Brian Flores’ Lawsuit Against the NFL: The Background, the Legal Claims, and the Next Steps

Former Miami Dolphins Head Coach Brian Flores sent shockwaves through the sports world when he filed a class-action lawsuit against the National Football League and its teams in February 2022. The 58-page lawsuit alleges discriminatory hiring practices throughout the league, with Flores specifically accusing the Denver Broncos and New York Giants of conducting “sham” head coach interviews with him merely to comply with the Rooney Rule.¹[1]Complaint at 139, 160, Flores v. The National Football League et al. (S.D.N.Y. 2022) (1:22-CV-00871) The suit also accuses Miami Dolphins owner Stephen Ross of offering Flores $100,000 per game to lose on purpose during the 2019 NFL season to improve the team’s draft position.²[2]Id. at 14. The league quickly released a statement, alleging these claims “without merit” and pledging to fight them.³[3]Marcel Louis-Jacques, Brian Flores sues NFL, three teams as former Miami Dolphins coach alleges racism in hiring practices. ESPN. (Feb. 1, 2022). https://www.espn.com/nfl/story/_/id/33194862/brian-flores-sues-nfl-others-former-miami-dolphins-coach-alleges-racism-hiring-practices The Denver Broncos, New York Giants, and Miami Dolphins all put out similar statements.⁴[4]Madeline Coleman, Broncos, Giants, Dolphins Release Statements in Response to Brian Flores Lawsuit. SI. (Feb. 1, 2022). https://www.si.com/nfl/2022/02/02/brian-flores-proposed-class-action-giants-broncos-and-dolphins-release-statements#:~:text=%E2%80%9CWe%20are%20pleased%20and%20confident,coach%20until%20the%20eleventh%20hour.

How Did We Get to this Point?

The Rooney Rule was adopted by the NFL in 2003 to address the lack of minorities in head coaching positions.⁵[5]NFL Football Operations, The Rooney Rule. NFL. (2022) https://operations.nfl.com/inside-football-ops/diversity-inclusion/the-rooney-rule/ The original Rooney Rule implemented in 2003, required every team with a head coaching vacancy to interview at least one or more diverse candidates.⁶[6]Id. Since then, the league has implemented changes to strengthen this rule. In 2021, the league approved changes to the Rooney Rule to require teams to interview at least two minority candidates from outside of their organization for head coaching positions and at least one external minority for an open coordinator job.⁷[7]Id. In 2009, the Rooney Rule was amended to include general manager jobs and front-office positions, with each team required to interview a minimum of two external minority candidates for any vacancy.⁸[8]Id. Even with these changes, the Rooney Rule has not resulted in a greater number of minorities in NFL head coaching positions.⁹[9]Jay Croft, The Rooney Rule requires the NFL to interview a diverse range of candidates. Flores says it’s a ‘well-intentioned failure’. CNN. (2022). https://www.cnn.com/2022/02/01/football/nfl-racism-lawsuit-rooney-rule-explainer/index.html Since the adoption of the Rooney Rule, only 11% of head coaching position have been filled by black candidates.¹⁰[10]Complaint at 110, Flores v. The National Football League. (S.D.N.Y. 2022) (1:22-CV-00871)

According to Statista, 57.5% of NFL players in 2020 were African American.¹¹[11]Christina Cough, Share of players in the NFL in 2020, by Ethnicity. STATISTA. (Mar. 16, 2021) https://www.statista.com/statistics/1167935/racial-diversity-nfl-players/ At the start of that same season, minorities made up just 12.5% of NFL head coaches.¹²[12]Pro Football Reference, 2020 NFL Coaches. PRO FOOTBALL REFERENCE (2022) https://www.pro-football-reference.com/years/2020/coaches.htm There were three black coaches, until two were fired after the 2021 season.¹³[13]Id. One of those coaches, David Culley, was fired by the Houston Texans after just one year on the job.¹⁴[14]Id. At the start of the offseason, there were nine NFL teams in need of a new head coach.¹⁵[15]ESPN Staff, NFL head-coach firings, hirings and openings: Latest news, rumors, and interview candidates on seven open jobs. ESPN (Jan. 27, 2022) https://www.espn.com/nfl/story/_/id/32917485/nfl-head-coach-firings-hirings-openings-latest-news-rumors-interview-candidates-jaguars-raiders-jobs All nine spots have been filled, but only two by minority candidates.¹⁶[16]Id.

What are the Allegations?

