What It Is Is Football

The Nevada Supreme Court has held that Jon Gruden’s dispute with the NFL is subject to arbitration.

But his emails

In October 2021, the Wall Street Journal and New York Times published articles detailing controversial emails Gruden reportedly sent between 2011 and 2018 while working for ESPN. Shortly thereafter, Gruden resigned from the Raiders and lost his other endorsements and sponsorships. Gruden and the Raiders subsequently entered a confidential settlement agreement. Gruden then sued Goodell and the NFL (“the NFL Parties”), alleging they purposely leaked his emails to the media and forced his resignation. The NFL Parties moved to cornpel arbitration, and the district court denied the motion.

Majority holding

Gruden’s employment agreement incorporated the NFL Constitution by reference, and he agreed to arbitrate this claim under the arbitration clause in Article VIII § 8.3(E) of the NFL Constitution. Gruden has presented no contract defenses that make that clause unenforceable. The district court erred in its denial of the NFL Parties’ motion to compel
 arbitration under the NFL Constitution. Accordingly, we REVERSE the district court’s order denying the motion to compel arbitration and REMAND for the district court to grant that motion consistent with this order.

BELL, J., dissenting:

I write separately because I disagree with the majority’s interpretation of the NFL Constitution arbitration clause, and I would hold that the clause does not apply to former employees. I would also find the NFL Constitution arbitration clause unenforceable due to unconscionability. Although I agree the district court erred in certain findings, I would affirm because the outcome is correct.

Reasons

Gruden is not a team employee; he is a former employee. No action by Gruden at issue in this case occurred during his employment with the Raiders. Gruden sent the offensive emails prior to his employment and filed a complaint after his employment ended. Likewise, the NFL Parties moved to compel arbitration when Gruden was no longer a team employee. The majority points out that the NFL Parties allegedly leaked the emails and interfered with Gruden’s contract while the Raiders employed Gruden, but the “facts and occurrences” the majority points to were caused by the NFL Parties, not Gruden. Regarding Goodell’s opinion, the conduct at issue in this dispute is his own, and a finding that his own conduct is detrimental does not empower Goodell to arbitrate a claim brought by a non-employee.

Outrageous

The majority indicates, and I agree, that the employment agreement is substantively unconscionable because Goodell acting as arbitrator is outrageous. Furthermore, the NFL is empowered to unilaterally amend the NFL Constitution—including the arbitration clause at issue—at any time without notice. These factors alone show an extreme level of substantive unconscionability. Applying California’s sliding scale test as cited in the majority, with a nominal amount of procedural unconscionability and an extreme amount of substantive unconscionability, I would affirm the district court’s conclusion that this arbitration clause is unenforceable.

The case is  THE NATIONAL FOOTBALL LEAGUE; AND ROGER GOODELL, Appellants, vs. JON GRUDEN, Respondent, decided May 14, 2024. (Mike Frisch)