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Class Action Complaint Against NFL Teams Seeks To Reduce Bias In Hiring and Firing Decisions

By Dove Barbanel on February 21, 2022 8:52 PM

Former Miami Dolphins head coach Brian Flores had already retained counsel when he attended an interview with the New York Giants for a head coaching job. Three days before his interview, he had received a text from Bill Belichick, head coach of the New England Patriots, congratulating him on getting the job. Flores was soon to discover that the text was a mistake (sent to the wrong Brian) and that the team had decided on someone else, former Buffalo Bills offensive coordinator Brian Daboll.

Many considered Flores to be extremely qualified, and he himself described the Giants head coaching position as a "dream job." But the interview he was still scheduled to attend was a sham. Flores filed a lawsuit against the the National Football League, alleging racial discrimination.

The Rooney Rule

Since 2003, the NFL has implemented the so-called "Rooney Rule" to address concerns about a lack of Black representation among NFL coaches and management. The rule requires that teams interview a minority candidate every time they hire for a head coaching position. Teams have expanded the scope of the rule to cover minority hiring for offensive and defensive coordinator positions, general manager positions, and other staff and management positions. Failure to comply with the rule has, in some instances, led to monetary sanctions. Meanwhile, some teams who developed minority talent have been rewarded with additional draft picks.

The Rooney Rule has been a highly visible initiative by the NFL to promote diversity—a mission that has been adopted by other American corporations. However, Flores' lawsuit alleges that, since the Rule was adopted, "only 11% of Head Coach positions have been filled by Black candidates—in a league where 70% of players are black." The complaint seeks injunctive relief against the NFL, among other remedies, to cure their alleged discriminatory policies and practices.

Read Flores' complaint and thousands more with a free trial of Westlaw Edge.

The Complaint

Flores' complaint against the NFL was filed in federal court in the Southern District of New York, and is a class action suit with Brian Flores as class representative. He is represented by Douglas Wigdor of Wigdor LLP and John Elefterakis of Elefterkais, Elefterakis & Panek. The NFL is represented by Loretta Lynch, former Attorney General under Barack Obama and now a litigation partner and chairman at national Big Law firm Paul, Weiss.

The complaint was filed on February 1—coincidentally, the first day of Black History Month—and an initial conference before U.S. District Judge Valerie E. Caproni is scheduled for mid-March.

Filed as a class action pursuant to Federal Rule of Civil Procedure 23, the proposed class of NFL employees includes "[a]ll Black Head Coach, Offensive and Defensive Coordinators and Quarterbacks Coaches, as well as General Managers, and Black candidates for those positions during the applicable statute of limitations period."

The complaint alleges that members of the proposed class were subjected to unlawful conduct, including:

  • Discriminatory denial of positions;
  • Discriminatory subjection to sham and illegitimate interviews;
  • Discriminatory retention practices and policies;
  • Disparate terms and conditions of employment including lack of professional opportunity and harm to reputation; and
  • Unequal compensation policies relative to their white peers.

The relief sought includes a declaratory judgment that defendants violated the law, an award of injunctive relief necessary to cure the discriminatory policies and practices, compensatory and punitive damages with interest, and reasonable attorneys' fees and costs.

Flores' Argument

The most compelling aspect of the complaint is the factual narrative it sets out, tracing the history of discrimination in the NFL from its beginnings 100 years ago when few (if any) Black players graced its teams. In 1946, the newly-installed Los Angeles Rams signed the first two Black players in the NFL since 1933, in response to public pressure on the team as it prepared to move into the publicly-funded Los Angeles Coliseum.

Likewise, this complaint seems keyed towards nudging the NFL to change its ways through public pressure on teams. The complaint includes pictures of the head coaches of all 32 NFL teams, of whom only one is Black. Following the filing of the complaint, the Houston Texans hired Lovie Smith, bringing the total to two.

(Brian Flores interviewed for the Texans role as well, but was not hired).

The complaint also includes pictures of team general managers, of whom only six are Black while 26 are white. And it includes pictures of all NFL owners, none of whom are Black. The complaint suggests that structural bias in team organizations helps explain the lack of Black professionals both in head coaching and in coordinator positions.

Brian Flores was fired from the Miami Dolphins in 2021 despite heading consecutive winning seasons with the team. He alleges that team owner Stephen M. Ross had previously pressured him to violate League tampering rules and to accept money in exchange for losing games to secure a higher draft pick, which he had refused, sparking discontent.

He next interviewed for the New York Giants, after finding out via text in advance that he would not be chosen for the head coach job. And this was not his first alleged sham interview.

In 2019, Flores was asked to interview for a head coach position with the Denver Broncos. But when Broncos' then-general manager John Elway and others showed up late and appeared to have been drinking the night before, Flores understood that he was only being interviewed because of the Rooney Rule. All three teams have released statements denying misconduct.

The Rooney Rule was implemented by the NFL in response to a report written in 2002 by civil rights attorneys Johnnie L. Cochran, Jr. and Cyrus Mehri entitled “Black Coaches in the National Football League: Superior Performance, Inferior Opportunities." The report highlighted the lack of Black representation in head coach positions on a league with majority Black players.

Requiring teams to interview at least one minority candidate for head coach positions, the rule was named after Dan Rooney, a former owner of the Pittsburgh Steelers team who spearheaded its implementation. The municipalities of Pittsburgh and Portland later implemented the rule, as well as companies like Facebook, Amazon, Box, and Xerox. Many advocates agree that standardized corporate and professional policies that are designed to limit bias in decision-making can be effective tools for combatting discrimination. However, other recommendations in the original report in addition to the Rooney Rule were not implemented in the NFL.

The injunctive relief Flores seeks to cure the discrimination would lead to more policies and practices designed to limit bias, by creating a committee to encourage Black investment in NFL team ownership, permitting Black players and coaches to participate in the interviewing process for staff, and increasing the objectivity of hiring and termination decisions. It remains to be seen whether the NFL will seek to negotiate a settlement, defend the claims in District Court, or pursue relief in another venue, like arbitration.

From Miami to Pittsburgh

Flores, meanwhile, was just named senior defensive assistant and linebackers coach for the Pittsburgh Steelers. The Steelers' Mike Tomlin is currently one of two Black head coaches in the NFL, after Houston Texans coach David Culley was just replaced by Lovie Smith.

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