Attorneys for former Las Vegas Raiders head coach Jon Gruden filed a petition with the Supreme Court of Nevada late Monday evening in the Pacific time zone for what amounts to “instant replay” of his recent defeat in court to the NFL.
Gruden, 60, seeks an en banc reconsideration, which, if granted, would mean all seven justices on the Court will review his case.
Gruden sued the NFL in 2021 claiming that NFL commissioner Roger Goodell or someone on the commissioner’s behalf tortiously interfered with his Raiders employment contract. Gruden accuses Goodell of leaking to The Wall Street Journal and The New York Times copies of racist, misogynistic and homophobic emails Gruden wrote as an ESPN employee a decade earlier. Gruden resigned from the Raiders in disgrace, forfeiting about $60 million on his contract along with millions of dollars in endorsements and other deals.
The NFL flatly disputes Gruden’s accusations and contends Gruden is misdirecting blame for something he did: write highly offensive emails that would cost anyone their job in any field.
The league also maintains no court should hear the case since Gruden contractually accepted a league arbitration process, overseen by Goodell, for workplace disputes. Arbitration provisions are normally enforceable and prevent employees or former employees from obtaining judicial review until after they have exhausted arbitration.
In 2022, a trial judge denied the NFL’s motion to dismiss the case to arbitration. Clark County (Nev.) District Court Judge Nancy Allf objected to the peculiarity of Goodell, a defendant in Gruden’s lawsuit, serving as the arbitrator to determine the merits of Gruden’s allegations against Goodell. There is an obvious conflict of interest for Goodell in that situation; even if Goodell picks an arbitrator to hear the dispute, there remains a conflict since Goodell would be picking (and, through the NFL, presumably paying) the person to decide the matter. Allf also found it legally significant that Gruden wasn’t provided a copy of the league’s constitution which contains the arbitration terms that his contract incorporated by reference.
But in May, Chief Justice Elissa Cadish and Justice Kristina Pickering sided with the NFL and found Allf had “committed clear error” in her decision. Cadish and Pickering stressed that Gruden contractually accepted arbitration and contractually affirmed to having “read the NFL Constitution and By-Laws and applicable NFL rules and regulations, and understands their meaning.”
Justice Linda Marie Bell dissented. She said it was “outrageous” that Goodell can be both the accused and arbitrator. She also described the ability of the NFL to unilaterally alter the arbitration clause, “at any time without notice,” as reflecting an “extreme level of substantive unconscionability.”
Petitions for en banc reconsiderations are normally denied. Under state rules, reconsiderations are “not favored” and “ordinarily will not be ordered” except in two circumstances: to maintain uniformity of decisions or to address “a substantial precedential, constitutional or public policy issue.” Any two justices can “compel” the court to grant a petition, though such a granting doesn’t guarantee there would be another hearing—the case could be disposed of by written order instead.
Gruden hopes other justices see the matter like Bell and not like Cadish and Pickering.
To that end, Gruden’s attorneys raise three core arguments in their brief.
First, they maintain the NFL failed to present evidence showing that Goodell deemed the underlying dispute “conduct detrimental to the best interests of the League or professional football.” This is important, Gruden’s attorneys assert, because application of the arbitration clause in the league constitution requires the commissioner to make such a finding. This argument didn’t work with Cadish and Pickering, as they found either the emails becoming public or the possible role of leaks sufficient for a finding conduct detrimental was at issue.
Second, Gruden’s attorneys contend since Gruden was not in contract with the NFL—his employer was the Raiders not the league itself—the league should not be able to enforce an arbitration clause. They argue applicable law in California “bars non-parties from compelling arbitration except in limited and narrow circumstances.”
Third, Gruden’s attorneys insist enforcement of arbitration constitutes “procedural unconscionability,” meaning “oppression or surprise” and when a person “has no meaningful choice” regarding a contractual term. Gruden has maintained he had no ability “to negotiate any aspect” of the league constitution, including an arbitration clause “buried within a separate 448-page document that was not provided to Gruden.”
The brief also tries to frame the dispute as one that goes beyond the celebrity and atypical circumstance of a former NFL head coach suing the NFL commissioner over the release of bigoted emails to national media into one that could impact ordinary Americans, be they bosses or employees.
“This case,” the brief asserts, “presents exceptionally important issues and merits en banc reconsideration as, if left in place, the Order will permit employers and other parties to freely impose unreasonable and oppressive terms without any of the procedural and substantive protections that have been carefully established.”
Although in a different jurisdiction (a federal court in the Southern District of New York) and involving a different set of facts (a coach who claims he was the victim of race discrimination), Minnesota Vikings defensive coordinator Brian Flores has also seen the NFL use an arbitration clause to limit his employment-based lawsuit. Flores is currently appealing to the U.S. Court of Appeals for the Second Circuit.
This story has been updated to include excerpts of the court filing.
