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DISCRIMINATION IN THE NFL HIRING PROCESS

DISCRIMINATION IN THE NFL HIRING PROCESS: THE CASE OF BRIAN FLORES

V. NATIONAL FOOTBALL LEAGUE

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Introduction

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A. History of the NFL 24 Though the exact origin of American Football is hard to determine, it has been a part of history for decades, with the first intercollegiate football game being held in 1869 of Princeton v. Rutgers. Modern American football began to develop in the 1900’s - leading to the eventual creation of what is now known as the The National Football League (NFL). Football and the NFL organization itself are now considered to be staples of American tradition and culture, but the organization has been subject to many criticisms since.The game of football was well known and played throughout small cities in the United States. As it gained popularity, a common problem began to emerge – the lack of order amongst players and rules. 25To find a solution to this problem, a group of men met up at an automobile showroom in Canton, Ohio to discuss creating an organized league for American football. By the time they parted ways, they had created the American Professional Football Association (AFPA) with Jim Thorpe - an American athlete as their first president. The association had 14 teams that were the founding members, this would soon expand and be renamed as the NFL. As more decades passed, more rules and professional changes developed the organization into the famed one it is today.

B. Creation of the Rooney Rule Through the various changes that developed the NFL which would go on to grow into a national form of entertainment for people in the United States, one particular group can be credited to heavily elevating the league– African Americans. Louis Moore, a professor at Grand Valley State University, went as far to say that “The NFL relied on Black athletes to push the league to financial stability in its early years”. 26Though African Americans were only lightly integrated then completely banned from the league in 1933, when the NFL reintegrated, black players allowed their respective teams to lead in multiple statistical categories. They also made

24 “How Did American Football Develop.

” How Did American Football Develop - DailyHistory.org, dailyhistory.org/How _ did _ American _ football _ develop. 25 “National Football League. ” Encyclopædia Britannica, Encyclopædia Britannica, Inc., www.britannica.com/topic/National-Football-League. 26 Fuhrman, Zeke. “A History of African-American Athletes. ” Bleacher Report, Bleacher Report, 3 Oct. 2017, bleacherreport.com/articles/73113-a-history-of-african-american-athletes.

gains in positions that they were previously discouraged from that advanced the position of teams. However, even though the NFL heavily relied on the black athletes for its growth, it did not necessarily feel as though African Americans were qualified enough or deserving to occupy 27one of the most important roles on a team – head coach. Throughout history, many people have noted the lack of minority head coaches in the NFL; a sense of discrimination was made abundantly clear to others, which led to the creation of the Rooney Rule which was adopted by the NFL in 2003. 28Scott Neuman, a reporter and editor at NPR, provided some context and a brief introduction to the Rooney Rule when he wrote, “Spurred on by the Pittsburgh Steelers' Dan Rooney…The Rooney Rule, which took effect in 2003, sought to correct inequities at the top of pro football's hierarchy by requiring teams to interview minority candidates for head coaching vacancies” (Neuman). The rule originally stated that every team with a vacancy in the head coach position must interview at least one or more diverse candidates before making a hire. This rule was made to combat discrimination towards minority groups in regards to the hiring of head coaches, but it has not seen extreme success. An evaluation of various statistics exhibits that it can be argued that the Rooney Rule does not effectively eliminate racial bias.

C. The Rooney Rule in Present America Though the Rooney Rule seems like an obvious practice, the explicit implementation of this rule was necessary, considering minority hirings in the NFL for head-coaching jobs was only 2%, a statistic provided by the Fritz Pollard Alliance, which is an internal group that advocates for diversity and inclusion in the NFL. The Institute for Diversity and Ethics in Sport, a group made by the NFL to study inclusion in the league, reported that since 2011, 18% of the head coaching hires were people of color. At first glance, this may seem very significant considering that before the rule was created, people of color were only hired 2% of the time. However, if the statistics are further scrutinized, people will realize that this data is not extremely accurate - the discrepancy having much to do with the lack of a significant sample size. 29Jennifer Barger Johnson, along with other authors, explored the issue stating that, “the currently available sample size of just a few Black head coaches and only sixteen to seventeen

27 “The Rooney Rule.

