Former Las Vegas Raiders head coach Jon Gruden beat the odds Thursday when the Supreme Court of Nevada granted his petition for en banc reconsideration of his case accusing NFL commissioner Roger Goodell or someone on the commissioner’s behalf of tortiously interfering with his Raiders contract.
The ruling was captured in a brief statement, without any reasoning or explanation other than an indication that at least two of the Court’s seven justices voted to compel reconsideration. The reconsideration means the seven justices will review Gruden’s and the NFL’s dueling arguments over whether in 2022 Clark County (Nev.) District Court Judge Nancy Allf correctly denied the NFL’s motion to dismiss the case to arbitration.
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In May, a panel of three justices (Chief Justice Elissa Cadish, Justice Kristina Pickering and Justice Linda Marie Bell) sided two-to-one with the NFL that Allf erred.
Factually, the case concerns the leaking of racist, misogynistic and homophobic emails Gruden wrote when he was an ESPN employee a decade ago. Copies of the emails were published in The Wall Street Journal and The New York Times and triggered a media firestorm. Gruden resigned in disgrace, forfeiting about $60 million on his contract, losing endorsement deals and seeing his reputation as a one-time Super Bowl winning coach badly tarnished. Now 61, Gruden is out of the NFL. He’s an advisor to the Seamen Milano of the European League of Football.
While the case has garnered headlines because it involves Gruden, Goodell, ESPN and bigoted emails, the legal controversy is currently about a more technical and less sensational topic: the enforceability of arbitration language Gruden contractually accepted in his employment contract. If the language is enforced, Gruden’s case is tossed to a confidential arbitration process overseen by Goodell and most likely never heard from again; if the language is not enforced, the case moves forward, though could still fall short later.
As previously explained, petitions for en banc reconsiderations are usually denied by the Court and are considered disfavored. The underlying policy is that the petitioner (here Gruden) already had their chance before the Court and lost. But if at least two of the justices vote for a reconsideration, it is granted.
Adam Hosmer-Henner and other attorneys representing Gruden offered several arguments urging reconsideration. They insisted the league lacked evidence proving that Goodell—as required in the arbitration language—actually found the emails to amount to conduct detrimental. They also noted Gruden was in contract with the Raiders, not the NFL, meaning any arbitration language subject to an employment contract ought to be invokable by the Raiders and not the NFL. They also described the enforcement of arbitration language found in league documents, which Gruden obviously never negotiated, as the kind of procedural unconscionability that should trouble all Americans. Goodell being able to serve as the arbitrator for a case in which he is the defendant was also portrayed as illogical.
But Maximilien D. Fetaz and other attorneys for the NFL insisted Gruden already had his chance and blew it. They emphasized the case doesn’t warrant another bite at the apple since it concerns application of another state’s (California’s) laws, and there’s no dispute that Gruden willingly signed his employment contract and accepted arbitration. They also argued the case has no bearing on ordinary Americans, who aren’t signing $100 million employment contracts and don’t have agents negotiating for them. To that point, NFL attorneys emphasized “the unique context of a professional sports league” in Gruden’s case and how it centers on a high-profile and wealthy football coach who was assisted by “an elite sports agent.”
Given that two of the seven justices ruled against Gruden and one ruled for him, it would seem he begins the reconsideration process down two-to-one. But at least two justices voted to hear his petition, so perhaps his odds are better. Either way, the side who convinces four or more justices will win.
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