Jim Trotter’s Employment Discrimination Suit Against the NFL Settles

Earlier this month, former NFL reporter Jim Trotter reached an out of court settlement with the NFL regarding his claim of employment discrimination. In September of 2023, Trotter filed a complaint in federal court alleging that his contract with the NFL was not renewed in retalaition for his critical reporting on the NFL’s track record with race. Trotter also alleged that he was subject to a hostile work enviornment with the NFL. Trotter, who is Black, claimed that his contract was not renewed because he “repeatedly spoke out against the NFL’s lack of diversity in its offices, coaching ranks, and media arm [i.e., “NFL Media”].”[1] Trotter previously worked for NFL Media from 2018 to 2023, and is now a columnist for The Athletic.[2] Trotter maintained that the non-renewal of his contract was unlawful retaliation, i.e., he claims that his speaking out these issues were “protected activity” under anti-discrimination laws.

According to Sportico Legal Analyst and Senior Sports Legal Reporter, Michael McCann, (who is also a Professor of Law at the University of New Hampshire – Franklin Pierce School of Law) “Trotter’s situation highlighted the sometimes-conflicting work environment for sports journalists and broadcasters who are employed by leagues they write about.”[3] Specifically, McCann stated that journalists are “not public relations representatives or spokespersons who are paid to push a company line. But if league-employed journalists [do in-fact] criticize the league—their employer—they do so with employment risk.”[4]

The following are some of the allegations in Trotter’s complaint:

1. The NFL has proactively “swept under the rug,” many racially insensitive comments made by team owners regarding Black individuals associated with the League. Specifically, Trotter referred to Buffalo Bills owner, Terry Pegula, who told an unnamed NFL Media reporter in 2020: “If the Black players don’t like it here, they should go back to Africa and see how bad it is.”[6] (emphasis added). Trotter also claimed that Dallas Cowboys owner, Jerry Jones, once said to him – regarding the lack of diversity in the upper ranks of NFL front offices – that: “If Blacks feel some kind of way, they should buy their own team and hire who they want to hire.”[7] (emphasis added).
2. During the 2022 Super Bowl, Trotter asked NFL Commissioner Roger Goodell the following question: “So as a member of the media group, and as a Black man, I ask, why does the NFL and its owners have such a difficult time at the highest levels hiring Black people into decision-making positions?”[8] (emphasis added).
3. During the 2023 Super Bowl, Trotter asked Commissioner Goodell the following question: “I would ask you as an employee, when are we in the newsroom going to have a Black person in senior management, and when will we have a full-time Black employee on the news desk?”[9] (emphasis added).

Trotter’s two specific questions directed towards Commissioner Goodell, may be considered to be “protected activity in his role as an NFL employee.”[10] Accordingly, the Equal Opportunity Commission (“EEOC”) defines “protected activity” as “either particpating in an EEO [i.e., Equal Employment Opportunity] process or reasonably opposing conduct made unlawful by an EEO law.” [11] Moreover, in the retaliation context, the EEOC states that it is unlawful to retaliate against an applicant or employee for:

1. Complaining or threatening to complain about alleged discrimination against oneself or others;
2. Providing information in an employer’s internal investigation of an EEO matter;
3. Refusing to obey an order reasonably believed to be discriminatory;
4. Advising an employer on EEO compliance;
5. Resisting sexual advances or intervening to protect others;
6. Passive resistance (allowing others to express opposition);
7. Requesting reasonable accommodation for disability or religion;
8. Complaining to management about EEO-related compensation disparities; or
9. Talking to coworkers to gather information or evidence in support of a potential EEO claim. [12]

Thus, based on the above definition, protected activity exercised by employees has the ability to take many forms, i.e., “challeng[ing], oppos[ing] or protest[ing] an employment practice on belief it is violating anti-discrimination laws.”[13] (emphasis added). Yet, in the case at hand, despite the NFL repeatedly denying Trotter’s accusations of employment discrimination – insisting that “his departure from league employment was [purely] a business decision” (rather than a racial decision) – Trotter held firm with his beliefs and progressed on with his lawsuit. (emphasis added).[14]

Presently – after over a year of litigation – the NFL and Trotter were able to reach a settlement agreement. But it is important to note that before the settlement agreement was reached, this past May, “U.S. District Judge Jed Rakoff advanced Trotter’s retaliation claim under Section 1981 of the Civil Rights Act of 1866 while dismissing five other claims.”