” NFL Football Operations, operations.nfl.com/inside-football-ops/inclusion/the-rooney-rule/. 28 Neuman, Scott. “Why a 20-Year Effort by the NFL Hasn't Led to More Minorities in Top Coaching Jobs. ” NPR, NPR, 3 Feb. 2022, www.npr.org/2022/02/03/1075520411/rooney-rule-nfl. 29 Michael Conklin, Jennifer Barger-Johnson & Marty Ludlum, Brian Flores's Employment DiscriminationLawsuit Against the NFL: A Game Changer or Business As Usual?, 29 Jeffrey S. Moorad Sports L.J. 299 (2022).

regular season games per season does not provide enough data points for robust analysis”. The issue with such a limited sample size is the extreme levels of unpredictability involved. The statistics are essentially inflated due to the holistic lack of Black head coaches, which reveals the true lack of effectiveness of the Rooney Rule. Even if it were to be argued that the eight head coaches in 2011 who identified as minorities was a significant number compared to previous years, in 2012, that number dropped to five, and the following year, it dropped to three. Currently, there are only two head coaches out of the NFL’s thirty-two positions who identify as a minority. Through the analysis of the statistics surrounding the implementation of the Rooney Rule, it can be seen that there is a clear lack of effectiveness in acquiring more minority head coaches. Overtime, the rule has progressed to include more positions in the NFL to require interviews for a greater number of positions; 30In 2022 following the Spring League meeting, NFL teams were required to interview for vacant Quarterback (QB) coach positions in hopes to facilitate the hiring for minority head coaches. However, multiple minority coaches say that the Rooney rule overall is used in a corrupt manner.

Brian Flores v. The National Football League

D. Brian Flores Case

One former head coach in particular, Brian Flores, experienced the downfalls of the lack of genuine opportunity for minorities of the Rooney rule - calling further criticism against the rule31 . The case of Brian Flores (along with two other minority coaches) versus the NFL is very interesting. Brian Flores was born in Brooklyn, New York to Honduran immigrants. In the eyes of many members involved in professional football, Flores has a very impressive resume. Flores started his coaching career with the New England Patriots where he was a Scouting Assistant and Pro Scout. Though he had the potential to significantly impact the team in these roles, the positions themselves were very low in terms of power. Flores was later promoted to Special Teams Assistant and was considered an “actual” coach at this time. He then proceeded to work his way through various coaching positions with the New England Patriots before ultimately switching teams and becoming head coach for the Miami Dolphins in 2019. At this point in his career, his credentials were exceptional; not only did he have 10 years of experience under his

30“The Rooney Rule.

” NFL Football Operations, operations.nfl.com/inside-football-ops/inclusion/the-rooney-rule/. 31 Moore, Louis. “The NFL and a History of Black Protest. ” AAIHS, 17 Sept. 2018, www.aaihs.org/the-nfl-and-a-history-of-black-protest/.

belt, he had also accumulated four Super Bowl Rings. Unfortunately, despite these successes, Flores’s coaching position was terminated after two years with the Miami Dolphins. This alleged injustice which would ultimately lead to a significant lawsuit from Flores and other minority coaches against the NFL as he believed the termination was due to “systematic racial discrimination”32 .

E. The Lawsuit

On February 1, 2022, Brian Flores, along with two other minority head coaches, Steve Wilks and Ray Horton (the plaintiffs), filed a class action lawsuit against the NFL (the defendants) in the U.S. Southern District Court of New York. In his claims, Flores states that the NFL discriminates against minority coaches in multiple ways including having an insincere hiring process solely to abide by the Rooney rule with no genuine intention to hire minority coaches.33 Rachel Reed, a writer for Harvard Law school, further explores this accusation, stating that Flores “alleges that he and other qualified Black and minority candidates are routinely held to higher standards, rejected, or not considered at all for coaching and other leadership roles in the National Football League '' (Reed). The plaintiff side essentially argued against the foundations of the Rooney Rule, alleging that NFL teams purposely gave fake interviews to minority candidates to satisfy the rule for appearance, but was silently prohibiting minorities from progressing by not hiring them or actually considering them. Flores, specifically believes this ingenuine hiring process occurred to him with the Denver Broncos and the New York Giants. Flores alleges that when he arrived at an interview with the Denver Broncos, the owner and general manager of the organization arrived hungover from the previous night and only gave him questions of extraneous matter. 34In the case of the New York Giants, he was texted by New Englands Patriots coach Bill Belichick congratulating him on winning the head coaching position for the Giants. The only problem was that Flores had not yet interviewed for the Giants – it turned out Belichick had mistakenly texted him and that another candidate, Brian Daboll, had actually won the position. Daboll was given the position

32 “Flores V. The National Football League Et Al, No. 1:2022CV00871 - Document 58 (S.D.N.Y. 2022). ”

Justia Law, law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2022cv00871/574213/58/. 33 “Brian Flores vs. the NFL. ” Harvard Law School, 11 Aug. 2022, hls.harvard.edu/today/brian-flores-vs-the-nfl/. 34 “What Happened to Brian Flores? Revisiting the Dolphins Scandal, Firing That Led to Lawsuit against NFL. ” Sporting News, 23 Oct. 2022, www.sportingnews.com/us/nfl/news/brian-flores-dolphins-scandal-firing-nfl-lawsuit/vxcywrbhznx066mowbj kunbp.

