Brian Flores Takes a Stand Against the NFL

Photo via: The Palm Beach Post

Brian Flores, former Miami Dolphins head coach, is taking action against the NFL’s longstanding diversity issues

Before I start, I want to say a few things.

I recently attended an event where John W. Marshall, son of the late-great first black Supreme Court Justice Thurgood Marshall, discussed growing up under the tutelage of Justice Marshall. In the discussion, John shared a story about himself in or around the mid 1980’s where he attempted to use a restroom — while in his full law enforcement uniform — and he was initially denied of using such because of the color of his skin. John later relayed the story to Justice Marshall, who told his son, that we ‘still have a lot of work to do.’ Today, in the year 2022, in a month where we celebrate Black-American culture, the message still rings abundantly true. We still have a lot of work to do.

Further, I had an amazing opportunity to listen and speak with another great Black-American leader — Jonathan Beane, Senior Vice President and Chief Diversity and Inclusion Officer of the National Football League (NFL). Mr. Beane and I spoke at length about revamping diversity, equity, and inclusion (DEI) in the NFL and the steps that the League is taking to promote such. The message that Mr. Beane conveyed to me that truly stood out is this:[1]

“Success looks like when our employee base at the clubs and at the League office looks like our fanbase. That is success from a diversity perspective,” Mr. Beane said. “When we have our employees at the club and League office role modeling inclusive behaviors on a daily basis, which ensures that we are being respectful of everyone and truly appreciating the value proposition of diversity and treating everyone with respect where we don’t have issues of harassment, discrimination and all of that, that’s what success looks like.”

Mr. Beane is doing a tremendous job. However, we ALL must do a tremendous job to make a change — that is on everyone from top to bottom in the NFL and in our society. Brian Flores, in his complaint (that we will be discussing), included this quote from Mr. Beane:[2]

“Any criticism we get for lack of representation at the GM and head coach positions, we deserve. We see that we’re not where we want to be. We have to do much better. We’re focusing on all roles at the league, and all these roles are key roles . . . But certainly, at the top of the house, general manager and head coach, that’s the responsibility of the NFL to make sure that we are representing our current fan base and we’re representing those that are in the league today. And if you look at it right now, we’re grossly underrepresented.”

Mr. Beane’s goal of diverse representation that emulates the NFL’s fan base is the same message that is at the crux of Flores’ complaint against the League.

I. Overview

On February 1, 2022, Brian Flores, as a class representative, filed a civil action against the NFL, the New York Giants, the Miami Dolphins, the Denver Broncos and the remaining 29 other teams in the League. The complaint alleges four causes of action: (1) discrimination under Section 1981; (2) discrimination under New York State Human Rights Law; (3) discrimination under New York City Human Rights Law; and (4) discrimination under New Jersey Law Against Discrimination. Further, within the complaint, Flores not only asserts the wrongful actions by the defendants upon himself, but he also discusses other black coaches and players, the League’s poor history with DEI, past and pending litigation, offers of bribery to intentionally lose games, tampering, and ineffective policies put in place by the League. Clearly, the complaint is the culmination of frustration because of discrimination.

II. Background

To understand the case, it is important to take a step back. Flores was recently fired by the Dolphins for alleged “poor collaboration” after spending three seasons as its head coach. Flores led the Dolphins to their first back-to-back winning seasons since 2003 — a firing that many in the League, media, and fans found peculiar. Nonetheless, because of Flores’ on-field success, he seemingly was (and still is) one of the “hottest” coaching names in the market for a vacant head coaching job.

