by Agent 86 » Fri Feb 04, 2022 11:16 am
Lengthy article from the Athletic but if you want to get a sense from the legal side it's a good read.....
Analysis: Brian Flores faces hurdles in NFL case but may create transparency in NFL hiring
By Alicia Jessop Feb 2, 2022
On the first day of Black History Month, former NFL head coach Brian Flores filed a lawsuit against the league and three teams that could reshape and bring transparency to the the NFL’s hiring practices.
The lawsuit filed in federal court against the NFL, Miami Dolphins, New York Giants and Denver Broncos alleges violations of federal, state and city discrimination laws stemming from Flores’ termination as the head coach of the Dolphins and recruitment as a participant in allegedly sham head coaching interviews by the Giants and Broncos.
Under federal law, Flores alleges that the defendants violated Section 1981 of the Civil Rights Act of 1866. The Civil Rights Act of 1866 was enacted by Congress to ensure U.S. citizenship to formerly enslaved people and protect their ability to enforce contracts. Today, Section 1981 makes it illegal for a non-government party, like the NFL and its teams, to intentionally discriminate against an individual in making and enforcing a contract.
Flores indicated that he will file a claim under a second federal law, Title VII of the Civil Rights Act of 1964. Title VII makes it illegal for an employer to discriminate against employees who are members of protected classes. Race is a protected class under the law. Title VII is broader in its protections than Section 1981 of the Civil Rights Act, as plaintiffs can bring cases alleging both intentional employment discrimination and disparate impact discrimination. Under a disparate impact claim, a plaintiff alleges that an employment practice exists that on its face is neutral, but in practice, more harshly impacts members of a protected class.
One place in which Flores’ lawsuit touches on disparate impact is in alleging that a small minority of all NFL head coaches, quarterback coaches and offensive and defensive coordinators are Black. Yet Flores alleges that a pipeline exists across all of the positions, such as where quarterback coaches are promoted to offensive coordinators and coordinators are promoted to head coaches. If NFL teams have a practice of hiring head coaches from these pipelines, and if Black coaches are disproportionately held out from accessing said pipelines, a Title VII disparate impact claim could be shown.
However, employers possess a critical Title VII defense. Namely, employers can defend against a Title VII disparate impact claim by asserting that even if a facially neutral employment practice falls more harshly on a protected class of people, the employment practice is necessary for business reasons. In this instance, the NFL would likely argue that experience as a quarterback coach is necessary to become an offensive coordinator, or that experience in either coordinator role is necessary to become a head coach. However, that individuals who do not possess these experiences have been hired into the role of head coach may cut into both Flores’ claim and the NFL’s subsequent defense.
To bring a claim under Title VII, one must first file a charge with the U.S. Equal Employment Opportunity Commission. Given the statements made in the lawsuit’s pleading, Flores’ attorneys will likely file the charge soon.
Along with the federal claims, Flores’ lawsuit alleges that the New Jersey Law Against Discrimination, New York State Human Rights Law and New York City Human Rights Law were violated. The New Jersey Law Against Discrimination makes it illegal to discriminate on the basis of race in employment settings. The New York State Human Rights Law creates a civil right in the state to obtain employment without discrimination because of race. The New York City Human Rights Law makes racial discrimination in employment settings illegal in the city. It can be assumed that these claims were included in the lawsuit as the NFL is headquartered in New York and the Giants’ location is in New Jersey. If other teams are added to the lawsuit, which is plausible as more plaintiffs join the case, the pleading could be amended to include claims alleging violations of other relevant states’ anti-discrimination and human rights statutes.
In response to the lawsuit, the NFL issued a statement reading, “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.”
Flores’ lawsuit marks the first time that a former NFL head coach has challenged the efficacy of the NFL’s diverse hiring practices under the Rooney Rule in the court system. Enacted in 2003 in response to outcry over the firing of and overall paltry number of Black NFL head coaches, the Rooney Rule initially required NFL teams to interview at least one diverse candidate for every head coaching position. The rule has since been expanded to require teams to interview at least two diverse candidates for head coaching positions, with one interview being in-person. Teams must also abide by the rule for other critical hirings, including the positions of general manager, assistant head coach and both coordinator positions.
As Black head coaching candidates with lengthy résumés, Super Bowl wins and winning records have been passed over for NFL head coaching positions, questions have lingered over whether the Rooney Rule is enough to cure the NFL’s racial hiring and promotion divide. According to Flores’ lawsuit, only 15 Black head coaches have been hired since the Rooney Rule’s adoption to fill approximately 129 head coaching openings. Presently, only one NFL head coach is Black. Some argue that a lawsuit was necessary to drive meaningful change to the NFL’s hiring practices.
“I have said, especially after the last hiring season and in the midst of this one, that it is going to take a lawsuit or legislative action to change things,” said Kenneth Shropshire, CEO of the Global Sport Institute at Arizona State University and an attorney. “I had no optimism about either happening. For the individual who brings the lawsuit, it could potentially be career ending. I also don’t know how you legislate around this.”
Presently, Flores is the only named plaintiff in the case.
Shropshire argues Flores was brave not only in being the first coach to challenge the NFL’s hiring practices in court, but in how he structured the case. The pleading begins with a quote from Dr. Martin Luther King, Jr., reading, “Morals cannot be legislated, but behavior can be regulated. The law cannot make an employer love me, but it can keep him from refusing to hire me because of the color of my skin.”
