Brian Flores sues the NFL

Last month, I wrote about Brian Flores, the moderately successful black coach of the Miami Dolphins, who was fired after three seasons. I said that the firing of Flores raised suspicions of racism, but that it’s extremely unlikely the dismissal really was race based.

The Dolphins defended the decision to sack Flores, at least in part, on the basis that the coach clashed with the Dolphins’ general manager, who is black. Having hired both a black GM and a black head coach, the notion that the Dolphins discriminate on the basis of race in top-level jobs seemed far fetched.

Undeterred, Flores has now sued the Dolphins, two other NFL teams, and the league itself for alleged discrimination. His Complaint is here. I want to offer some preliminary and tentative thoughts about the case.

First, though, I should provide some disclosure. Years ago, I provided legal services defending perhaps a dozen cases brought against various NFL teams and/or the NFL. None involved the hiring or firing of a coach, and none of the information in this post was gained in the course of my representations. All the assertions of fact in this post are based on publicly available information.

As to Flores’ claim against the Dolphins, it strikes me that the ex-coach’s own statements establish that he was not fired because of his race. Appearing on CBS after filing his suit, Flores reportedly said the Dolphins’ owner offered him money to lose games so as to improve the team’s draft position. According to Flores, he refused and this “hurt my standing within the organization and ultimately was the reason I was let go.” (Emphasis added)

It would be deplorable to fire a coach for not losing intentionally. But doing so would not be race discrimination. If Flores is right that non-tanking was “the reason I was let go,” then race was not the reason — not unless he can show that the Dolphins have retained white head coaches who also refused to tank.

Not content with undermining his claim of race discrimination through this attack on the Dolphins’ owner’s integrity, Flores also alleges that the owner pressured him to recruit a “prominent quarterback” for the franchise, in violation of rules against tampering. Flores says he did not participate in that recruiting effort (of Tom Brady, probably) and thereafter, “was treated with disdain and held out as someone who was noncompliant and difficult to work with.”

This, then, is another reason for Flores’ serious problems with the Dolphins that has nothing to do with his race.

Given Flores’ concessions plus the fact that the Dolphins have a black GM, his race discrimination claim against the team seems quite weak.

Flores also claims that the New York Giants discriminated against him when, recently, they hired a white head coach to fill a job he interviewed for. He says that before the Giants interviewed him, he received a text from Bill Belichick congratulating him for getting the job.

Apparently, Belichick intended to congratulate a different Brian — Buffalo Bills assistant Brian Daboll — who did, in fact, get the job. From this, Flores infers that his interview was sham (or pro forma) compliance with the “Rooney Rule,” which mandates interviews for minority candidates, and that the Giants never seriously considered him.

What Belichick knew, as opposed to what he assumed, is unclear. However, if Flores’ interview with the Giants was a sham, this would show only that (1) the Giants thought Daboll was clearly their guy whatever Flores, or anyone else, might say during an interview and (2) they didn’t take the Rooney Rule very seriously. It would not tend to show that the Giants preferred Daboll to Flores because of race.

Flores has also sued the Denver Broncos. This claim, too, is based on allegations that his interview. with that team was a sham. He says:

Broncos’ then-General Manager, John Elway, President and Chief Executive Officer Joe Ellis and others, showed up an hour late to the interview. They looked completely disheveled, and it was obvious that they had [been] drinking heavily the night before. It was clear from the substance of the interview that Mr. Flores was interviewed only because of the Rooney Rule, and that the Broncos never had any intention to consider him as a legitimate candidate for the job. Shortly thereafter, Vic Fangio, a white man, was hired to be the Head Coach of the Broncos.

Again, even if true, this would show only that the Broncos didn’t think as much of Flores’ candidacy as they did of Fangio’s. It would not mean that race played any part in their thinking.

However, Flores will be hard pressed to prove the truth of his allegations against Elway, Ellis, and the others. The Broncos say:

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.

If Flores gets to trial, it will probably be his word against five Broncos executives and pages of detailed notes.

Flores seeks to represent a class — other Blacks allegedly denied jobs as head coaches, offensive and defensive coordinators, quarterback coaches, and general managers because of their race. I have no opinion on the merits of the underlying class allegation. As I tried to show last month, the fact roughly 70 percent of current NFL players are Black, compared to 10 percent of NFL head coaches last year (for example), has little if any bearing on the issue of race discrimination.

However, it’s possible that the disparity between the percentage of black head coaches and their representation in a properly constructed candidate pool would be statistically significant. It’s also possible that a careful case-by-case and/or statistical analysis of head coach firings during a relevant time period would show that Blacks need to perform better than Whites to keep these jobs.

But to maintain class claims, Flores will have to obtain class certification. This is not the place for a detailed discussion of class certification in the context of Flores’ case.

However, it seems to me that the weakness and quirkiness of Flores’ individual claims — again, he basically says he was fired for not complying with wishes of the team owner that have nothing to do with race — could be an obstacle to certification. Running through Rule 23(a) and (b) of the Federal Rules of Civil Procedure, which govern class certification, is the notion that the name plaintiff’s claims must be non-idiosyncratic enough to justify proceeding on a class basis.

Given what I’ve written above about Flores’ individual claims, this may be one barrier to class certification.

A related problem is the highly individualized nature of even plausible race discrimination hiring claims for head coaching positions. As far as I know, there’s no job description for head football coach. You can’t hold up a candidate’s paper credentials against set, objective criteria and figure out whom to hire that way.

Flores interview with the Broncos took three-and-a-half hours. I don’t know what happens during these interviews but I assume there is a detailed discussion of coaching philosophy, coaching strategy (offense, defense, and special teams), potential assistant coaching hires, and player personnel. Assessment of how a coach does during such interviews, along with a general evaluation of whether the coach seems to “have what it takes” to lead five dozen or more professional athletes, is incredibly subjective.

Given this reality, how does a trier of fact, with no more than (at best) a fan’s knowledge of pro football, decide whom a team would have hired in a fair, non-racially biased process? Think about what passes for knowledge and insight on sports talk radio. In the case of a jury in the Southern District of New York, where Flores has brought his case, the verdict would be rendered by “Joe from White Plains” and “Tito from the Bronx” — or maybe by their non-football-watching wives.

There may be no getting around this difficulty when it comes to litigating Flores’ individual claim. But perhaps the problem militates against trying dozens of these highly individualized claims together in a class action.

Flores says he’s bringing the case to shine a light on what he thinks (and what may be) race discrimination against black coaches, GMs, and candidates for these jobs. The over-the-top wording of his complaint (e.g., “In certain critical ways, the NFL is racially segregated and is managed much like a plantation. . .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.”) offers more heat than light.

But maybe there is racial discrimination here and maybe this lawsuit is a serviceable vehicle for exposing it. One possibility — and it’s always a possibility — is that the case will settle. Flores and, in the event of certification, class members would get paid and the NFL would make some hiring commitments.

On the other hand, Flores’ individual case may be so weak, and his allegations so inflammatory and larded with irrelevant shots against the league (e.g. the Colin Kaepernick saga), that the NFL will opt to fight, hammer and tong. If so, it could be quite a spectacle.

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