Thereafter, the Giants pursued Flores, amongst other teams, and Flores, if hired, would be the Giants first black head coach in the team’s history. However, prior to his interview, Flores texted with New England Patriots’ head coach Bill Belichick. (Flores worked under Belichick prior to being hired in 2019 by the Dolphins.) Belichick congratulated Flores on being a shoe-in for the Giants job. The only problem is, Belichick erroneously texted Flores, rather than Brian Daboll — the now Giants head coach and former Buffalo Bills offensive coordinator. Flores, seemingly knowing something was wrong with the congratulations by Belichick, texted Belichick, asking him to clarify who Belichick believed he was texting. Belichick owned the mistake and apologized. Soon after, Flores still attended dinner with Giants newly hired General Manager, Joe Schoen and the next day, formally interviewed with the team. Flores believes the Giants only interviewed him to satisfy the “Rooney Rule”

However, as an aside, the Giants will likely defend against the accusation by saying Belichick in no way, shape, or form, is privy to the information regarding who their team. They recently released a statement regarding Flores’ allegations, [3]

“[Belichick] does not speak for and has no affiliation . . . [Belichick has] no insight into what actually transpired during our head coaching search.”

The Giants can also take the position that Belichick’s text was merely speculation and nothing more. Further, the Giants will likely argue that they were “fond” of Daboll, but that they had not made a definite choice, wanting to vet all options and interview Flores. The Giants can claim that Flores still was in the running for the position, but they ultimately chose Daboll. The Giants will argue that Flores, like all other candidates, had a fair chance at the position — but ultimately determined Daboll to be the most qualified for their vacancy.

IIII. Causes of Action

(1) Discrimination under Section 1981: derives from Section 1 of the 1866 Civil Rights Act[4] and guarantees the following rights, “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

To establish a claim under such, a person must establish facts in support of the following elements: (i) the plaintiff is a member of a racial minority; (ii) there was an intent to discriminate on the basis of race by the defendant; and (iii) the discrimination concerned one or more activities enumerated in the statute.[5]

(2) Discrimination under NYSHRL: derives from Section 290 from Article 15[6] and in pertinent part reads, “[t]he opportunity to obtain employment without discrimination because of age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, marital status, or disability, is hereby recognized as and declared to be a civil right.”

To establish a claim under such, a person must establish facts in support of the following elements: (i) they are a member of a protected class; (ii) they are qualified for the position sought; (iii) they were denied the position; and (iv) the circumstances of the denial give rise to an inference of discrimination.[7]

(3) Discrimination under NYCHRL: Tittle 8 Chapter 101 and in pertinent part reads, “[t]he council hereby finds and declares that prejudice, intolerance, bigotry, and discrimination, bias-related violence or harassment and disorder occasioned thereby threaten the rights and proper privileges of its inhabitants and menace the institutions and foundation of a free democratic state . . . A city agency is hereby created with power to eliminate and prevent discrimination from playing any role in actions relating to employment . . . and to take other actions against prejudice, intolerance, bigotry, discrimination, sexual harassment and bias-related violence or harassment as herein provided; and the commission established hereunder is hereby given general jurisdiction and power for such purposes.

To establish a claim under such, a person must establish facts in support of the following elements: (i) they are a member of a protected class; (ii) they were qualified to hold her position; (iii) they were terminated from employment or suffered an adverse employment action; and (iv) the adverse action occurred under circumstances giving rise to an inference of discrimination.[8]

(4) Discrimination under NJLAD: reads in pertinent part, “prohibits discrimination and harassment based on actual or perceived race, religion, national origin, gender, sexual orientation, gender identity or expression, disability, and other protected characteristics”[9]

To establish a claim under such, a person must establish facts in support of the following elements: (i) they are a member of a protected class; (ii) they are qualified for the position; (iii) they suffered an adverse employment action; (iv) under circumstances giving rise to an inference of unlawful discrimination.[10]

Both the language and the elements to establish each claim are similar, with slight differences. For each cause of action, Flores laid out the foundation establishing the elements and citing discrimination, sham interviews, wrongful termination and so forth. It will be up to the NFL to answer each cause of action in an attempt to craft a motion to dismiss (which will be touched upon later).

IV. The Rooney Rule

The Rooney Rule, a League policy effectuated in 2003, requires teams to interview at least one minority candidate for a head coaching vacancy. Today, the Rule has expanded to teams being required to interview two minority candidates (at least one must be in person) and to cover front office, assistant coaching, and coordinator vacancies.