before Flores had the opportunity to interview for it, which explicitly violates the Rooney rule as it requires a team to wait to make a hire until it has interviewed a minority candidate. Put simply, the Giants intended to interview Flores despite having already decided to give the job to Daboll, thus exposing Flores’ interview offer as a “sham” and for show. 35On April 7, 2022 the lawsuit claims were amended to include the assertions of Steve Wilks and Ray Horton who both alleged that they were not given equal opportunities or any meaningful chances to succeed. Mr. Wilks further alleges that he was “discriminatorily fired”.

Chance of Arbitration or Open Court

F. Likelihood of Open Court Trial Though Mr.Flores has an appealing case with additional support, in his employment contract with the NFL and the NFL constitution, arbitration agreements were cited. This fueled the Defendants to compel arbitration to stay consistent with the agreements outlined in their contracts. Arbitration of NFL cases would involve a hearing adjudicator provided by the league; in this specific case, it would be the president of the NFL, Roger Goodell. Sports lawyer Peter Carfagna expressed his legal opinion and stated, “The NFL will no doubt rely heavily upon the long line of favorable Federal Arbitration Act precedents to support its motion to compel arbitration. It has even been applied in cases involving alleged violation of plaintiffs’ civil rights.” Although he says this, he stresses that, “What Flores is saying is that this is intentional wrongdoing, systemic racism. It may be that a court would allow that to be heard, overriding the otherwise binding waiver of recourse. That is definitely something to watch.” Essentially, if the case goes to court, then Mr.Flores may be able to prove systematic racism in the NFL, which would be highly significant for his case. David Lopez, another sports lawyer, states that “there is both an individual claim and a class action claim. For the individual case, Mr. Flores will have to prove that he was treated less favorably than similarly-situated white coaches, but to build a class suit, he needs to show that discrimination basically is the standard operating procedure of the NFL.” Lopez also believes that a key part of Mr.Flores’ strategy should be to get it out of arbitration and into public court because that is where he and his team will have a viable chance of winning the case. Lopez states that when the case gets out of arbitration, “There are many different positives that come out of it including actual sentencing done by the judiciary rather

35 “Flores V. The National Football League Et Al, No. 1:2022CV00871 - Document 58 (S.D.N.Y. 2022). ”

Justia Law, law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2022cv00871/574213/58/.

than sentences provided by the NFL that are not too serious.” However, due to the explicit agreement for arbitration in the employment contracts provided by the NFL, it will be difficult to not compel arbitration.

G. Current Standing of the lawsuit In order to attain fair outcomes from an organization they seemingly did not trust, the plaintiffs filed for a motion for discovery on the motion brought forward by the defendants to compel arbitration. The plaintiff side desired to acquire documents concerning the arbitration agreements and policies as well as the relationship of the arbitrator with the NFL and his/her previous rulings. In June of 2022, the NFL opposed the plaintiff’s motion for discovery. In order to stay consistent with precedents set by court rulings, the court held up the belief that an 36“agreement to arbitrate is binding unless the agreement becomes invalid under state contract law”. For the court to grant the motion for discovery, the plaintiffs must present sufficient and reliable evidence that is more than an allegation. Unfortunately, in this case, the plaintiff’s failed to produce reliable and sufficient evidence to have their motion granted. Due to their failure to offer facts or evidence to question the validity of the agreement to arbitrate, their motion for discovery was denied, proving that this battle against the NFL will be a long and difficult one.

Conclusion

J. Conclusion

Though the NFL has come a long way from when it was created in the 1920’s. There needs to be a bigger change in order to secure the genuine recruitment of minority coaches who are well qualified for the position. Despite the Rooney rule being created to combat discrimination against African Americans and minorities in regards to head coaching positions in the NFL, it has not been met with real success. This rule was supposed to promote diversity, but many incidents indicate otherwise, most notably Brian Flores’s lawsuit. The statistics associated with the Rooney Rule and the handling of Flores from position to position both support the argument that the rule is ultimately ineffective. Only time will tell if the legal case brought forth by Brian Flores will be taken to court, and whether he will be able to prove systemic racism in the NFL. Regardless, there needs to be a real change in the system to facilitate the genuine

36 “Flores V. The National Football League Et Al, No. 1:2022CV00871 - Document 58 (S.D.N.Y. 2022). ”

Justia Law, law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2022cv00871/574213/58/.

inclusion of minorities in various positions in the NFL including head coaching positions where they can progress and gain equal opportunity to succeed.

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