Accordingly, Section 1981 of the Civil Rights Act is:

A federal law prohibiting discrimination on the basis of race, color, and ethnicity when making and enforcing contracts. Section 1981 specifically grants all individuals within the US jurisdiction the same rights and benefits as ‘enjoyed by white citizens’ regarding contractual relationships (42 U.S.C. § 1981(a)). Courts have interpreted Section 1981 to apply to the employment context, including at-will employment and the independent contractor relationship. Section 1981 also prohibits retaliation. It does not prohibit discrimination on the basis of any other protected class.

Section 1981 applies to all private employers and labor organizations, but does not apply to discrimination by the US federal government as an employer. It also does not apply to state or local government employers.

Section 1981 does not require an individual to exhaust administrative remedies by filing a charge before any government agency and waiting for that charge to be adjudicated or released before proceeding to court.

There is no damages cap under Section 1981.[15]

When applying Section 1981 to the case at hand, it is important to note the following:

1. Trotter claimed that he was discriminated against based on his “race, color, and ethnicity” (i.e., being Black) when wanting to renew his contractual relationship with NFL Media.[16]
2. Trotter was an “at-will employee” as opposed to being an “independent contractor,” but the distinction between the two types of workers does not matter for a Section 1981 analysis.[17]
3. NFL Media is a private employer as opposed to a public employer (i.e., the U.S. federal government, or state/local governments).[18]
4. It is not known if Trotter “exhaust[ed] administrative remedies by filing a charge before any government agency and wait[ed] for that charge to be adjudicated or released before proceeding to court,” but this once again does not matter for a Section 1981 analysis.[19]
5. Trotter could allege any amount of damages, because “[t]here is no damages cap under Section 1981.”[20]

As a result of the settlement agreement, Trotter released a statement on his X/Twitter account stating that he “will be creating a scholarship foundation for students at HBCUs [i.e., Historically Black Colleges and Universities] and the NFL has agreed to make a donation in support thereof.”[21] Trotter further went on to state that he is “proud to have the opportunity to help and support HBCU students achieve their goals and dreams . . . .”[22] Hopefully, this case will finally be the turning point for the NFL to change for the better, and implement practices and policies to prevent such situations from ever happening again.

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[1] Schiffer, Alex, Jim Trotter, NFL Settle Racial Discrimination Lawsuit, Front Office Sports (October 9, 2024) https://frontofficesports.com/jim-trotter-nfl-media-lawsuit/.

[2] McCann, Michael, NFL Reporter Trotter Settles Retaliation Lawsuit with League, Sportico (October 9, 2024) https://www.sportico.com/law/analysis/2024/jim-trotter-nfl-settlement-1234800476/.

[3] Id.

[4] Id.

[5] Id.

[6] Supra note 1. Additionally, it should be noted that Terry Pegula has denied making this comment. https://www.theguardian.com/sport/2023/sep/12/bills-owner-pegula-denies-he-said-black-players-should-go-back-to-africa.

[7] Supra note 1.

[8] Supra note 2.

[9] Id.

[10] Id.

[11] Equal Employment Opportunity Commission, Questions and Answers: Enforcement Guidance on Retaliation and Related Issues, https://www.eeoc.gov/laws/guidance/questions-and-answers-enforcement-guidance-retaliation-and-related-issues.

[12] Id.

[13] Supra note 2.

[14] Id.

[15] Section 1981 of the Civil Rights Act of 1866. https://content.next.westlaw.com/practical-law/document/I0f9fc015ef0811e28578f7ccc38dcbee/Section-1981-of-the-Civil-Rights-Act-of-1866-Section-1981?viewType=FullText&transitionType=Default&contextData=(sc.Default)#:~:text=Section%201981%20of%20the%20Civil%20Rights%20Act%20of%201866%20(Section%201981),-A%20federal%20law&text=Section%201981%20specifically%20grants%20all,and%20Section%201981%20Comparison%20Chart.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Trotter, Jim, X/Twitter account statement, https://x.com/JimTrotter_NFL/status/1844015553306104166?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1844015553306104166%7Ctwgr%5E518555a82ec2b1665ffaff415810d782c82b4876%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.nytimes.com%2Fathletic%2F5831176%2F2024%2F10%2F09%2Fnfl-jim-trotter-lawsuit-settlement%2F.

[22] Id.