Can the Brian Flores Lawsuit Survive an Early Attack from the NFL?

A Motion to Dismiss

This article will focus on the standard that Brian Flores and his legal team would have to meet to survive a potential ‘motion to dismiss’ by the NFL. A motion to dismiss is a legal tool used in litigation, available via the Federal Rules of Civil Procedure, that in relevant part would provide the NFL and the teams named in the lawsuit the ability to dismiss Flores’s claim before the bulk of the litigation process can even begin.

In legal terms, the NFL would be moving to dismiss Flores’s claims of discrimination[1], and a court would grant the motion if the factual allegations in the complaint that Flores filed failed to “state a claim to relief that is plausible on its face.” Essentially what this means is that the court would look at the legal claims for discrimination that Flores has made under federal, New York State, and New York City law and decide if the facts alleged in the complaint meet the minimum threshold for each statute.

The necessity to discuss a motion to dismiss arises out of the NFL’s immediate response to Flores’s allegations of discrimination.  On February 1st, the NFL released a statement that the claims of discrimination were ‘without merit.’[2]

Therefore, the logical first step in the litigation process for the NFL is to file a motion to dismiss for failure to state a claim.  If the NFL can show that Flores’s allegations are not supported by sufficient facts stated in the complaint, the motion to dismiss for failure to state a claim would be successful, and the court would dismiss the complaint, ending the lawsuit.

Based on the NFL’s response to the allegation, this exercise will be insightful as to whether Flores’s claims have a likelihood of surviving a motion to dismiss.  If Flores’s lawsuit does survive, then the case can proceed to discovery, where more facts can and will be disclosed.  With the potential consequences and impact of Flores’s groundbreaking allegations, the potential for more supporting facts to come to light further in the litigation process is very intriguing – and possibly damaging for the NFL.  This is especially true because the case has been filed as a class action, meaning that other potential plaintiffs could come forward with additional allegations and facts that would harm the NFL’s position.

Relevant Case Law

It can be difficult to really predict what will happen on a motion to dismiss in a case of this magnitude.  However, there are clues available in the form of relevant case law.  One case that should provide key insight into the standard that Flores’s legal team will need to meet in order to defeat a potential motion to dismiss is Green v. Jacob & Co. Watches, Inc., 248 F. Supp. 3d 458 (S.D.N.Y. 2017).

In Green, the Plaintiff was an African American employee at a jewelry store who alleged that he was subjected to racially disparaging comments, unwarranted criticism, threats of termination, and eventual termination all due to his race, among other allegations.

This case is extremely relevant to Flores’s case on a variety of levels.

1. It is a case involving racial discrimination in the form of derogatory comments and treatment of black employee(s) which ultimately led to termination (and subsequent replacement by white employees).

2. It arises under the exact same three statutes as Flores’s causes of action-

  • discrimination on the basis of race and/or color in violation of Section 1981 of the Civil Rights Act of 1866 (Section 1981),
  • the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. (“NYSHRL”), and;
  • the New York City Human Rights Law, N.Y.C. Admin. § § 8-101 Code et seq. (“NYCHRL). 
    • One of Flores’s causes of action also arose under a New Jersey civil rights statute that is not examined in this case.

3. The case was heard in the same federal court that Flores’s lawsuit was filed in, The Southern District of New York.

4.  This case was also a ‘motion to dismiss’ case, which means the standards that the court applied to the statutes and claims are directly relevant to the standards that Flores’s legal team must meet if the NFL were to move to dismiss.

Thus, the opinion of the court and the standards employed by the court in Green should provide precedent on whether Flores’s complaint would survive a motion to dismiss.

The Standards Used

In general, on a motion to dismiss in federal court, the court will give deference to the plaintiff and accept the factual allegations as true.  The Court is not, however, required to accept as true bare recitals of the elements of a cause of action, supported by mere conclusory statements.

This essentially means that a plaintiff’s attorney cannot simply look up the elements of a statute (civil rights statutes focused on racial discrimination in this case) and just re-state that all of those elements indeed occurred and were experienced by the plaintiff. There needs to be a showing of fact in the complaint that has elements of being plausible.  This can be a somewhat murky standard to follow.  Thankfully, it does seem to get a little clearer when applied to cases with similar fact patterns, as is the case with Green and Flores’s lawsuit.

The standard for surviving a motion to dismiss for discrimination claims under Section 1981 and NYSHRL set forth by the Court in Green are as follows:

“absent direct evidence of discrimination, what must be plausibly supported by facts alleged in the complaint is that the plaintiff is (1) a member of a protected class, (2) was qualified, (3) suffered an adverse employment action, and (4) has at least minimal support for the proposition that the employer was motivated by discriminatory intent.”

Again, this type of legal standard can be difficult to grasp without a specific set of facts to apply it to.  So, it is helpful to look to how the court applied this legal standard to Green’s specific set of circumstances to better understand how this same court may apply the standard to Flores and his allegations.

The two most important prongs to this standard are the ‘adverse employment action’ and the ‘motivated by discriminatory intent’ aspect. 

In Green, the court plainly concluded that termination sufficed as an adverse employment action.  However, acts that Green alleged, like being subjected to oppressive working conditions, being issued verbal and written warnings without cause, and being threatened with termination (among others) did NOT meet the standard and the court deemed them to not be more than a ‘mere inconvenience.’

The key here is that these actions towards employees must be accompanied by negative consequences, usually monetary or financial consequences like a demotion or being terminated.  The court broadly defines these actions as a “materially significant disadvantage” with respect to the plaintiff’s employment.

