Former Las Vegas Raiders head coach Jon Gruden defied the odds Thursday when the Nevada Supreme Court granted his request for an en banc rehearing of his case alleging NFL commissioner Roger Goodell or another person acting on the commissioner's behalf of unlawful interference with his contract with the Raiders.
The ruling was contained in a brief statement, with no justification or explanation other than to point out that at least two of the Court's seven judges had voted to force a retrial. The retrial means seven justices will review Gruden and the NFL's matchup arguments on whether in 2022 Clark County (Nev.) District Court Judge Nancy Allf properly denied the NFL's request to dismiss the case to arbitration.
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In May, a three-judge panel (Chief Judge Elissa Cadish, Judge Kristina Pickering and Judge Linda Marie Bell) sided two-to-one with the NFL in which Allf erred.
In fact, the case concerns the leak of racist, misogynistic and homophobic emails that Gruden wrote a decade ago when he was an employee of ESPN. Copies of the emails were published in Wall Street Journal I New York Timesa and caused a media storm. Gruden resigned in disgrace, losing about $60 million of his contract, losing sponsorship deals and seeing his reputation as a once-Super Bowl-winning coach severely tarnished. Now 61, Gruden is out of the NFL. He is an advisor to Seamen Milano of the European Football League.
While the case made headlines because it involved Gruden, Goodell, ESPN and bigoted emails, the legal controversy now centers on a more technical and less sensational topic: the enforceability of arbitration language that Gruden accepted in his employment contract. If the language is imposed, Gruden's case will be transferred to a confidential arbitration process overseen by Goodell, and he will likely never be heard from again; if the language is not enforced, the case moves forward, although it may still not be resolved at a later date.
As previously explained, requests for en banc reconsideration are typically denied by the Court and found to be unfavorable. The basic principle is that the petitioner (Gruden here) has already had a chance before the Court and lost. However, if at least two judges vote for a retrial, it is accepted.
Adam Hosmer-Henner and other lawyers representing Gruden presented several arguments calling for a retrial. They insisted that the league lacked evidence that Goodell – as required by the arbitration language – actually found the emails to be harmful conduct. They also noted that Gruden was under contract with the Raiders, not the NFL, meaning any arbitration language under the employment agreement should be invoked by the Raiders, not the NFL. They also described the enforcement of arbitration language in league documents, which Gruden obviously never negotiated, as the kind of procedural unconscionability that should worry all Americans. The possibility of Goodell serving as an arbitrator in a case in which he is a defendant was also presented as illogical.
But Maximilien D. Fetaz and other NFL lawyers insisted that Gruden already had his chance and they squandered it. They emphasized that the case does not justify another bite at the apple because it concerns the application of the law of another state (California) and there is no doubt that Gruden voluntarily signed the employment contract and agreed to arbitration. They also argued that the case had no bearing on ordinary Americans who did not sign $100 million worth of employment contracts and did not have agents negotiating for them. To this point, NFL lawyers have emphasized the “unique context of a professional sports league” in Gruden's case and that it centers on an influential and wealthy football coach who is aided by an “elite sports agent.”
Given that two of the seven judges ruled against Gruden and one ruled for him, he appears to be starting a two-to-one retrial process. But at least two judges voted to hear his petition, so perhaps his chances are better. Either way, the side that convinces four or more judges will win.
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