How likely is Brian Flores’ NFL lawsuit to result in systemic change?
Tuesday afternoon, I was teaching my sports and business law class at Villanova Law School. The topic of the day was the changing nature of college athletics and the drastic change due to the Alston affair and the advent of name, image and likeness monetization. I lectured for an hour and a half before taking a break, only to have several students approach me with the latest from Brian Flores vs the NFL. That was the end of discussing NIL that day.
Pioneer of sports law
Brian Flores has filed a class action lawsuit against three named NFL teams – the Dolphins, Giants and Broncos – as well as the entire NFL. He is represented by law firm Wigdor, known for representing survivors of Harvey Weinstein’s sexual abuse.
A class action lawsuit means others are welcome, and I suspect Flores and his attorneys have several other candidate coaches and general managers ready to join us. The lawsuit was filed on the first day of Black History Month and is replete with allegations of racism and terms such as “slavery” and “plantation.” It details the controversy over the racial standards of the NFL’s concussion regulations among other allegations of league bias. The charge of systemic racism is strong.
A defining characteristic of sports law plaintiffs is personal sacrifice to serve the greater good, sacrificing future careers to help those of those who will follow. Examples include Curt Flood, John Mackey and, yes, Colin Kaepernick. We can now add Brian Flores to this list.
Flores probably understands what so many people have commented on since his firing: bringing such a case is potentially the end of his NFL coaching career. First of all, I’m not so sure: it’s never very long. Moreover, with claims that strike at the heart of so many areas dear to the NFL – systemic racism, competitive balance, integrity, etc. – the real goal is change. The only question is how small or how big this change is.
I remember when this rule was established in the early 2000s; I worked for the Packers, and the league simply told us that when interviewing for the head coaching position, a minority candidate had to be included. There were no guidelines on the “seriousness” of this interview. The rule was later extended to include the position of general manager. (I recently reviewed the history and current status of the rule with Jim Rooney, son of its creator, the late Dan Rooney, on this podcast.)
Over the years, the results have been mixed, but the number of colored coaches was certainly at an all-time low after the firing of Flores and Texans coach David Culley. And while there were two black general managers named last week (Kwesi Adofo-Mensah of the Vikings and Ryan Poles of the Bears), the headlines continue to speak of a league with 75% of its population black players n having only one Black Head Coach (Mike Tomlin).
Flores shone a huge spotlight on the scenario the NFL tried to avoid: mock interviews with minority candidates just to tick the box for the rule requirement. Flores claims the Broncos’ management showed up disheveled, hungover and disinterested for his interview a few years ago. And, in damning detail, Flores presented text messages in which Bill Belichick, thinking he was texting Brian Daboll (who is white), revealed that the Giants made their decision on Daboll before interviewing Flores. .
The fake interview dilemma
This question is difficult. Owners often lock in on one candidate and singularly focus in their relentless pursuit of that trainer. It certainly happened with the Raiders and Jon Gruden a few years ago, and maybe with the Raiders and Josh McDaniels this time around. It is said to have happened a year ago with the Jaguars and Urban Meyer. And, in a reverse situation, I remember talking to former Colts general manager Bill Polian, who told me that when Tampa Bay fired Tony Dungy, he knew he wanted Dungy and that no other candidate, regardless of race, would be a serious contender. .
How to solve the problem? Well, my best bet is to come up with penalties that matter. Teams will do what they do in this regard until it hits them where it hurts: maybe hefty fines, but more likely the forfeiture of draft picks and potential reduction in spending caps. Owners all have money to pay fines, but no owner wants to impose on their team a lost draft pick and/or less money to spend on players.
Of course, no team would ever allow fake interviews. The Broncos and Giants have previously released public relations statements that their processes were fair, and if this case ever goes to trial, team decision makers would state why they chose the nominees they chose over Flores.
For these reasons, violations of the Rooney Rule are difficult to prove, even when the evidence seems clear. I think deep down that Flores and his lawyers know this, but it’s part of their larger goal of bringing about change.
I won’t soon forget one of my students saying in class yesterday, with a resigned look on her face, “Why does Brian Flores have to be the one to change the NFL?” Why can’t they just do the right thing?