Brian Flores alleges that the Giants and Broncos held “sham” interviews with him.¹⁷[17]Complaint at 139, 160, Flores v. The National Football League et al. (S.D.N.Y. 2022) (1:22-CV-00871) Sham interviews are when minority coaches receive interviews only to fulfill the requirements of the Rooney Rule.¹⁸[18]Kevin Seifert, Brian Flores’ NFL Lawsuit: Can he prove systemic racism? What we know about claims of ‘sham interviews’ and incentivizing tanking, plus what’s next. ESPN. (Feb. 2, 2022). https://www.espn.com/nfl/story/_/id/33201180/brian-flores-nfl-lawsuit-prove-systemic-racism-know-claims-sham-interviews-incentivizing-tanking-plus-next Flores alleges that three days prior to his interview with the Giants, Bill Belichick, New England Patriots head coach, texted him congratulations on getting the job. Belichick apparently thought he was texting Brian Daboll, the offensive coordinator for the Buffalo Bills who actually got the job with the Giants.¹⁹[19]Complaint at 148, Flores v. The National Football League et al. (S.D.N.Y. 2022) (1:22-CV-00871) Despite Belichick’s apologies, Flores interpreted the text messages as establishing that the Giants had already made their head coach decision before Flores was even interviewed.²⁰[20]Id. at 148. In other words, Flores’ interview served no purpose other than satisfying the Rooney Rule because the Giants already knew they would not hire him.²¹[21]Id. at 20. Flores also alleges that his interview in 2019 with the Denver Broncos was equally a “sham.”²²[22]Id. at 21. He alleges that Broncos officials conducing the interview unprofessionally showed up late to the interview and appeared to have been “drinking heavily the night before,”²³[23]Id. which the Broncos deny.

Flores additionally alleges that Dolphins owner Stephen Ross offered to pay him $100,000 to lose games intentionally to secure the first overall pick in the NFL draft.²⁴[24]Id. at 14. Flores states that he refused Ross’s offer and said “ultimately, it was the reason why I was let go.”²⁵[25]Around the NFL Staff, Dolphins owner Stephen Ross responds to Brian Flores’ allegations, NFL’s expected investigation. NFL. (Feb. 3, 2022). https://www.nfl.com/news/dolphins-owner-stephen-ross-responds-to-brian-flores-allegations-nfl-s-expected-#:~:text=Speaking%20Wednesday%20on%20CBS%20Mornings,why%20I%20was%20let%20go.%22&text=Flores%20was%20fired%20last%20month,25%20record%20over%20three%2 Additionally, Flores claims that Ross wanted him to recruit a “prominent” quarterback who was under contract with another team, in violation of the NFL’s tampering rules.²⁶[26]Complaint at 15, Flores v. The National Football League et al. (S.D.N.Y. 2022) (1:22-CV-00871) Ross allegedly set up a meeting between Flores and the player on a boat, but Flores left before the player arrived.²⁷[27]Id.

What are the Legal Causes of Action?

The lawsuit, filed in the Southern District of New York, alleges that the NFL and its teams violated Section 1981 of the Civil Rights of 1866 Act, the New Jersey Law Against Discrimination (“NJLAD”), 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. Code §§ 8-101 et seq. (NYCHRL”).²⁸[28]Complaint at 24, Flores v. The National Football League et al. (S.D.N.Y. 2022) (1:22-CV-00871) These claims are brought on behalf of a proposed class of Black head coaches, offensive and defensive coordinators, quarterbacks coaches, general managers, and candidates for these positions. The lawsuit claims the NFL and its teams discriminated against class members by (i) denying them coaching and front office positions, (ii) subjecting them to sham and illegitimate interviews, (iii) subjecting them to unfair standards in retention and termination decisions, (iv) imposing disparate terms and conditions of employment that deprived them of opportunity and harmed their professional reputation and (v) paying unequal compensation relative to their white peers.²⁹[29]Id. at 243, 248, 253, 258

The Section 1981 claim, the New York State Human Rights Law, and the New Jersey Law Against Discrimination all are analyzed under the same framework. A plaintiff alleging discrimination in violation of these three statutes must establish that (1) he or she is a member of a protected class, (2) he or she was qualified to hold the position, (3) he or she suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination.³⁰[30]Fitzgerald v. Shore Memorial Hospital., 92 F.Supp.3d 214 (D.N.J. 2015); Hernandez v. The Office of Commissioner of Baseball et al., 18-CV-9035 (S.D.N.Y. 2021) Under the first prong, “protected class” refers to a group of people with a common characteristic who are legally protected from employment discrimination on the basis of that characteristic.³¹[31]Glossary, Protected Class. THOMSON REUTERS PRACTICAL LAW https://1.next.westlaw.com/5-501-5857?transitionType=Default&contextData=%28sc.Default%29 Flores and the proposed class are minorities and thus members of a protected class. Regarding the second prong, both sides will likely dispute whether Flores and the proposed class members were qualified to hold a position in question. Flores and any class members will need to point to their experience to show that they were equally or more qualified than those hired, and a court will need to infer discrimination on the part of the defendants.³²[32]Hernandez, 18-CV-9035. Under the third prong, to constitute an adverse employment action, an action must cause a materially adverse change in the terms and conditions of employment; to be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities.³³[33]O’Toole v. County of Orange, 255 F. Supp.3d 433 (S.D.N.Y. 2017) Courts have found a wide variety of employer actions that fit within this category, including a demotion evidenced by a decrease in salary, a less distinguished title, or diminished material responsibilities.³⁴[34]Caroline J. Berdzik, Christopher P. Maugans, Kristin Klein Wheaton. New York Court Rules on Adverse Action. GOLDBERG SEGALLA (Jan. 3, 2019) https://www.goldbergsegalla.com/news-and-knowledge/news/new-york-court-rules-on-adverse-action For the final prong, Flores and the proposed class will need to show that the adverse employment action such as a demotion or firing would give rise to an inference of racial discrimination.

