. This trend is driven by changing regulations relating to ownership in professional leagues and compensation mechanisms for college athletes, as well as increased demand for live, in-person events after the pandemic, among other reasons. With increasing investments and transactions, it is vital for stakeholders to have access to effective dispute resolution mechanisms to resolve potential conflicts.

Professional sports leagues often choose to provide for arbitration to resolve disputes. When a sports league embeds an arbitration clause in its governing documents, it typically does so for straightforward reasons: to keep disputes out of court, to ensure that outcomes are decided by decision-makers who are familiar with the industry's rules and commercial realities, and to preserve the confidentiality that litigation cannot guarantee. The Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., reinforces that choice, establishing a liberal federal policy in favor of arbitration and limiting the circumstances under which courts may intervene when parties have consented to refer their disputes to arbitration.¹

But the FAA's protections are not unconditional. They apply to arbitration — and not every mechanism that a contract labels "arbitration" qualifies. A clause that concentrates unbounded adjudicative authority in the principal executive of one of the disputing parties does not, in the Second Circuit's view, constitute arbitration at all.² It is, in the court's own words, "arbitration in name only."³ And a clause that provides for arbitration in name only receives none of the FAA's protections: it cannot be used to compel a party out of court.⁴

That is the core holding of Flores v. N.Y. Football Giants, 150 F.4th 172 (2d Cir. 2025) ("Flores"). The court held, on two independent grounds,⁵ that the NFL Constitution and Bylaws' ("NFL Constitution") arbitration provision — which grants the NFL Commissioner "full, complete, and final jurisdiction and authority to arbitrate" disputes involving employees and member clubs⁶ — falls outside the FAA's protection because it vests "unilateral substantive and procedural discretion" in a party-affiliated executive⁷ and thereby "provides for arbitration in name only and accordingly lacks the protection of the FAA."⁸ Separately, the court held that the same provision is unenforceable under the effective vindication doctrine⁹ — a principle rooted in the Supreme Court's decision in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985),¹⁰ which holds that an arbitration agreement is unenforceable if it effectively forecloses a party from vindicating federal statutory rights in the arbitral forum¹¹ — because it fails to guarantee that a party can "vindicate [his] statutory cause of action in [an] arbitral forum."¹²

The NFL is not alone in this position. Major League Baseball ("MLB")¹³ and the National Basketball Association ("NBA"),¹⁴ have used similar commissioner-controlled dispute resolution mechanisms. For all of them, Flores poses the same question: does your arbitration clause actually constitute arbitration under the FAA? For sports leagues and similarly structured organizations, the answer to that question determines whether dispute resolution provisions embedded in governance documents will hold up at the moment they are most needed — or collapse entirely.

The urgency of that question has intensified. As discussed in detail below, the Second Circuit held in Flores that the NFL Constitution's arbitration provision falls outside the FAA's protection. The defendants petitioned the U.S. Supreme Court for certiorari; on May 26, 2026, the Court denied review. That denial makes the present moment a particularly critical one for sports leagues and similarly structured organizations to reassess their dispute resolution frameworks.

The answer, under Flores, turns on two threshold requirements: whether the clause provides (i) an independent arbitral forum and bilateral dispute resolution process, and (ii) pre-agreed procedure that neither party can modify unilaterally. This article explains how Flores established that framework, why it matters beyond the NFL, and what organizations should do now.

The practical steps are straightforward: (i) designate an independent administering institution rather than a party-affiliated officer; (ii) fix procedural rules in the arbitration agreement itself and ensure they cannot be overridden unilaterally; (iii) establish a transparent and balanced arbitrator selection process with defined challenge rights; and, (iv) audit incorporated governance documents alongside standard-form contracts for consistency — because, as explained below, a supplemental procedural rule that is contractually subordinate to a governing document retaining unilateral override authority does not cure the structural defect. Organizations that address these four points and consider including a severability clause to preserve the arbitration obligation if a specific element is later found unenforceable, will be significantly better positioned than those that do not.

By way of comparison, international sports federations such as the world soccer organization FIFA also provide for arbitration of disputes. In the case of FIFA, this is first by reference to an in-house type of arbitration by the FIFA Football Tribunal followed by a possible appeal to the Court of Arbitration for Sport (CAS). While the former would not meet all of the requirements for being considered arbitration, such as independence, the CAS does and has been confirmed as constituting proper arbitration to which the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the "New York Convention") applies¹⁵. While recently concerns have been raised about the mandatory character of arbitration before CAS, the discussion revolves around the extent of review authority of domestic tribunals when fundamental rights and matters of public order are at issue, and not about its characterization as an arbitration tribunal. It may be interesting for American leagues to look at the way CAS is organized and the success it has, resolving annually more than 900 sports related disputes.

