On February 1, 2022 – the first day of Black History Month – Brian Flores, the former head football coach of the Miami Dolphins, 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 discriminatorily denying employment to Black candidates to serve as Head Coaches, Offensive and Defensive Coordinators, Quarterback Coaches, and General Managers. The 58-page, 261-paragraph Complaint also put the other 29 teams in the NFL on notice that they too could be Defendants in this action.
The Complaint lays out the history of alleged discrimination in the NFL, and includes quotes from senior NFL executives admonishing teams for the league’s lack of progress in hiring minority candidates. “Any criticism we get for lack of representation at the GM and head coach positions, we deserve,” quoting the NFL’s Senior Vice President and Chief Diversity & Inclusion Officer, Jonathan Beane. The Complaint relies on data showing just how few head coaches, offensive, defensive, and special teams coordinators, quarterback coaches, and general managers are black, especially when you consider that 70% of NFL players are black.
What is fascinating about Flores’ lawsuit is how much the Complaint relies on information that has been apparent (and discussed) for years. In many ways, the Complaint itself could have just as easily have appeared in Sports Illustrated or a segment on ESPN rather than a filing in federal court. And, while much of what Flores’ lawyers set out in the Complaint were matters of public record, there are some facts or allegations that were not – specifically, a text message exchange between Coach Flores and his former boss, and current head coach of the New England Patriots, Bill Belichick, wherein Belichick congratulated Flores on being hired for a job he had yet to interview for, only to realize later he had “f-ed up” because he thought he was corresponding with another former protégé also named Brian. Oops.
Flores also alleges that Miami Dolphins owner Steven Ross offered to pay him $100,000 for each game the team lost during the 2019 season to secure a higher draft pick. While this explosive allegation rocked the NFL and has serious implications for the league and Ross’ ability to continue to own the Dolphins, if the charges are substantiated, it has very little to do with whether Flores was fired because of his race. In fact, there is a strong argument that Flores’ decision not to “play ball” with the owner’s desire to tank – commendable as it was – and not the color of his skin, is why he was fired. And, as any manager or HR professional knows, employees can basically be fired for any reason, so long as the reason isn’t illegal (i.e., discriminatory or because that individual engaged in protected behavior).
As a commercial and employment litigator, to say nothing of an avid sports fan, I will be following this case very closely to see what transpires in the weeks ahead. The headline of Jacob Gershman’s Wall Street Journal article from February 4, 2022, says it all “Brian Flores Case Could Test NFL – If Lawsuit Survives Early Hurdles.” Here’s what I will be looking for and the questions I have been asking:
- Is the NFL even a proper party? Brian Flores never worked for the NFL per se and was neither interviewed, hired, nor fired by the NFL. I could certainly see the NFL filing a Motion to Dismiss under Rule 12 of the Federal Rules of Civil Procedure for failure to state a claim up which relief can be granted;
- Did Brian Flores’ contract with the Dolphins have an arbitration provision? If so, I am sure they will seek to remove the case to private arbitration and out of the limelight of the Southern District of New York and the federal court system generally;
- Which comes back to a larger question – to what lengths will the NFL and the teams he has sued go to to stop this lawsuit in its tracks? In the most mundane cases, discovery is a beast, but the sheer volume of (not all relevant, but potentially embarrassing) information that could come to light is astonishing. Just ask Jon Gruden what can happen when lawyers start looking through your emails. The NFL will do everything it can to stop this matter from being litigated either in court or the court of public opinion;
- Will anyone else join Flores’ suit? To date, other Black head coaches have given interviews sharing their own experiences, but none have signed on. Former Cleveland Browns coach Hue Jackson said he was encouraged to lose but had to walk 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 issued a memo to all thirty-two NFL teams calling the diversity among its coaches to be “unacceptable” and promising to “reevaluate” the league’s current diversity, equity, and inclusion policies (a direct reference to the Rooney Rule that was implemented after Johnny Cochran threatened the sue) and requires NFL teams to interview at least one Black candidate for all head coaching vacancies. During his press conference ahead of Super Bowl XVI, Goodell went further, saying the league had “really focused to try and get the kind of [diversity] results that we would expect and [the NFL] fell short…but a long shot.” On the one hand, the league wants to look like it’s doing something; on the other hand, it does not want to do anything to bolster Flores’ case should it be allowed to proceed forward. Moreover, the league cannot (yet) mandate that teams hire particular candidates. Any changes to NFL policies (like strengthening the Rooney Rule) will require approval of at least 75% of the NFL owners or twenty-four out of thirty-two teams.
- Will Flores coach in the NFL in 2022? So far, he remains unemployed, despite being a career 24-25 as a head coach, and previously considered one of the most sought-after candidates when he was surprisingly fired by the Dolphins. Flores’ legal team has already suggested that he was not hired to be the head man for the Houston Texans because of this lawsuit, and there are presently no head coaching vacancies in the NFL.
At the end of the day, the NFL, and the thirty-two teams that comprise the league, are workplaces subject to the same employment laws as everyone else – their workplaces are just more interesting.
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About the Author:
Joshua Burgener is a Member and South Region Litigation Practice Group Co-Chair located in the firm’s Nashville office. He focuses his practice on complex commercial and business litigation, employment disputes, class action litigation, and real estate litigation. He can be reached at 615-620-1757 or jburgener@dickinsonwright.com, and his bio can be accessed here.