Two pages into the complaint, Flores alleges, “In certain critical ways, the NFL is racially segregated and is managed much like a plantation. Its 32 owners — none of whom are Black — profit substantially from the labor of NFL players, 70% of whom are Black. The owners watch the games from atop NFL stadiums in their luxury boxes, while their majority Black workforce put their bodies on the line every Sunday, taking vicious hits and suffering debilitating injuries to their bodies and their brains while the NFL and its owners reap billions of dollars.”
“He could have filed a form complaint,” Shropshire said. “But as you read it, you realize that is not what he did. It really is an, ‘Oh, you don’t think I’m serious? Let me show you how serious I am’ complaint. In the wake of Colin Kaepernick being blackballed for speaking up against an issue that was outside of the league, Flores is saying, ‘I am standing up against issues taking place inside of the league, and despite knowing of the culture of blackballing, I am standing up nonetheless.'”
Flores seeks certification of the case by the court as a class action. He estimates that 40 class members exist, including all Black head coaches, offensive and defensive coordinators, general managers and candidates for those positions during the relevant time period. It is probable that the NFL and other defendants will object to the certification of the case as a class action in an attempt to narrow the scope and possible damages of the case.
Historically, employment law cases can present uphill battles for plaintiffs.
“Flores will face the same hurdles that typical plaintiffs in employment discrimination cases face,” said Tan T. Boston, a visiting assistant professor at the University of Dayton School of Law and an attorney. “He will be required to provide evidence of the disparate treatment that he is alleging with respect to the terms and conditions of employment in the NFL. For example, coaches’ team records are public information, but team records alone are not always decisive in making personnel decisions. Issues regarding past employee discipline, team/workplace culture, and many other factors that are not publicly available may influence personnel decisions. And often times, employees are disadvantaged with respect to having the same level of knowledge or information that employers possess on personnel decisions, due to employee confidentiality policies.
“Gaining access to the relevant hiring files and employment terms of the relevant employees prior to discovery will be a challenge. This challenge will be exacerbated by the large number of team employers that fall under the NFL’s umbrella.”
After a request for comment, the Denver Broncos responded with a statement that read: “The allegations from Brian Flores directed toward the Denver Broncos in today’s court filing are blatantly false.
“Our interview with Mr. Flores regarding our head coaching position began promptly at the scheduled time of 7:30 a.m. on Jan. 5, 2019, in a Providence, R.I., hotel. There were five Broncos executives present for the interview, which lasted approximately three-and-a-half hours—the fully allotted time—and concluded shortly before 11 a.m.
“Pages of detailed notes, analysis and evaluations from our interview demonstrate the depth of our conversation and sincere interest in Mr. Flores as a head coaching candidate.
“Our process was thorough and fair to determine the most qualified candidate for our head coaching position. The Broncos will vigorously defend the integrity and values of our organization—and its employees—from such baseless and disparaging claims.”
The Miami Dolphins responded to a request for comment with this statement: “We are aware of the lawsuit through the media reports that came out this afternoon. We vehemently deny any allegations of racial discrimination and are proud of the diversity and inclusion throughout our organization. The implication that we acted in a manner inconsistent with the integrity of the game is incorrect. We will be withholding further comment on the lawsuit at this time.”
A request for comment from the New York Giants was not immediately returned.
Regardless of the outcome of the case, one positive for Flores and others who alleged they have been discriminated against by the NFL in its hiring process is that if the case moves into the discovery phase, the plaintiffs will likely be able to gain access to important documents highlighting teams’ internal hiring processes. The plaintiffs will also be able to depose key individuals under oath about the league’s diverse hiring practices. Access to such documents and testimony can provide critical insights into what is hindering the advancement of more Black candidates in NFL coaching positions.
Transparency appears to be a critical outcome Flores seeks in the case. The case alleges different standards are applied in hiring, retaining, firing and re-hiring Black and White coaches and that Black coaches are paid less than White counterparts. It also alleges that the Rooney Rule is “not working” because teams are “not doing the interviews in good-faith.” Flores seeks the court to order injunctive relief to increase the influence of Black individuals and objectivity in key hiring and firing decisions. He also seeks transparency in the salaries paid to individuals in key provisions.
The University of Dayton’s Boston believes that regardless of the legal outcome of the case, Flores will find some success in filing the case.
“Where there is smoke, there is often fire,” she said.”The Rooney Rule was implemented by the NFL in response to potential litigation. If teams are being disingenuous in implementing a rule that was specifically designed to avoid litigation, the evidence very well may show that Flores is likely to succeed on the merits. And even if Flores is unsuccessful in meeting his evidentiary burdens, he still will have succeeded in drawing attention to the NFL’s homogeneous hiring practices that have continued for nearly two decades after the Rooney Rule’s implementation. It seems highly improbable that a league whose players are 70% Black is incapable of producing more than one qualified Black head coach in 2022.”
“ Fangio sucks ! That should have been my job!” besides in that interview all he says of them was “ obviously they were there “ . He focuses his compliments on the Bowlen family and the organization. If he didn’t respect the organization I don’t think he’s the type of guy to interview . His allegation is specifically against Elway and the other CEO. The suit does not mention Fangio .Besides it doesn’t matter . Elway has called it “defamatory “ . So bring it on . What was your itinerary the previous evening ? Did you consume alcohol and if so how much .