February 1, 2022 – the first day of Black History Month – Brian Flores, the former head football coach of the Miami Dolphins, has filed a class action lawsuit against his former team, as well as the New York Giants , the Denver Broncos and the National Football League (“NFL”) for discriminatingly denying employment to black candidates to serve as head coaches, offensive and defensive coordinators, quarterback coaches and of general managers. The 58-page, 261-paragraph complaint also warned the other 29 NFL teams that they could also be charged in this action.
The complaint lays out the history of alleged discrimination in the NFL and includes quotes from senior NFL executives berating teams for the league’s lack of progress in hiring minority applicants. “Any criticism we receive for the lack of representation at the general manager and head coaching positions, we deserve it,” quoting NFL Senior Vice President and Director of Diversity and Inclusion Jonathan Beane. The complaint is based on data showing how few head coaches, offensive, defensive and special team coordinators, quarterback coaches and general managers are black, especially considering that 70% of NFL players are black.
What’s fascinating about Flores’ lawsuit is how much the complaint is based on information that has been apparent (and discussed) for years. In many ways, the complaint itself could just as well have appeared in Sports Illustrated or a segment on ESPN rather than a filing in federal court. And, while much of what Flores’ lawyers laid out in the complaint was in the public domain, there are some facts or allegations that were not – in particular, an exchange of text messages between the coach Flores and his former boss, and current New England Patriots head coach Bill Belichick, in which Belichick congratulated Flores on being hired for a job he had yet to interview , only to realize later that he had “screwed up” because he thought he corresponded with another former protege also named Brian. Whoops.
Flores also alleges that Miami Dolphins owner Steven Ross offered to pay him $100,000 for every game the team lost during the 2019 season in order to get a higher draft pick. As this explosive allegation rocked the NFL and serious implications for the league and Ross’s ability to continue owning the Dolphinsif the charges are true, it has very little to do with Flores being fired Due to his race. In fact, there’s a solid argument that Flores’ decision not to “play ball” with the owner’s desire to tank – laudable as that is – and not the color of his skin, is why he was fired. And, as any manager or HR professional knows, employees can be terminated for any reason, as long as the reason is not illegal (i.e. discriminatory or because that person adopted a protected behavior).
As a commercial and employment lawyer, not to mention a sports enthusiast, I will be following this case very closely to see what unfolds in the weeks to come. The title of the Wall Street Journal article by Jacob Gershman from February 4, 2022 says it all “Brian Flores Case Could Test NFL – If Lawsuit Survives Early Hurdles.” Here’s what I’m looking for and my questions:
- Is the NFL even a real party? Brian Flores never worked for the NFL in itself and was neither interviewed, hired, nor fired by the NFL. I could certainly see the NFL file a motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure for failure to file a claim for which relief may be awarded;
- Did Brian Flores’ contract with the Dolphins include an arbitration clause? If yes, I am Of course they will seek to refer the matter to private arbitration and out of the spotlight of the Southern District of New York and the broader federal court system;
- Which comes down to a larger question — how far will the NFL and the teams he sued go to stop this lawsuit in its tracks? In the most mundane cases, discovery is a beast, but the sheer volume of information (not all relevant, but potentially embarrassing) that could be revealed is astounding. Just ask Jon Gruden what can happen when lawyers start scouring your emails. The NFL will do everything in its power to ensure that this matter does not go to court or to the court of public opinion;
- Will anyone else join the Flores costume? To date, other black head coaches have given interviews to share their own experiences, but none have signed on. Former Cleveland Browns coach Hue Jackson said he was encouraged to lose but had to go back comments that he was affirmatively offered money to do so;
- What will the NFL do internally? Since the complaint was filed, NFL Commissioner Roger Goodell has issued a memo to the NFL’s thirty-two teams calling diversity among its coaches ‘unacceptable’ and promising to ‘re-evaluate’ current diversity policies. , equity and inclusion league (a direct reference to the Rooney Rule which was implemented after Johnny Cochran threatened to sue) and requires NFL teams to interview at least one black candidate for all head coaching vacancies. In his pre-Super Bowl XVI press conference, Goodell went further, saying the league was “really focused on trying to get the kind of [diversity] results we expect and [the NFL] fell short… but a long shot. On the one hand, the league wants to look good Something; on the other hand, he doesn’t want to do anything to strengthen Flores’ case if he were allowed to move forward. Additionally, the league cannot (yet) compel teams to hire particular candidates. Any changes to NFL policies (such as tightening the Rooney Rule) will require the approval of at least 75% of NFL owners or twenty-four of thirty-two teams.
- Will Flores coach in the NFL in 2022? So far, he remains unemployed, despite a 24-25 career as head coach, and was previously considered one of the most wanted candidates when he was surprisingly fired by the Dolphins. Flores’ legal team has previously suggested he wasn’t hired to be the head of the Houston Texans because of this lawsuit, and there are currently no vacant head coaching positions in the NFL. .
Ultimately, the NFL and the thirty-two teams that make up the league are workplaces subject to the same employment laws as everyone else – their workplaces are just more interesting.