There are two charges against the former Flores team that strike at the heart of the league’s rules on integrity, competitive balance and tampering.
First, Flores states that in the winter of 2020, owner Stephen Ross told him to meet on a yacht for a supposedly impromptu meeting with a top quarterback. Although it’s salacious, timing will be key. Did “Winter 2020” mean after the season but before the official start of free agency? Or maybe after the given player has exercised an option to leave their former team? The circumstances surrounding this alleged meeting will be analysed, including the language of the player’s contract and the involvement of the player and his agent.
The most damaging allegation is the accusation that in 2019, Ross tried to induce Flores to deliberately lose matches, with an alleged payment of $100,000 per loss. Additionally, the lawsuit alleges that Flores was told by Chris Grier, the team’s general manager, that Ross was “angry” with Flores for “jeopardizing the team’s draft position.”
These assertions strike at the heart of the NFL’s mantras of competitive balance and integrity. “Tanking” may be a media fascination, but there has never been such an accusation with solid evidence of this plan. The key, of course, will be to have that proof.
The NFL, like all leagues, has embraced sports betting, having to walk a fine line to guard against breaches of integrity. Now Ross, one of the “members” of the league, has allegedly committed a massive breach of integrity.
Causes of Action Against the NFL
The first cause of action states that the NFL violated Section 1981 of the Civil Rights Act.
In 2020, the Supreme Court ruled that the standard was the “without” test: “Without the existence of X, would Y have occurred?” Flores would bear the burden of proving that race was the but-for factor.
The other cause of action alleges a series of violations of human rights laws that subjected Flores — and other band members — to disparate employment conditions compared to their white peers. Again, Flores will have to show that the teams engaged in discrimination (here the phrase is “acted with a discriminatory motive”) and find the smoking gun(s).
More broadly, Flores seeks a host of systemic changes to the NFL, including:
• Funding of a committee dedicated to the search for black investors to take majority stakes in the NFL.
• Allow certain black players and coaches to participate in the interview process for coaching and general manager positions.
• Require teams to reduce in writing the rationale for hiring and firing decisions, including a full explanation of the basis for any subjective influence.
• Create and fund a training program for lower-level black coaches who demonstrate an aptitude and interest in advancing to a coordinator position.
• Salary transparency for all general managers, head coaches and coordinators.
What’s going to happen
As we know, the legal schedule moves much slower than the NFL schedule. This case attracted a lot of attention, which would last a few days before the sports world focused on the Olympics and then the Super Bowl. And, as we know so well, there will be more weekly, if not daily, NFL drama.
The NFL will stand by public relations statements about diversity and say the case is “without merit.” The league will tout — to its credit — implementing further advancements of the Rooney Rule, rewarding franchises with compensatory draft picks that develop minority candidates hired as general managers by other teams. Additionally, the NFL has held networking events for minority coaches and front office staff over the years, a positive step that deserves recognition.
But Flores’ suit brings fresh perspective and highlights the lack of racial diversity in the leadership of a predominantly black league. The NFL hasn’t been shy about speaking out against racism, with messages painted in end zones and adorned on the backs of players’ helmets. Cynicism and skepticism will now rain down on the league as these messages ring hollow. Indeed, the league’s top black executive, Troy Vincent, has been candid about the issues in this area.
The key to this and any trial like this, of course, will be evidence. Belichick’s lyrics are one piece, but what else is there? What evidence is there that the Broncos half-heartedly conducted a fake interview? What’s the proof that Ross bribed Flores to lose? What’s the proof of the invitation to the yacht with the quarterback? And perhaps most importantly, what will be the evidence of others joining the class action with their own allegations?
Many say NFL owners are shaking in their boots about the discovery and disclosure of sensitive and confidential information. Well, we said that about the Kaepernick case, we said that about the concussion case, we said that about the St. Louis case; and we say it now about the Washington football team case (now the COs), the Gruden case and this Flores case. The NFL has very expensive lawyers…there are always lawyers– and they seem undefeated to avoid discovery.
Returning to where we started, Flores seems interested in much more than personal vindication. This is about the greater good: changing the systemic issues that have held back black coaches.
The success or failure of this case will be measured by what happens on this front, and the world is watching now.
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