As for the ‘motivated by discriminatory intent’, the court in Green found that he had met his burden based on the allegations of the racist comments made to him by his employer.  Importantly, the court, and other cases it cited, gave further examples of what would satisfy this standard, including the more favorable treatment of employees not in the protected group and an employer replacing a terminated or demoted employee with an individual outside the employee’s protected class.  In this case, that would mean replacing Flores with a coach who is not a minority.

These two prongs of the standard will be pivotal for Flores and his legal term to meet in order to move forward with the lawsuit. As for the claim under NYCHRL, the court made it clear that claims arising under this statute are to be interpreted much more broadly and given much more leeway compared to the federal and state claims.  Thus, as Green satisfied his burden under the federal and state claims, he had no issues satisfying his burden for his claims under the New York City law.

Applying the Standard to the Flores Lawsuit

Both the federal claim under Section 1981 and the state claim under NYSHRL would be analyzed using the same standard, as above, on a motion to dismiss. 

The first prong of the standard, protected class, is clearly satisfied here as Flores and any other coach who could join this class would be African American or another minority.

An interesting piece here, however, is the ‘qualified person’ standard.  Clearly, Flores is more than qualified as he has already been an NFL head coach and amassed 24 wins over 3 seasons.  However, the intriguing aspect of this will be if the NFL attempts to argue that some other members of the class were NOT qualified and for that reason specifically, those coaching and GM candidates were not offered jobs in the past. That would certainly be a bold argument for the NFL to make, and one that could have impactful consequences. 

It is worth discussing, however, because an aspect of the argument that Flores is making revolves around the lack of opportunities for minority coaches at the position coach level and entry level front office or scouting positions- meaning, part of their argument is that the NFL is not providing enough opportunities for minority head coaches to even become qualified for head coaching and general manager positions in the first place.  Could this ultimately work against Flores’ claims if the NFL decides to attack this prong of the standard? It is possible; however, it is very likely that a court would determine that (especially) Flores and anyone else who joins the class is qualified.

The next question is whether Flores can satisfy the ‘adverse employment action’ prong of the standard.  It is already clear that a termination of employment would be a discriminatory employment practice.  However, Flores alleges multiple discriminatory employment actions by the NFL.

The allegations that there are a severe lack of minority head coaches and GMs, especially compared to the fact that the majority of NFL players are Black, could be seen as a materially significant disadvantage of employment. Does the fact that only 3% of head coaches and 19% of GMs in the NFL are minorities necessarily mean that the NFL and its teams were motivated by some discriminatory intent?

Well, at this stage, Flores doesn’t need to necessarily ‘prove’ that fact.  The court will look at the statistics laid out in his complaint and determine if Flores has any minimal or plausible support for the idea that the NFL has shown discriminatory intent in its hiring of minority coaches and GMs.

The obvious argument for the NFL against this discriminatory intent will be the Rooney Rule.  This could potentially be a very strong argument negating any inference of the necessary discriminatory intent.  However, the statistics put forth in the complaint are very telling and could go a long way to substantiate Flores’s argument.  The key here will be the consequences that minority coach and GM candidates have faced.  Because Flores is alleging discriminatory termination, and a lack of employment opportunities based on race, the financial consequences faced by minority candidates would be clear and would make for a pretty convincing argument for Flores.

Green also provided pivotal examples of how the ‘motivated by discriminatory intent’ prong can be satisfied by Flores at this stage of the litigation.  To satisfy this standard, Flores would need to allege that there has been more favorable treatment of employees not in the protected group and that the employers in the NFL have been replacing terminated or demoted minority employees with nonminority individuals.  It would seem that these issues would be extremely persuasive for Flores.  Throughout the complaint Flores alleges facts and statistics that are meant to show Black coaches are being fired prematurely or unfairly and are being replaced by White coaches.

Further, this provides another strong argument for Flores if the NFL attempts to rely on the Rooney Rule to negate discriminatory intent.  The complaint specifically alleges sham interviews for Black coaches, and specifically Flores, that were conducted only to satisfy the Rooney Rule with no true intention of the team hiring the coach.  Clearly, the complaint alleges facts that would support that these sham interviews to satisfy the Rooney Rule do not happen to White coaches.  Thus, the complaint would tend to show that there has been more favorable treatment to employees outside of the protected group.

Another interesting wrinkle to this revolves around the text exchange between Flores and Bill Belichick regarding the Giants head coaching interview.  It was this exchange that seemingly led Flores to file the lawsuit alleging that it was a sham interview (not his first alleged sham interview however).  What makes this interesting regarding the legal standard here again ties into the intent aspect.  The Giants have not only denied the allegations, but they have come out with a statement that clearly indicates their position that Belichick, head coach of the Patriots, in no way spoke for the organization or provided insight into their hiring process, i.e. their intent to host Flores for a sham interview solely to satisfy the Rooney Rule.[3] This could be a potentially compelling argument for the Giants’ position.

In sum, based on the relevant case law and the facts alleged in Flores’s suit, it would appear that Flores has brought forward enough facts to survive a motion to dismiss.  Again, it is important to remember that the court gives deferential treatment to plaintiffs at this early stage of litigation. However, Flores and the class being able to survive a motion to dismiss would move the litigation along to the discovery phase.  Based on the groundbreaking allegations contained in this complaint, the discovery phase will be very interesting to monitor as more and more facts are revealed.




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