By: Alexis Smartz
On February 1, 2022, Brian Flores filed an employment discrimination lawsuit against the Miami Dolphins (“Dolphins”), New York Giants (“Giants”), and National Football League (“NFL”). [1] Flores filed this putative class action alleging that the NFL discriminates against minority coaches, including by interviewing them for head coaching positions solely to fulfill the “Rooney Rule,” an internal requirement to interview minority candidates for select leadership positions, without intending to hire them.[2] In an amended complaint filed on April 7, 2022, Plaintiffs Steve Wilks and Ray Horton brought additional claims of discrimination.[3] Mr. Wilks alleges that he “was not given any meaningful chance to succeed” as a coach for the Arizona Cardinals and was “discriminatorily fired.”[4] Mr. Horton alleges that, like Mr. Flores, he was only offered head coach interviews to comply with the Rooney Rule and was never actually considered as a candidate for head coach.[5]
On June 21, 2022, Defendants moved to compel arbitration and to stay the current proceedings based on arbitration agreements contained in Plaintiffs’ employment contracts and in the NFL’s constitution, which was referenced in those contracts.[6] The NFL has a substantial incentive to move this issue to mandatory arbitration.[7] Moving to arbitration not only would help keep this matter more private, but more importantly, NFL Commissioner Roger Goodell would be the adjudicator.[8] However the 1968 case of Commonwealth Corporation v. Casualty Company, the Supreme Court held that it is improper to force arbitration with an arbitrator “that might reasonably be thought to be biased against one litigant and favorable to another.[9] Therefore, case law is clear regarding the essential nature of arbitrator neutrality.[10] Regardless, if Flores gets hired during the offseason, he says he will continue the lawsuit against the NFL.[11] He previously stated that this lawsuit is about bringing change to the hiring practices in the NFL.[12]
As of 2022, despite the fact that 70 percent of NFL players are Black, only one of the 32 head coaches is Black.[13] There were two other Black head coaches, Brian Flores of the Miami Dolphins and David Culley of the Houston Texans, but both were fired at the end of the season. [14] However, this does not come to a surprise to anyone as the league has had a long history of discriminating against minority coaches. As mentioned prior, the NFL implemented a rule called the “Rooney Rule” in 2003 to combat these discriminatory practices. The rule required every team with a head coaching vacancy to interview at least one or more diverse candidates before making a new hire.[15] As of May 2020, the Rooney Rule has been expanded to require teams to interview at least two external minority candidates for their head coaching job and at least one external minority candidate for any coordinator job.[16] When the rule was first adopted, there were some positives effects in the short term, however it did not last and as of 2022 there are fewer Black head coaches in the NFL than in 2003, when there were three.[17]
While the Rooney Rule was implemented 20 years ago, we are still discussing the same problem which is why many have hoped Flores’ case would spur real movement and change. However, as we saw days before Super Bowl LVII, journalists got a chance to ask Goodell questions on live television, but the case that has been hovering over the NFL for over a year was not mentioned once.[18] While this may seem small, it seems to point to the fact that people have forgotten the ongoing class-action lawsuit against the league.[19] While high hopes that this case was going to bring real change to the NFL’s hiring practices, it looks as if it will continue to be the same as it was. This case is currently at a standstill by the question of whether this matter should be resolved in court, or handled by arbitration controlled by the NFL, as mentioned previously.[20] The judge has requested more written briefing from the parties about the question regarding arbitration and they are due later this month.[21] Therefore, the case cannot even begin until this question is resolved and it is likely that if the judge doesn’t rule in favor of the NFL, the case will be further delayed by the appeal process.[22] In sum, even if this arbitration decision goes the way of Flores, it is unclear when the dust will settle which is a win for the league. [23] in addition, if the league does lose the case, they have a winning strategy which is to ignore it, as everyone else did days before leading up to this year’s Super Bowl.[24]
[1] See Complaint at 1, Flores v. Nat’l Football League, No. 1:22-cv-00871 (S.D.N.Y. Feb. 1, 2022)
[2] Flores v. NFL, No. 22-CV-0871 (VEC), 2022 U.S. Dist. LEXIS 139132 (S.D.N.Y. Aug. 4, 2022)
[3] Id. at 3.
[4] Id.
[5] Id.
[6] Id.
[7] See Daniel Wallach, NFL Won’t Be Able to Push Flores, Gruden Cases into Goodell-Led Arbitration Since League Is a Party, CONDUCT DETRIMENTAL (Feb. 7, 2022), https://www.conductdetrimental.com/post/nfl-won-t-be-able-to-push-flores-gruden-cases-into-goodell-led-arbitration-since-league-is-a-party [https://perma.cc/PU3D-T5ED].
[8] Id.
[9] Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145, 89 S. Ct. 337 (1968)
[10] Michael Conklin, Jennifer Barger-Johnson, & Mary Ludlum, Brian Flores’s Employment Discrimination Lawsuit Against the NFL: A Game Changer or Business as Asual?, 29 Jeffery S. Moorad Sports Law Journal 229 (2022)
[11] Teresa M. Walker, Flores says won’t drop lawsuit even if hired as coach, AP News (Feb. 2, 2022), (https://apnews.com/article/brian-flores-houston-texans-new-orleans-saints-miami-dolphins-new-york-giants-2369bf29259b8e65c2ca2ed98211f2d1
[12] Id.
[13] Meredith Polm, The NFL Faces Heat over Hiring Practices, CloseUp (Feb. 23, 2022), https://www.closeup.org/the-nfl-faces-heat-over-hiring-practices/
[14] Id.
[15] The Rooney Rule encourages hiring best practices to foster and provide opportunity to diverse leadership throughout the NFL, NFL Operations, https://operations.nfl.com/inside-football-ops/inclusion/the-rooney-rule/
[16] Meredith Polm, The NFL Faces Heat over Hiring Practices, CloseUp (Feb. 23, 2022), https://www.closeup.org/the-nfl-faces-heat-over-hiring-practices/
[17] Id.
[18] Carron J. Phillips, Brian Flores’ lawsuit wasn’t mentioned during Roger Goodell’s Super Bowl press conference — that’s a problem, deadspin (Feb. 8, 2023), https://deadspin.com/nfl-super-bowl-roger-goodell-brian-flores-lawsuit-wilks-1850091286
[19] Id.
[20] Mike Florio, Federal Judge Seeks more briefing regarding possible arbitration of Brian Flores case, NBC Sports Pro football Talks (Feb 1, 2023), https://profootballtalk.nbcsports.com/2023/02/01/federal-judge-seeks-more-briefing-regarding-possible-arbitration-of-brian-flores-case/
[21] Id.
[22] Id.
[23] Carron J. Phillips, Brian Flores’ lawsuit wasn’t mentioned during Roger Goodell’s Super Bowl press conference — that’s a problem, DEADSPIN (Feb. 8, 2023), https://deadspin.com/nfl-super-bowl-roger-goodell-brian-flores-lawsuit-wilks-1850091286
[24] Id.