I. Background: the Flores litigation

Flores began as a putative class action filed by NFL coaches Brian Flores, Steve Wilks, and Ray Horton against the National Football League and several of its member clubs — the Miami Dolphins, Arizona Cardinals, Tennessee Titans, Denver Broncos, New York Giants, and Houston Texans — alleging racially discriminatory hiring practices in violation of 42 U.S.C. § 1981 and related state and local statutes.¹⁶

The defendants moved to compel arbitration invoking clauses in the NFL Constitution incorporated by reference into the coaches' individual employment contracts. The Southern District of New York partially granted and partially denied the motion. In particular, the district court compelled arbitration of claims governed by club-specific arbitration provisions in the individual coaching contracts with the Dolphins, Cardinals, and Titans,¹⁷ while denying arbitration as to Flores's claims against the Denver Broncos, New York Giants, Houston Texans, and the NFL, each of whose arbitration obligations traced directly to the NFL Constitution's general arbitration provision.¹⁸ Only those four defendants appealed the court's denial to compel arbitration.

II. The second circuit's holding

On appeal, the court sided against the Denver Broncos, New York Giants, Houston Texans, and the NFL, finding that none of them could force the matter into arbitration.¹⁹ The court's analysis turned on a structural defect that went to the heart of what "arbitration" means under federal law.²⁰ The NFL Constitution grants the NFL Commissioner "full, complete, and final jurisdiction and authority to arbitrate" disputes between relevant parties, including employees and member clubs.²¹ In the court's view, the provision was "arbitration in name only: it "contractually provides for no independent arbitral forum, no bilateral dispute resolution, and no procedure," and instead "offend[s] basic presumptions of our arbitration jurisprudence by submitting Flores's statutory claims to the unilateral substantive and procedural discretion of the 'principal executive officer' of one of his adverse parties, the NFL".²² In other words, the NFL was acting as judge and party of the same dispute.

As previously mentioned, the holding affirming the district court's denial of the motion to compel arbitration rests on two independent grounds. First, the NFL Constitution's arbitration provision falls outside the protection of the FAA because it "contractually provides for no independent arbitral forum, no bilateral dispute resolution, and no procedure."²³ The court identified two core structural defects: first, the provision provides neither an independent arbitral forum nor a bilateral dispute resolution process; and second, it provides no fixed procedure, leaving both substance and procedure to the unilateral discretion of the Commissioner.²⁴

Second, and independently, the NFL Constitution's arbitration provision is unenforceable under the effective vindication doctrine.²⁵ The court held that Flores's agreement was unenforceable because it would "require Flores to submit his statutory claims to the unilateral discretion of the executive of one of his adverse parties, without an independent arbitral forum under contract and without a process for bilateral dispute resolution" — meaning Flores could not "vindicate [his] statutory cause of action in [an] arbitral forum."²⁶ The court described these two holdings as "independent reason[s]" to affirm, though "closely linked" in that both "rely largely on the fact that the arbitral forum guaranteed by the NFL Constitution is inherently biased."²⁷

Flores's reach is not limited to employment disputes. Because the clause at issue originated in the NFL Constitution's general arbitration provision and was incorporated by reference into individual coaching contracts, the ruling has potential application to the full range of disputes that refer back to the NFL Constitution — employment, commercial, and governance — governed by similar league documents.

III. Prior case law: how Flores changed the analysis

Courts had previously upheld commissioner-controlled arbitration provisions in professional sports without examining whether their structural features satisfied the FAA's threshold definition of "arbitration."²⁸ In New York Knicks, LLC v. Maple Leaf Sports & Entertainment Ltd., the Southern District of New York enforced an NBA commissioner-controlled arbitration clause without examining whether the structural features of that clause satisfied the FAA's threshold definition of "arbitration."²⁹ Similarly, earlier decisions involving NFL disputes — including Henry v. New Orleans Louisiana Saints L.L.C. and Alexander v. Minnesota Vikings Football Club LLC — treated commissioner appointment authority as consistent with valid arbitration, albeit without the benefit of a federal court's structural FAA analysis, focusing on the existence of an arbitration agreement rather than its structural content.³⁰

Flores reframed the inquiry entirely. The Second Circuit held that "not every self-declared 'arbitration agreement' . . . is embraced by the FAA's mandate," and that the FAA's mandate "is limited to the enforcement of actual 'arbitration agreements.'" Before asking whether the FAA required enforcement, the court asked whether the provision qualified as one.³¹ By posing the question at the structural threshold, the court held that the strong federal presumption favoring arbitration did not attach, because the FAA's mandate is limited to actual "arbitration agreements" and the provision at issue did not qualify.³² On that threshold question, the court answered no, holding that a provision giving one party's executive "full, complete, and final jurisdiction and authority to arbitrate" fails to provide the structural predicates the FAA presupposes — namely, an independent arbitral forum for bilateral dispute resolution, and a procedure fixed by contract rather than left to the unilateral discretion of one party's executive.³³

The practical implication is significant: prior decisions upholding commissioner-controlled provisions may no longer be controlling authority for the proposition that such provisions receive FAA protection — at least within the Second Circuit — because those decisions did not examine the structural threshold question that Flores now holds must be resolved before the FAA's mandate is triggered.

