With NFL teams back in training camp, the racial discrimination lawsuit filed by Brian Flores is a cloud hanging over the league as work resumes on the field.
In February, Flores, a Pittsburgh Steelers assistant coach who was fired in January after three seasons as the head coach of the Miami Dolphins, sued the NFL and three teams (the Dolphins, Denver Broncos and New York Giants) alleging discrimination regarding his interview process with Denver and New York and his firing by Miami. Flores is Afro Latino.
The suit, which was filed in a Manhattan, New York, federal court and seeks class-action status, was joined in April by longtime NFL coaches Steve Wilks and Ray Horton, who are both Black. Once Wilks and Horton teamed with Flores, new allegations of racism against the Houston Texans, Arizona Cardinals and Tennessee Titans were included in the lawsuit.
A major ruling on a procedural motion in the case is looming. In June, the league and the six teams being sued filed for arbitration, arguing in court papers that employment agreements with clubs signed by Flores, Wilks and Horton include language requiring arbitration in disputes. If the NFL is successful in its bid to move the case, commissioner Roger Goodell, who works for club owners, would serve as the arbiter or appoint someone else.
“The league clearly believes and is clearly arguing that this is a matter that should go to arbitration,” said N. Jeremi Duru, a longtime league observer and author of the definitive book on the struggle that led to the creation of the Rooney Rule, Advancing The Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL.
“And the league is unmoved by the argument that potential partiality of the arbitrator should be relevant to the decision as to whether it goes to arbitration. And at base, Flores’ lawyers are concerned about partiality.”
Reportedly, the federal judge overseeing the lawsuit ruled recently that Flores, Wilks and Horton would not be required to respond to the NFL’s arbitration motion until the coaches’ “motion for discovery from the NFL and Goodell over the fairness of the league arbitration process is decided by the court.”
It’s easy to understand why the NFL is eager to compel arbitration in the matter.
Goodell is paid by every NFL club, a fact that would appear to create a conflict of interest if he alone ruled on the coaches’ claims, which Goodell’s subordinates in the league office say are without merit. What’s more, in arbitration, the proceedings would be shrouded in mystery, compared to being open in federal court. Without a trial, it’s much less likely that information – including evidence – about the coaches’ specific claims, and the NFL’s counterarguments, would come to light.
Clearly, for those reasons and others, it’s in the coaches’ best interests to keep things in public view, experts in labor law say.
William B. Gould IV, a professor emeritus at Stanford Law School who served as chairman of the National Labor Relations Board from 1994 to 1998, said the coaches would likely face an insurmountable hurdle if the NFL prevails in compelling arbitration.
“This business of these private employer-imposed arbitration systems are a major issue and a major obstacle to realizing employee rights, generally, in our society and sports as well,” said Gould, author of For Labor To Build Upon: Wars, Depression and Pandemic.
“These … systems the NFL has come up with have given arbitration a bad name because they’re not mutually agreed-upon arbitration systems between a union and an employer, which it was traditionally, but rather these employer-imposed systems that the Supreme Court has become enamored with … as a substitute for litigation. They’re not really fair to workers – and particularly in cases involving racial discrimination.”
Flores, Wilks and Horton have alleged that professional sports’ most successful and powerful league commits widespread malfeasance in hiring.
Although the league office says the coaches’ specific allegations are without merit, even Goodell has acknowledged the NFL comes up short of the goal line in inclusive hiring.
In the early stages of yet another season, the NFL has only three Black head coaches: Mike Tomlin of the Steelers, Lovie Smith of the Texans and Todd Bowles of the Tampa Bay Buccaneers. Mike McDaniel of the Dolphins, who is biracial, joins Ron Rivera of the Washington Commanders and Robert Saleh of the New York Jets as the league’s other minority head coaches.
Over the previous five hiring cycles, there were 36 head-coaching openings. Only four Black men were hired to fill positions. In the hiring cycle completed before the most recent NFL scouting combine, white coaches were chosen for seven of the nine openings (Tampa Bay’s opening occurred unexpectedly after the combine).
The NFL has only two Black offensive coordinators: Eric Bieniemy of the Kansas City Chiefs and Byron Leftwich of the Buccaneers. It always bears repeating: The NFL has 32 teams.
In 2020, Black or African American players accounted for 57.5% of those on NFL rosters. The fact is, more than half of the league’s on-field workforce is Black, but Black people are vastly underrepresented in NFL team leadership.
With that backdrop, the potential to have Goodell determine the outcome of the coaches’ case would be inappropriate to say the least, according to Gould.
“Absolutely,” Gould said. “I mean, it’s like I dismiss you or I discriminate against you, and then I appoint myself as a judge to determine whether it was fair or not. I mean, who ever heard of such a thing?
“It’s not consistent with due process and an equitable process. It’s not fair at all. It’s an outrage. But unfortunately, it’s what we are stuck with in most of the cases that involve employee rights these days.”
Of course, that doesn’t necessarily mean the judge will grant the NFL’s motion to compel arbitration, said Susan D. Carle, a professor of law at American University Washington College of Law.
“The NFL commissioner … works for the defendants in the case, so I think many, many judges would throw [the NFL’s motion to compel arbitration] out,” said Carle, an expert in discrimination, labor and employment law.
“There are really tight rules about the lack of conflict of interest, proper procedures, due process, the impartiality of the decision-maker … and [the NFL’s] arbitration agreement just doesn’t meet any of those standards. While I cease to be surprised by anything, I think that a fair evaluation of the claim would lead to a conclusion that the arbitration agreement is flawed and not one that could be used for this kind of claim.”