Ok, Coach Brian Flores SUED THE NFL AND THE OWNERS With Racial Discrimination
SO TELL ME, HOW DO THE FACTS OF THIS CASE FIT INTO DISCRIMINATION LAW?
All discrimination cases are generally subject to a burden shifting rule[1], which I explained in more detail in a previous blog. Even though this case is about football, the rule is best explained by analogy to a volleyball game between the employee and the employer. Applying this rule to Brian Flores, the employee, he only has to show the following things to get his serve over the net and start the game:
- he is a member of a “protected class”, in this case, African American;
- he was qualified for the job, which is clear because he coached back to back winning seasons for the Miami Dolphins;
- he suffered what we call an “adverse job action.” His firing by the Miami Dolphins and the failure of the New York Giants to hire him were clearly adverse job actions.
To return the serve over the net, the Dolphins and the Giants, as the employers, each have to show legitimate, non-discriminatory reasons for the actions they took.
- According to Flores Complaint, ¶ 14, the Dolphins justification for firing him was “poor collaboration”.
- Again, according to Flores Complaint, the Giants will presumably say that after interviewing all the candidates, Brian Daboll was a better fit for their franchise, ¶¶ 17-21. (Each of these are weak returns of the serve – more about each of them below).
To return the ball over the net back to the employer win at trial[2], the magic words for what the employee must show are: “the adverse job action occurred under circumstances giving rise to an inference of discrimination.” This might sound complicated, but the best way to do it here is for Flores to show that the reasons the employers gave were just “pretext,” and not the real reasons. As the reason given by the employer to return the serve gets less believable, it gets easier for the employee to win the case.
Let’s talk about the reasons the teams gave – and here’s where it starts to get really good for Flores. The Dolphins accusation of “poor collaboration” fits right into Flores’ charge that Stephen Ross, the owner, told him to “tank” to improve the teams draft position, offering him a $100K bonus for each game he lost, and also pressured him to recruit a quarterback in violation of the League tampering rules, but Flores outright refused. This is very interesting, and the Dolphins could say they didn’t fire him because he was African-American, but because he was insubordinate; (i.e., didn’t do what he was told). In other words, Ross could theoretically say “I’m not a racist – I would have said the same things to a white coach.” The problem is that both of these acts would subject Ross to serious discipline from the NFL, and offering a coach money to tank is actually a felony that carries prison time. Obviously, the Dolphins have no choice but to deny these acts, and if the jury feels that they are lying, the verdict for Flores could be huge. To put icing on the cake, they fired Flores after he led a franchise that was supposed to be near the bottom of the standings to its first back to back winning seasons since 2003.
The Giants’ selection of Brian Daboll is very problematic because of the Rooney Rule and text message from Bill Belichick, the Head Coach of the New England Patriots. The Rooney Rule, named after Dan Rooney, a former chairman of the NFL diversity committee, requires teams to interview at least one black candidate for any Head Coach vacancy, but it does not require any team to hire anyone. Before Mr. Flores’ scheduled interview for the Head Coach position with the Giants, Belichick sent Brian Flores a text message congratulating him, saying he heard from the Giants that he “was their guy”. But when Flores texted back asking Belichick if he thought he was talking to Brian Flores or Brian Daboll, Belichick’s response was: “I’m sorry – I fucked this up…..I think they are naming Brian Daboll.” Belichick will be asked, under oath, why he thought Brian Daboll was “their guy”, who told him this, and when. According to the Complaint, there are also other witnesses likely to testify that the decision was made to hire Brian Daboll before Flores’ interview. This is pretty solid evidence that the Giants’ interview of Flores was just a sham conducted to satisfy the Rooney Rule after they had already decided to hire the white candidate. While “failure to hire” cases are usually very difficult in employment law, this sounds like pretext, and might be tough for the Giants to defend, given the history of sham “Rooney Rule” interviews that have been given in the League. On the other hand, the Giants could say that we wanted to continue interviewing to have a second choice in case Daboll accepted another position somewhere else. In a “failure to hire” case, the employer has a lot more leeway than in the usual case where the employee was told why he was being fired.
This is also a case where statistical evidence can, and likely will be used to demonstrate that a very large percentage of the Head Coaches, Offensive Coordinators, Defensive Coordinators, and Quarterback Coaches came from the pool of former players. Currently, about 70% of the players in the NFL are African-American, but they are grossly underrepresented in all coaching positions. The numbers are too far out of whack to have occurred by random chance, and discrimination is a good likely explanation. There are also very persuasive arguments in the complaint that black coaches have been fired after turning in winning seasons, while their white counterparts are often given second and even third chances after very weak performances.
This Lawsuit Was Filed as a Class Action – What Will That Mean?
Usually, when class actions are settled, some formula is set up and approved by the judge to distribute the settlement funds to the class members. In a case like this, though, the facts of each discrimination case will be too different to be handled as a class. A separate trial would have to be held in each individual case to determine if the particular firing, or denial of a promotion, or other job action was actually discriminatory. For example, in some cases it may be clear that some of the African-American candidates were not qualified for the positions they sought. Judges cannot certify a class when some of the people who are covered by the class definition are not entitled to recover anything at all. For another thing, how much each qualified candidate is entitled to in damages varies too much in each case to be easily determined in a class action. In this opinion of this writer, the class cannot be certified in the ordinary sense for these reasons.
On the other hand, if Brian Flores is serious about wanting to force change in the League as opposed to obtaining a settlement for himself, the class could be certified for the purposes of “declaratory relief”. What does that mean? It means that even though no money is awarded to any class members, the Court could make specific determinations that the teams and the League acted in ways that discriminated against African-American players who sought or had coaching positions. The Court could also conceivably order various rule changes in the League. Such a high profile case would probably be appealed to the US Supreme Court, which, as currently constituted, might not permit “affirmative action” type rule changes. On the other hand, reforms could certainly be brought about by a settlement of the case, and settlements generally cannot be appealed. The lawsuit could also bring out real changes which could be incorporated into the collective bargaining agreement, which would be much less likely to be changed on appeal.
People may have difference opinions about Brian Flores, but it’s safe to say his desire to make real changes is sincere because he has risked the rest of a promising coaching career to make everyone look more closely at the ongoing failure of the NFL to offer equal opportunities.
[1] This rule is called McDonnell Douglas, named after the discrimination case against that Company which created the precedent.
[2] Before the trial, the employee has to get past what is called a “motion for summary judgment.” This means that the employer will file papers asking the judge to dismiss the case, arguing that the employee doesn’t have enough evidence to win at trial. The employer makes this motion in almost every employment case, and it is basically the same volleyball game described here, except the case is reviewed on papers handed in to the judge. The employee has to defeat the employer’s motion with his/her own arguments on the papers, or the case is dismissed and no trial is held.