IV. The SDNY's February 2026 ruling expands the holding's scope

Following the Second Circuit's decision, the practical scope of Flores expanded significantly.³⁴ Flores, Wilks, and Horton moved the district court to reconsider its earlier orders compelling arbitration of their claims against the Dolphins, Cardinals, and Titans³⁵ — claims that had been stayed pending arbitration under club-specific provisions in the individual coaching contracts.³⁶ Those club-specific provisions differed from the NFL Constitution's general provision in that some of them incorporated the NFL's Dispute Resolution Procedural Guidelines ("DRPG"), a supplemental set of procedural rules adopted by the League and referenced in certain coaching contracts.³⁷

On February 13, 2026, the district court held that the club-specific arbitration agreements, even where they incorporated the DRPG, were no less fatally defective than the NFL Constitution's general provision.³⁸ The court explained that "[a]dding some procedure via the DRPG does not fix the forum's lack of independence nor make the process bilateral," and that "the NFL Constitution still provides the Commissioner with the authority unilaterally to dictate arbitral procedure."³⁹ The DRPG, the court found — adopting the characterization advanced by Plaintiffs — is "'just an outgrowth' of the NFL Constitution" that "appears to be only as binding as is beneficial to the NFL."⁴⁰ As a result, the district court denied all remaining motions to compel arbitration.⁴¹

A petition for certiorari before the U.S. Supreme Court was filed on behalf of all four appellants — New York Football Giants, Inc., Houston NFL Holdings, L.P., Denver Broncos Team, LLC, and the National Football League (the "Petitioners").⁴² On May 26, 2026, the U.S. Supreme Court denied certiorari. As a result, the Second Circuit's decision in Flores stands as binding precedent, and its implications extend well beyond the NFL.

V. Framework for proactive review

Leagues, associations, and similarly structured organizations should take concrete steps now to ensure their intended dispute resolution forum is protected. The following framework is organized around the structural defects identified by the Flores court.

1. Audit existing arbitration clauses

It is important to review all arbitration provisions across governance documents, standard-form contracts, and incorporated rules. The Flores court identified structural defects, each of which provides a discrete audit criterion:

• Independent arbitral forum. Ask: who controls the adjudication, and is that person structurally independent of the disputing parties? The Flores court found fatal the fact that the NFL Commissioner held "full, complete, and final jurisdiction and authority to arbitrate" disputes — placing unilateral substantive and procedural authority in the hands of a party-affiliated executive.⁴³ The practical question for any league auditing its documents is whether a party-affiliated officer retains authority over any stage of the process, including the authority to appoint an additional decision-maker post hoc and outside any agreed framework, as the Flores court specifically flagged.⁴⁴ If the answer is yes, the arrangement faces the same defect identified in the NFL Constitution.
• Bilateral process. Ask: can both parties participate in the process on equal terms? The Flores court was clear that an arrangement in which one party's executive controls the initiation, conduct, and outcome of the dispute does not constitute bilateral dispute resolution. For leagues reviewing their own documents, the question is whether any party-affiliated officer has the ability to control the process in ways that are unavailable to the other side — including the ability to select, modify, or override procedural rules unilaterally.⁴⁵
• Pre-agreed procedure. Ask: are the procedural rules fixed before a dispute arises, and can they be changed unilaterally? The Flores court held that the NFL Constitution "fails to provide 'the procedure to be used in resolving the dispute'" and that the Commissioner's unilateral authority over procedure was independently fatal.⁴⁶ Critically — and this is the lesson of the SDNY's February 2026 ruling — this defect was not cured by the existence of supplemental procedural rules.⁴⁷ If your documents contain a similar override mechanism, a supplemental procedural rule alone will not be sufficient.