The New York City Humans Right Law claim, “must be construed ‘independently and more liberally than” the 1981 claim.³⁵[35]Hernandez, 18-CV-9035. Under the NYCHRL framework, a plaintiff is required to introduce sufficient evidence to show an employer treated him “less well” and did so “at least in part for a discriminatory reason,” after which such employer must present “legitimate non-discriminatory motives to show the conduct was not caused by discrimination.”³⁶[36]Id. Flores will need to show evidence that he and the proposed class were treated worse than other coaches due to their race.

Where Does the Lawsuit Go from Here?

The NFL has time before they are required to formally respond to the lawsuit. The NFL will then likely file a motion to dismiss the suit. To survive the motion to dismiss, a judge will have to decide whether the allegations in the suit are merely speculative or show a plausible claim.³⁷[37]Fed. R. Civ. P. 12(b)(6). The statistical evidence of historical discriminatory hiring practices within the league might be enough to get the suit through the motion to dismiss. If the lawsuit survives the motion to dismiss, it will go to a discovery phase.

The NFL will almost certainly raise the defense that the suit cannot be processed in court and must be resolved via arbitration.³⁸[38]Mike Florio, Arbitration clause could quickly derail the Brian Flores Lawsuit. PRO FOOTBALL TALK. (Feb. 4, 2022). https://profootballtalk.nbcsports.com/2022/02/04/arbitration-clause-could-quickly-derail-the-brian-flores-lawsuit/ All NFL employment contracts require any dispute between coach and team to be resolved through arbitration rather than in court.³⁹[39]Id. For instance, the NFL filed a motion to compel arbitration in its legal battle with Jon Gruden.⁴⁰[40]Id. In the motion to compel arbitration, the NFL argued that “under the clear terms of Gruden’s employment contract and the NFL’s Constitution and Bylaws to which Gruden is bound, arbitration is the proper forum for resolution and an order should be issued to stay the action.”⁴¹[41]Id. Arbitration would remove the case from a public docket with public findings and public proceedings. Arbitration would significantly reduce discovery and would be a huge advantage for the NFL in this lawsuit. It would be a private tribunal with its own set of rules.

The Miami Dolphins have already requested an arbitration hearing in the Flores case.⁴²[42]Associated Press, Former Miami Dolphins coach Brian Flores asks NFL to deny team’s request for arbitration in his case alleging racist hiring practices. ESPN. (Mar. 9, 2022). https://www.espn.com/nfl/story/_/id/33462458/former-miami-dolphins-head-coach-brian-flores-asks-nfl-deny-team-request-arbitration-case-alleging-racist-hiring-practices Flores’ lawyer recently sent a letter to NFL Commissioner Roger Goodell, asking him to deny Miami’s request.⁴³[43]Id. Additionally, Flores spoke during a teleconference with lawmakers to speak in favor of the FAIR Act, which would prevent employers from hiding forced arbitration clauses in the fine print of employee paperwork and agreements.⁴⁴[44]Associated Press, Flores: Goodell Should Ensure Case Avoids Forced Arbitration, U.S. NEWS. (Mar. 14, 2022). He believes that Roger Goodell needs to allow the case to be decided by in court rather than by arbitration if there is to be real change.⁴⁵[45]Id. Although Flores claims he was not aware of the arbitration clause when he signed his contract with the Miami Dolphins, it has been standard NFL practice for decades and will be difficult to dodge.⁴⁶[46]Id.

Conclusion

Brian Flores is taking a stand and risking his career to create change. It is unclear what that change will look like. It is a good sign that despite the active lawsuit, the Pittsburgh Steelers recently hired Flores as a defensive assistant and linebackers coach.⁴⁷[47]Brooke Pryor, Former Miami Dolphins coach Brian Flores joins Pittsburgh Steelers as defensive assistant/LB coach. ESPN. (Feb. 19, 2022) https://www.espn.com/nfl/story/_/id/33328477/former-miami-dolphins-coach-brian-flores-joins-pittsburgh-steelers-senior-defensive-assistant-linebackers-coach A legal victory for the Flores class members might produce change, but that could be a long process. Further changes to the Rooney Rule are under consideration, as well as other measures to address the concerning lack of diversity at the head coaching position in the NFL. But the rule has not produced the change needed throughout the league. At a minimum, the Flores lawsuit has brought the issue of NFL coaching staff diversity back into the headlines and has the world talking.

Written by: Jared Wolff
Jared is a 2024 J.D. Candidate at Brooklyn Law School