However, the NFL has been criticized for its inconsistent application of League policies and rules. The League has experienced backlash for seemingly only following its rules when it is in their favor. If there is a policy in place that restricts what the League desires to do, they will ultimately disregard it, i.e. the St. Louis v. NFL relocation lawsuit.[11]

The NFL and Rams owner Stan Kroenke settled with the City of St. Louis for $790 million, after a tumultuous lawsuit in which the NFL and Kroenke took the position that the NFL Relocation Policy was simply “advisory”, and not proscriptive. It remains to be seen if a similar position will be taken with regard to the Rooney Rule. In any event, it is to be anticipated that the NFL will seek to settle this case out of court, perhaps using arbitration in an attempt to ensure no information is leaked to the public that can be further disparaging for the League, its owners, and Commissioner Roger Goodell. After Flores’ lawsuit initially broke headlines, the NFL released a statement saying:

”The NFL and our clubs are deeply committed to ensuring equitable employment practices and continue to make progress in providing equitable opportunities throughout our organizations. Diversity is core to everything we do, and there are few issues on which our clubs and our internal leadership team spend more time. We will defend against these claims, which are without merit.”

Despite the NFL’s initial stance, on February 5, 2022, Commissioner Goodell sent a memo to all clubs acknowledging Flores’s claims and saying in part,[12]

“Racism and any form of discrimination is contrary to the NFL’s values. We have made significant efforts to promote diversity and adopted numerous policies and programs which have produced positive change in many areas, however we must acknowledge that particularly with respect to head coach the results have been unacceptable. We will reevaluate and examine all policies, guidelines and initiatives relating to diversity, equity and inclusion, including as they relate to gender. We are retaining outside experts to assist in this review and will also solicit input from current and former players and coaches, advocates and other authorities in this area.”

With a pending lawsuit, it will be interesting to see how Flores’s legal team uses this statement to their advantage — a purportedly direct contradiction to the NFL’s prior statement on the lawsuit.

V. Other Background Allegations and Possible Defenses

In addition to the discrimination claims, Flores alleges a few more key items: (1) Dolphins’ owner Stephen Ross offered Flores $100,000 per loss for Flores to intentionally lose games, to “tank”; (2) Ross pressured Flores to tamper with an unnamed, soon to be free agent, prominent quarterback (3) a “sham” interview conducted by the Broncos; (4) inherent, historic racism within the NFL; (5) concussion discrimination with the NFL’s Concussion Settlement Agreement (the NFL agreed to end the race-based brain testing in a $1 billion settlement in 2021[13]); and more.

Ross categorically denied all wrongful doing.[14] The Broncos and John Elway did the same — calling the allegations ‘false and defamatory.’[15] The evidence to prove such accusations will be difficult for Flores — with likely little to no cooperation from any outside party.

To touch on the inherent, historic racism in the NFL, numbers will suffice for now (as the case evolves, we can dive deeper into this matter), and likely be heavy relied upon in the case by both parties — they are as follows:[16]

there are 32 NFL owners; none black;
70% of NFL players are black;
only 2 of the NFL’s 32 teams (6%) employs a black head coach;
only 4 of the NFL’s 32 teams (12%) employ a black offensive coordinator;
only 11 of the NFL’s 32 teams (34%) employ a black defensive coordinator;
only 8 of the NFL’s 32 teams (25%) employ a black special team coordinator;
only 3 of the NFL’s 32 teams (9%) employ a black quarterback coach; and
only 6 of the NFL’s 32 teams (19%) employ a black general manager.

However, the League will likely use the same numbers and expand on them. There are two minority (not including minority share) owners, Kim Pegula (Buffalo Bills) and Shahid Khan (Jacksonville Jaguars). Aside from there being only two black head coach (the Houston Texans recently hired Lovie Smith), there are three other minority head coaches, Ron Rivera (Washington Commanders),Robert Saleh (New York Jets) and the new Dolphins head coach, Mike McDaniel, who identifies as multi-racial. As far as the rest of the numbers go, they are either unchanged or too expansive to truly tell without a full team by team analysis of each staff member.

VI. Motion to Dismiss and Possible Gambling Implications

This is part one of a three-part series. Be on the lookout for the ensuing discussions in parts two and three that will touch on the NFL’s attempt at a motion to dismiss[17] and the accusation by Flores that Ross offered him money to intentionally lose games — another possible class action lawsuit.