Finally, it is important to review whether clauses in subordinate agreements — employment contracts, licensing agreements — are incorporated by reference from governing documents rather than drafted independently. The Flores holding reached all claims governed by the NFL Constitution's arbitration provision, regardless of whether the individual contract also contained a separate club-specific clause.⁴⁸

2. Draw on best practices from other industries

Several industries have developed neutral arbitration frameworks that provide instructive models for leagues undertaking this review:

• Commercial Arbitration: Institutions such as the American Arbitration Association ("AAA") and its international division, the International Centre for Dispute Resolution ("ICDR"); the International Chamber of Commerce ("ICC"); the Judicial Arbitration and Mediation Services ("JAMS"); and International Institute for Conflict Prevention and Resolution ("CPR"), maintain pre-fixed procedural rules that neither party can modify unilaterally, and vest appointment and challenge authority in an independent institutional body whose decisions do not require party consent. For instance, in the case of the AAA, arbitrators are selected from a National Roster through a bilateral list process in which both parties rank and strike candidates.⁴⁹ While the ICC and ICDR are primarily international forums, their structural model — institutional independence, bilateral process, pre-agreed procedure — directly tracks the requirements the Flores court identified as necessary for FAA protection, and provides a useful benchmark for any organization redesigning its dispute resolution framework. In any event, their international nature may be helpful given the increased diversity of nationalities of stakeholders in U.S. sports.
• Labor and employment: Institutions such as the Judicial Arbitration & Mediation Services ("JAMS") Arbitration Rules, and AAA Employment Arbitration Rules, are private dispute resolution providers whose rules include specific procedural safeguards — including mandatory exchange of all non-privileged relevant documents within twenty-one days of commencement, deposition rights, and written reasoned awards — that provide structural protections for both parties regardless of their relative resources or familiarity with the process. The AAA Employment Arbitration Rules similarly provide pre-agreed, bilateral procedures that cannot be modified by one party alone: any modification requires the written agreement of all parties and, following appointment of the arbitrator, the arbitrator's approval.⁵⁰
• Court of Arbitration for Sport (CAS): CAS has been recognized as an independent arbitration institution handling sports related disputes, including employment and contract disputes. This was not always the case as CAS was originally established as more akin to an arbitration mechanism by and for the sports federations.⁵¹ Following further amendments, CAS was recognized as a proper, independent arbitration mechanism by the European Court of Human Rights and the European Court of Justice and the New York Convention applies to its awards.⁵² However, questions related to the mandatory or "forced" nature of CAS arbitration due to the fact that sports federations and clubs impose CAS arbitration in all of their contracts has raised questions about the extent to which domestic courts can still review decisions of CAS when these are challenged for reasons related to public policy such as EU competition law for example.⁵³ According to the European Court of Human Rights, the existence of a specialized court, i.e., CAS, in sports was desirable to swiftly and inexpensively settle sports-specific disputes with the required expertise. However, the Court also considered that the compulsory nature of sports arbitration has certain consequences for the review of CAS awards.⁵⁴

The common thread across these frameworks is institutional neutrality: the entity that controls the process is structurally separated from the entities that are parties to the dispute.

VI. The certiorari denial and its implications

The Petitioners' petition for certiorari was closely watched. On May 26, 2026, the U.S. Supreme Court denied certiorari. As a result, Flores is now entrenched as binding precedent in the Second Circuit — home to the NFL, the NBA, and a significant number of professional sports entities — and stands as persuasive authority elsewhere. Absent Supreme Court review, the question of whether commissioner-controlled arbitration provisions qualify as "arbitration" under the FAA remains open outside the Second Circuit, and lower courts in other jurisdictions that previously upheld such provisions without conducting the structural threshold analysis required by Flores may reach different conclusions when confronted with the issue.

With the Supreme Court's denial of certiorari, the need for organizations to review their arbitration architecture is no longer prospective — it is immediate. Organizations operating within the Second Circuit, or whose disputes may be subject to its jurisdiction, should act now.

VII. Conclusion

Flores is a reminder that dispute resolution provisions embedded in governance documents are not self-executing legal formalities — they are substantive commitments subject to judicial scrutiny. As the Second Circuit held, a provision that vests "unilateral substantive and procedural discretion"⁵⁵ in the principal executive of one of the adverse parties provides for arbitration that is, in the court's words, "arbitration in name only"⁵⁶ — it fails to constitute arbitration at all, and it fails at precisely the moment it is most needed.

The SDNY's February 2026 ruling confirmed that the Flores holding reaches any dispute resolution framework in which the structural defects identified by the Second Circuit — no independent arbitral forum, no bilateral dispute resolution, and no procedure — persist, even where a supplemental procedural rule has been added to the mix.

Proactive review, redrafting with institutional neutrality in mind, and drawing on best practices from other industries are the concrete steps organizations can take today to ensure their dispute resolution frameworks are both legally sound and practically effective.

Paula Ibargüen Ponce (White & Case, International Arbitration Fellow, Miami) contributed to the drafting of this publication.

