BFV Perspectives, Sports Fans Guide 2 HR, | Feb 16, 2022

A Lesson from the NFL Race Discrimination Lawsuit

If you watched the Super Bowl coverage you are probably well aware of the lawsuit former Miami Dolphins head coach Brian Flores filed against the NFL alleging race discrimination. As I wrote in a blog days after Flores’ termination, the Dolphins’ decision was somewhat surprising given the Dolphins won eight of their last nine games and the team seemed to be moving in the right direction. I cautioned that there are potential legal ramifications when employers blindside employees with terminations.

Sure enough, just a few weeks after his termination, Coach Flores filed a class action lawsuit accusing the Miami Dolphins, the NFL and its teams of systemic race discrimination.  Sports is said to be a metaphor for life.  Flores’ lawsuit is certainly a matter that transcends sport.

Nature of the Lawsuit: Race Discrimination
The 57-page class action lawsuit alleges race discrimination against the NFL, the New York Giants, Miami Dolphins, Denver Broncos and the rest of the NFL teams in violation of federal law and the New York State Human Rights Law.  Flores seeks to represent Black coaches and general managers allegedly overlooked in the hiring process based on race.

The lawsuit was triggered when Flores learned through a mistaken text message from New England Patriots Coach Bill Bellichek, that the New York Giants had hired a new head coach, Brian Daboll who is white, three days before Flores was scheduled to interview for the job.

Flores was led to believe that he was a leading candidate for the head coach job.  Flores concluded that the interview was a sham designed solely to comply with an NFL mandate – called the Rooney Rule – that every team must interview at least one minority candidate in person for a head coach position.

The Rooney Rule
Much of the focus of the lawsuit and league criticism surrounds the Rooney Rule.  The NFL implemented the Rooney Rule nearly 20 years ago to address the lack of Black head coaches in the NFL.  The current Rooney rule requires that NFL teams interview at least two external candidates from historically excluded groups for every head coach opening and one from those groups for all coordinator, senior football operations and general manager positions. At least one of the interviews must be in person.

There is no dispute that that the Rooney Rule was and remains well intentioned.  However, the hiring data over the past 20, coupled by Flores’ claim of a sham interview, raises serious questions about whether the rule is effective.

NFL Commissioner Roger Goodell denies the complaint allegations, but has stated publicly that the NFL is going to step back, look at everything the league is doing, and reevaluate “Everything from looking at the Rooney Rule and seeing what changes should be made to that, if any changes. Or should it be removed, which some people have suggested.”

Cyrus Mehri, a civil rights lawyer who was instrumental in creating the Rooney Rule, has long advocated and continues to push for the Rooney Rule to be strengthened as opposed to being abandoned. Mehri maintains that that the Rooney Rule’s efficacy depends on both implementation and enforcement.

HR Lesson:  Rules Are Not Enough
There is little doubt that if the Flores lawsuit progresses, new evidence will raise a plethora of issues and questions about the NFL’s rules and the hiring policies and practices of its 32 teams. At this early stage, however, an important human resource lesson can already be gleaned from the complaint and the Rooney Rule, in particular:

Having policies alone is not enough to ensure compliance. To be effective, it is important for employers to educate their management team about the rules and the consequences for violating them.

Andrew Brandt, executive director of the Moorad Center for the Study of Sports Law at Villanova University, featured columnist for both Sports Illustrated and The Athletic, and former Green Bay Packer Executive, recently wrote that when the Rooney Rule was established in the early 2000s the Packers  were simply told by the league that when interviewing for the head coaching position, a minority applicant must be included. In his words, there were no guidelines about the ‘seriousness’ of that interview.

Education and training is, therefore essential. You cannot expect to roll out a rule or policy and expect it be understood or followed without education and training.  This applies not only to hiring practices, but also to sexual harassment policies, confidentiality and trade secret policies, and any other work rules.

Consistent enforcement of the rule is also critical. Mehri was spot on when he acknowledged the Rooney’s Rule’s efficacy depends on implementation and enforcement. Individuals who do not wish to comply with a rule will ignore it if there is no or little risk of accountability. Inconsistent enforcement can also lead to claims of discrimination by employees who feel targeted and singled out.

The NFL season was filled with lots of on-field drama even up to the final play of the Super Bowl. We can expect a lot of drama to continue outside the lines this offseason as the NFL responds to the race discrimination lawsuit and addresses the future of the Rooney Rule.  Now is a good time for employers to review their key policies and determine if changes need to be made as to the policy and/or enforcement of the policies.

As always, please let me know if I can help.

BFV Perspectives, Sports Fans Guide 2 HR, | Feb 16, 2022
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.