Importantly, in the same memo Goodell addressed the racial aspect of Flores’ suit, Goodell had this to say concerning the pay-for-loss accusation,

“We also take seriously any issue relating to the integrity of NFL games,” the league memo said. “These matters will be reviewed thoroughly and independently. We expect that these independent experts will receive full cooperation from everyone associated with the league or any member club as this work proceeds.”

Further, an unnamed witness allegedly heard Ross offer Flores money in exchange for losing. If the accusations are found to be true, NFL discipline will surely result.

VII. Arbitration Effort

The NFL, along with the rest of the defendants will certainly be advocating to resolve the Flores matter in arbitration. In most (if not all) NFL contracts, there is language to move any disputes to arbitration. As Pro Football Talk[18] points out from another head coach’s contract,

“[Coach] agrees that . . . all matters in dispute between [Coach] and Club, including without limitation any dispute arising from the terms of this Agreement, shall be referred to the NFL Commissioner or a Commissioner-appointed representative for the NFL for binding arbitration, and the decision shall be accepted as final, conclusive and unappealable.”

However, there is a possible way around this clause. Flores may be able to separate each party and argue the arbitration clause only applies to the Dolphins and thereafter, the NFL and the remaining teams will still be subject to the court process. The NFL and former Las Vegas Raiders head coach John Gruden[19] are currently going through a similar venue dispute.[20]

Gruden and Flores’s lawsuits will be tied at the hip — Gruden, fired after messages involving racism and misogyny, amongst other things, and Flores, fighting against the very same racial issues that Gruden was fired for. If either one of these cases circumvent arbitration and can be heard in court, the NFL may attempt, in the same way it handled both the St. Louis litigation and Colin Kaepernick’s own lawsuit against the racial oligarchy that plagues the NFL.[21]

VIII. Outlook

Flores is a pioneer. He is strong and he is making a sacrifice — putting other coaching opportunities in jeopardy to fight for a cause that he believes in. It takes a strong will to set aside and possibly sacrifice your future to make a better one for everyone who comes after. Flores may not win the lawsuit — it may be dismissed, or forced into arbitration, or he may be prompted to settle — however, the first day of February in 2022 may be the beginning of a long and overdue overhaul of the NFL and the start of true equality for all minorities.

Flores is the embodiment of Justice Marshall’s words, ‘we still have a lot of work to do’ and we still are fighting for the equality that everyone deserves and so many have been unjustifiably damaged by.

[1] https://ublawsportsforum.com/2021/12/05/ub-alum-jonathan-beane-is-using-passion-and-service-to-revamp-nfl-dei/

[2] https://www.wigdorlaw.com/wp-content/uploads/2022/02/Complaint-against-National-Football-League-et-al-Filed.pdf

[3] https://www.nfl.com/news/giants-say-allegations-made-by-brian-flores-are-disturbing-and-simply-false#:~:text=Around%20the%20NFL-,Giants%20say%20allegations%20made%20by,are%20’disturbing%20and%20simply%20false’&text=The%20New%20York%20Giants%20issued,are%20disturbing%20and%20simply%20false.%22

[4] https://loveman.sdsu.edu/docs/1866FirstCivilRightsAct.pdf

[5]https://www.westlaw.com/Document/I824d54a8541611d9b17ee4cdc604a702/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

[6] https://dhr.ny.gov/sites/default/files/doc/HRL.pdf

[7]https://www.westlaw.com/Document/I33d15fb06c8111e7bcf2cc0f37ee205d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

[8]https://www.westlaw.com/Document/Ib324ba96a2c311e7b92bf4314c15140f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

[9] https://www.nj.gov/oag/dcr/downloads/fact_LAD.pdf

[10]https://www.westlaw.com/Document/Ic18c6789cc3e11e490d4edf60ce7d742/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

[11] https://ublawsportsforum.com/2021/11/23/kroenke-looks-to-settle-without-the-nfl/

[12] https://twitter.com/AdamSchefter/status/1489985648853405703/photo/1