_{1 9 U.S.C. § 2; Flores v. New York Football Giants, Inc, 150 F.4th 172, 180 (2d Cir. 2025), cert. denied sub nom. NY Football Giants, Inc. v. Flores, No. 25-790, 2026 WL 1463191 (U.S. May 26, 2026) (the FAA establishes "both a liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract," and Section 2 of the FAA provides that agreements to arbitrate are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract") (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)).
2 Flores, at 182 ("Flores's agreement under the NFL Constitution to submit his statutory claims against the Broncos and the NFL to the unilateral substantive and procedural discretion of the NFL Commissioner — the principal executive of one of Flores's adverse parties — provides for arbitration in name only and accordingly lacks the protection of the FAA"; the provision "contractually provides for no independent arbitral forum, no bilateral dispute resolution, and no procedure" and "offends basic presumptions of our arbitration jurisprudence").
3 Id., at 183 ("an arbitration agreement that prevents parties from submitting their disputes to an independent arbitral forum, and that instead compels one party to submit its disputes to the substantive and procedural authority of the principal executive officer of one of their adverse parties, is an agreement for arbitration in name only").
4 Id. at 178, 185 ("the NFL Constitution's arbitration provision enjoys no special deference under the FAA," constituting "an independent reason to affirm the District Court's order denying the motion to compel arbitration of Flores's claims"); id. at 187 ("[t]hat same unprotected and unenforceable agreement also cannot be used to compel Flores to arbitrate his claims against the Giants and Texans or related claims against the NFL").
5 Flores, at 187 (setting out conclusions (1a) and (1b) as two distinct holdings); id. at 185 n.65 (describing the effective vindication doctrine as "an independent reason to affirm the District Court's order denying the motion to compel arbitration of Flores's claims").
6 Flores, at 178 (quoting NFL Constitution § 8.3, which grants the Commissioner "full, complete, and final jurisdiction and authority to arbitrate several types of disputes, including [a]ny dispute between any . . . coach . . . and any member club or clubs").
7 Flores, at 176 ("Flores's agreement under the NFL Constitution to submit his statutory claims against the Broncos and the NFL to the unilateral substantive and procedural discretion of the NFL Commissioner — the principal executive of one of Flores's adverse parties").
8 Id. ("provides for arbitration in name only and accordingly lacks the protection of the FAA"); id. at 183 ("an arbitration agreement that prevents parties from submitting their disputes to an independent arbitral forum, and that instead compels one party to submit its disputes to the substantive and procedural authority of the principal executive officer of one of their adverse parties, is an agreement for arbitration in name only").
9 Flores, at 185 ("the agreement is plainly unenforceable under the most basic principles of the effective vindication doctrine"); id. at 186 ("Because Flores has been denied arbitration in any meaningful sense of the word," "we conclude that this agreement is unenforceable") (citing Hooters of Am., Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999)).
10 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985), cited in Flores, 150 F.4th at 181 n.39, 186 n.70.
11 Flores, at 186 (quoting Mitsubishi Motors, 473 U.S. at 637, for the rule that a statutory claim is enforceably arbitrable "so long as a prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, so that the statute will continue to serve both its remedial and deterrent function").
12 Flores, at 182 (quoting Mitsubishi Motors, 473 U.S. at 637) (brackets in original, substituting "his" for "its" and "an" for "the").
13 MLB Const. Art. VI, § 1 ("All disputes and controversies related in any way to professional baseball between Clubs or between a Club(s) and any Major League Baseball entity(ies) . . . shall be submitted to the Commissioner, as arbitrator, who, after hearing, shall have the sole and exclusive right to decide such disputes and controversies"); id. § 2 (Clubs "severally agree to be finally and unappealably bound by actions of the Commissioner" and "waive such right of recourse to the courts as would otherwise have existed in their favor"); id. § 3 ("all contracts between Major League Clubs and their officers and employees, shall contain a clause by which the parties agree to submit themselves to the jurisdiction of the Commissioner, and to accept the Commissioner's decisions rendered in accordance with this Constitution").
14 NBA Const, Art. 24(d) (the Commissioner "shall have exclusive, full, complete, and final jurisdiction of any dispute involving two (2) or more Members of the Association"); NBA Const., Art. 24(m) ("all actions duly taken by the Commissioner pursuant to this Article 24 ... shall be final, binding and conclusive, as an award in arbitration, and enforceable in a court of competent jurisdiction in accordance with the laws of the State of New York").
15 The seat of CAS is in Lausanne, Switzerland but CAS also has a decentralized office in Sydney and alternative hearing centers in Shanghai, Cairo, Abu Dhabi, Kuala Lumpur and, most recently Lima for Latin American disputes.
16 Flores, at 176–77 (Flores sued the NFL, Dolphins, Broncos, Giants, and Texans; Wilks sued the NFL and Cardinals; Horton sued the NFL and Titans).
17 Flores, at 178.
18 Id. (quoting NFL Const. art. VIII, § 8.3). See also Flores at 178 (the SDNY's denial of the Giants/Texans claims rested on the distinct threshold ground that the Flores-Steelers agreement was unsigned by the NFL Commissioner, though the Second Circuit affirmed on federal-law grounds applicable to all four appellants).
19 Flores, at 175, 187.
20 Flores, at 181 ("not every self-declared 'arbitration agreement' or contractual provision within such an agreement is embraced by the FAA's mandate"; the FAA's mandate is "limited to the enforcement of actual 'arbitration agreements'" meaning "a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute") (quoting Viking River Cruises, Inc. v. Moriana, 596 U.S. 639, 653 (2022)).
21 Flores, at 176-78 (background), 182 (analysis) (quoting NFL Const. art. VIII, § 8.3).
22 Flores, at 183.
23 Flores, at 182-83 ("the NFL Constitution's arbitration provision fails to bear even a passing resemblance to 'traditional arbitral practice'" and "[i]t contractually provides for no independent arbitral forum, no bilateral dispute resolution, and no procedure") (quoting Viking River Cruises, Inc. v. Moriana, 596 U.S. 639, 658 (2022)).
24 Flores, at 183-85 ("First, the NFL Constitution's arbitration provision fails to provide an independent arbitral forum for bilateral dispute resolution"; "Second, the NFL arbitration provision fails to provide 'the procedure to be used in resolving the dispute'") (quoting Viking River, 596 U.S. at 653).
25 Flores, at 182, 18517–18, 25.
26 Flores, at 186-87 ("enforcing this agreement would require Flores to submit his statutory claims to the unilateral discretion of the executive of one of his adverse parties, without an independent arbitral forum under contract and without a process for bilateral dispute resolution"; "Because Flores 'has been denied arbitration in any meaningful sense of the word,' we conclude that this agreement is unenforceable") (quoting Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 941 (4th Cir. 1999)).
27 Flores, at 185 n.65 ("Although the effective vindication doctrine is an independent reason to affirm the District Court's order denying the motion to compel arbitration of Flores's claims, it is closely linked with our conclusion that the FAA does not protect the NFL Constitution's arbitration agreement. Both conclusions rely largely on the fact that the arbitral forum guaranteed by the NFL Constitution is inherently biased.").
28 See N.Y. Knicks, LLC v. Maple Leaf Sports & Entm't Ltd., No. 23-CV-7394 (JGLC), 2024 WL 3237563 (S.D.N.Y. June 28, 2024); Henry v. New Orleans Louisiana Saints, L.L.C., No. 15-5971, 2016 WL 2901775 (E.D. La. May 18, 2016); Alexander v. Minn. Vikings Football Club, L.L.C., 649 N.W.2d 464 (Minn. Ct. App. 2002).
29 N.Y. Knicks, 2024 WL 3237563, at *1-4 (NBA Const., Art. 24(d) and (m), granting Commissioner "exclusive, full, complete, and final jurisdiction of any dispute involving two (2) or more Members of the Association," with decisions characterized as "final, binding and conclusive, as an award in arbitration"); id. at *4 (court "satisfied that the relevant provisions of the NBA Constitution represent a valid agreement to arbitrate" without separately examining whether the commissioner-controlled structure satisfied any threshold definitional requirement of "arbitration" under the FAA).
30 Henry, 2016 WL 2901775, at *3–5 (granting motion to compel arbitration based on agreement providing that "[a]ll matters in dispute between myself and the Club shall be referred to the Commissioner for binding arbitration, and his decision shall be accepted as final, conclusive and unappealable," without conducting any structural FAA analysis of the commissioner-controlled mechanism); Alexander, 649 N.W.2d at 467–68 (holding that FAA does not provide for pre-award removal of a designated arbitrator for bias; upholding Commissioner as designated arbitrator where coaches "knew Tagliabue was the designated arbitrator and knew about his relationship to the Vikings when they entered into their employment contracts," without examining whether the commissioner-controlled structure satisfied any threshold definitional requirement of "arbitration" under the FAA; Alexander is a state court decision).
31 Flores, at 181 ("not every self-declared 'arbitration agreement' or contractual provision within such an agreement is embraced by the FAA's mandate"; "the FAA's mandate is limited to the enforcement of actual 'arbitration agreements'") (quoting Viking River Cruises, Inc. v. Moriana, 596 U.S. 639, 653 (2022)).
32 Flores, at 180-81 (acknowledging FAA's "liberal federal policy favoring arbitration" and requirement to "rigorously enforce arbitration agreements according to their terms," but holding that "not every self-declared 'arbitration agreement' or contractual provision within such an agreement is embraced by the FAA's mandate") (citing AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011); Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 233 (2013)).
33 Flores, at 183-85 ("It contractually provides for no independent arbitral forum, no bilateral dispute resolution, and no procedure"; "First, the NFL Constitution's arbitration provision fails to provide an independent arbitral forum for bilateral dispute resolution"; "Second, the NFL arbitration provision fails to provide 'the procedure to be used in resolving the dispute'") (quoting Viking River, 596 U.S. at 653, 657–58).
34 Flores, No. 22-CV-871 (VEC), slip op. at 1–2 (S.D.N.Y. Feb. 13, 2026) ("Plaintiffs' Motion is GRANTED. Defendants' Motion to Compel Arbitration at Dkt. 47 is now DENIED in full. All of the claims of Plaintiffs Brian Flores, Steve Wilks, and Ray Horton against the NFL and various member teams may now proceed in this Court.").
35 Flores, No. 22-CV-871 (VEC), slip op. at 4 (S.D.N.Y. Feb. 13, 2026) ("After the Second Circuit decided Defendants' appeal, Plaintiffs filed a Motion for Reconsideration of the portion of the March 1 Order that ordered arbitration of certain of Plaintiffs' claims.").
36 Flores, No. 22-CV-871 (VEC), slip op. at 4–5 (S.D.N.Y. Feb. 13, 2026) ("The case was stayed while the appeal was pending."); Flores, at 178 (the March 1, 2023 Order compelled arbitration of the Dolphins, Cardinals, and Titans claims "on the basis of the club-specific arbitration agreements in each of the Plaintiffs' employment agreements").
37 Flores, No. 22-CV-871 (VEC), slip op. at 2 (S.D.N.Y. Feb. 13, 2026) ("The Flores-Dolphins and Wilks-Cardinals Agreements incorporate the NFL Dispute Resolution Procedural Guidelines ('DRPG'). . . . The Horton-Titans Agreement does not."); Flores, at 184 n.58 (2d Cir. 2025) ("The arbitration provision of the NFL Constitution does not reference or incorporate the NFL's Dispute Resolution Procedural Guidelines, which, by contrast, were incorporated into Flores's club-specific arbitration agreements that are not at issue in this appeal.").
38 Flores, No. 22-CV-871 (VEC), slip op. at 10 (S.D.N.Y. Feb. 13, 2026) ("Whether the claims are distinguishable turns on whether the provisions in these three particular employment agreements avoided the fatal flaws identified by the Second Circuit in the NFL Constitution. The Court finds that they do not.").
39 Flores, No. 22-CV-871 (VEC), slip op. at 11–12 (S.D.N.Y. Feb. 13, 2026) (first quotation at 10: "Adding some procedure via the DRPG does not fix the forum's lack of independence nor make the process bilateral"; second quotation at 12: "the NFL Constitution still provides the Commissioner with the authority unilaterally to dictate arbitral procedure") (citing NFL Const. art. VIII, § 8.5).
40 Flores, No. 22-CV-871 (VEC), slip op. at 12 (S.D.N.Y. Feb. 13, 2026) ("The DRPG is 'just an outgrowth' of the NFL Constitution, and it appears to be only as binding as is beneficial to the NFL.") (quoting Pls.' Reply Mem. of Law, Dkt. 166 at 8).
41 Flores, No. 22-CV-871 (VEC), slip op. at 1–2, 14 (S.D.N.Y. Feb. 13, 2026) ("Defendants' Motion to Compel Arbitration at Dkt. 47 is now DENIED in full. All of the claims of Plaintiffs Brian Flores, Steve Wilks, and Ray Horton against the NFL and various member teams may now proceed in this Court.").
42 N.Y. Football Giants, Inc. v. Flores, No. 25-790 (U.S. Jan. 2, 2026). The SDNY's February 13, 2026 ruling has itself been appealed to the Second Circuit; notices of appeal were filed by multiple parties on March 17, 2026. See Flores v. Nat'l Football League, No. 22-CV-871 (VEC), 2026 WL 407884 (S.D.N.Y. Feb. 13, 2026), appeal filed, 2d Cir. Mar. 17, 2026. As of the date of this article, both proceedings remain pending.
43 Flores, at 178 (quoting NFL Const. art. VIII, § 8.3), 183 ("It contractually provides for no independent arbitral forum, no bilateral dispute resolution, and no procedure. Instead, it offends basic presumptions of our arbitration jurisprudence by submitting Flores's statutory claims to the unilateral substantive and procedural discretion of the 'principal executive officer' of one of his adverse parties, the NFL.").
44 Flores, at 184–85 ("Late efforts by the NFL Commissioner to exercise his unilateral discretion to boot-strap a more plausible arbitration process do not alter our analysis"; "the Commissioner's unilateral designation of an adviser to the NFL represents a further extension of his unilateral power rather than its remedy.").
45 Flores, at 183–84 ("an arbitration agreement that prevents parties from submitting their disputes to an independent arbitral forum, and that instead compels one party to submit its disputes to the substantive and procedural authority of the principal executive officer of one of their adverse parties, is an agreement for arbitration in name only"; the agreement "betrays the norm of bilateral dispute resolution").
46 Flores, at 184 ("Second, the NFL arbitration provision fails to provide 'the procedure to be used in resolving the dispute'"; "Section 8.5 of the NFL Constitution grants the Commissioner the authority to 'establish policy and procedure in respect to the provisions of the Constitution and Bylaws'") (quoting Viking River Cruises, Inc. v. Moriana, 596 U.S. 639, 653 (2022); NFL Const. art. VIII, § 8.5).
47 Flores, No. 22-CV-871 (VEC), slip op. at 10, 13 (S.D.N.Y. Feb. 13, 2026) ("Adding some procedure via the DRPG does not fix the forum's lack of independence nor make the process bilateral"; "The NFL's unilateral control over the dispute resolution process is the fatal flaw. That problem is not cured by the DRPG.").
48 Flores, at 176–77 (each of Flores's employment contracts contained both a club-specific arbitration clause and an incorporation by reference of the NFL Constitution), 187 ("(1c) That same unprotected and unenforceable agreement also cannot be used to compel Flores to arbitrate his claims against the Giants and Texans or related claims against the NFL.").
49 AAA Commercial Arbitration Rules and Mediation Procedures (2025), R-13(a)–(b) (bilateral list-and-strike appointment process), R-19(a) (impartiality and independence), R-19(c) (AAA's disqualification decisions are conclusive); ICC Rules of Arbitration (2021), Art. 1(1)–(2) (ICC Court as sole independent administering body), Art. 11(1) (impartiality and independence), Art. 11(4) (ICC Court decisions on appointment, confirmation, challenge, and replacement are final), Art. 14(1)–(3) (challenge procedure).
50 JAMS Comprehensive Arbitration Rules & Procedures (2021): R-17(a)–(b) (mandatory good-faith exchange of all non-privileged relevant documents within twenty-one days of commencement of the arbitration; each party entitled to take one deposition of an opposing party or individual under that party's control, with additional depositions available upon the arbitrator's determination of reasonable need); R-24(h) (award shall contain a concise written statement of reasons unless parties agree otherwise). AAA Employment Arbitration Rules and Mediation Procedures (2025): R-1(a) (rules incorporated by reference into any agreement providing for AAA employment arbitration); R-6 (modification of rules requires written agreement of all parties; post-appointment modifications require arbitrator approval and must comply with the Employment Due Process Protocol); R-35 (arbitrator to manage exchange of information); R-43(b) (award to be in writing with written reasons, unless parties agree otherwise in writing prior to close of hearings).
51 See, for example, the decision of the Higher Regional Court Munich of 15 January 2015 in Pechstein, U 1110/14 Kart, which held an arbitration clause invalid under German competition law and treated the CAS award as not enforceable in Germany due to concerns related to CAS independence (this decision was ultimately overturned on appeal by the German Federal Court of Justice). For a historic overview of CAS and its reform in 1994 following concerns over the CAS independence and impartiality see here.
52 European Court of Human Rights, Mutu and Pechstein v. Switzerland, 2 October 2018, Judgment (Merits and Just Satisfaction), 40575/10 and 67474/10, paras. 145-159. The European Court of Justice ("ECJ") discussed the role of CAS in relation to EU law most recently in Royal Football Club Seraing, Judgment of 1 August 2025, C 600/23 and in International Skating Union v Commission, Judgment of 21 December 2023, C 124/21 P. For further discussion on the approach by the ECJ to CAS awards, see Court of Justice of the European Union delivers ruling in Royal Football Club Seraing (C-600/23) | White & Case LLP, 
53 See, for example, the decision of the European Court of Justice in Royal Football Club Seraing, Judgment of 1 August 2025, C 600/23, para. 100: "[W]henever an award has been made in the context of a dispute relating to the pursuit of a sport as an economic activity within the territory of the European Union and no provision has been made for a direct legal remedy against that award before a court or tribunal of a Member State, a possibility must exist […] for the individuals concerned to obtain indirectly, at their request or of the court's or tribunal's own motion, from any court or tribunal of a Member State that is liable to examine such an award in any manner whatsoever, effective judicial review as to whether that award is consistent with the principles and provisions which form part of EU public policy […]".
54 For additional discussion on the review of CAS awards, see European Court of Human Rights delivers final ruling in the case of Semenya v. Switzerland | White & Case LLP
55 Flores, at 176, 187.
56 Flores, at 176, 187.}

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