Race Lawfare Hits the NFL

Recently fired as the head coach of the National Football League’s Miami Dolphins, Brian Flores has filed a “systemic discrimination” lawsuit against the Dolphins as well as two other NFL teams and the NFL itself. But the remedies Flores seeks go beyond affirmative action and results.

Flores’s Complaint is a savvy marketing device based on the concrete reality that there is only one black head coach in the National Football League whose players are 70 percent black. Such a fact makes an immediate and undeniable impression on everyone, sports fan or not. How can such a reality exist today, especially in light of today’s public emphasis on race? But what the Complaint proposes to make of civil rights law is another thing entirely. Flores has labeled his lawsuit as a “class action,” but he is the only plaintiff.

The spotlight rhetoric and op-ed-style bombardment begin with the first line of the Complaint quoting a text from New England head coach Bill Belichick to Flores that he had “fucked this up”—referencing his communication about a possible coaching position for Flores. (When has another federal lawsuit begun with that word?) Immediately following is a quotation from Martin Luther King. Next, Harriet Tubman and other civil rights leaders of the past are cited, noting that the Complaint was being filed on the first day of Black History Month.

The NFL, the Complaint asserts, is managed “much like a plantation” (with millionaire professional football superstars apparently serving the role of slaves). In three different places, the Complaint contains a lineup of mug-shots—in color—displaying the overwhelming whiteness of the 32-team league’s head coaches (of whom only one is black), the league’s general managers (of whom only six are black), and team owners (of whom none is black). Res ipsa loquitur! What else need be said or alleged? This style of legal “pleading” continues as the foundation of the case throughout the 58-page document. Although just hired as an assistant coach of the Pittsburgh Steelers at the end of February, Flores has announced that he will continue with this high-profile suit.

Flores says that he intends to add allegations of employment discrimination under Title VII of the federal civil rights law. But he is for now leading with Section 1981 of the Civil Rights Act of 1866, the oldest civil rights act, with its language that “all persons” shall have the same rights “as is enjoyed by white citizens.” Flores seeks a dramatic and comprehensive “injunctive relief” of court-ordered racial results that would establish institutional structures and policies that “black individuals” be involved in hiring and terminating general managers and all coaches; requiring black coaches’ and players’ participation in interviews for those three positions; setting up a special committee to get “black investors” to take “majority ownership” of NFL teams; instituting monetary incentives for teams to hire black general managers and coaches; creating a “training program” for black coaches who have an aptitude for and are interested in coaching at higher levels; and requiring “reduce[d] to writing” “subjective” as well as “objective” criteria for hiring and firing decisions.

Even among this creative list of proposed court-ordered remedies, that last logical and linguistic self-contradiction stands out: written-down “objective” criteria for subjective decisions. It is difficult to imagine the fact-finding a court would have to undertake leading to its decision about whether a team’s hiring or firing decision was in violation of the code of objectively subjective criteria. And would the court’s decision itself be subjective or objective?

But regarding the pleaded facts allegedly proving racial discrimination, the fundamental flaw is that Flores seeks these remedies based on a comparison of the number of black coaches to the number of black players. Flores charges that in the last 20 years “only 11% of Head Coach positions have been filled by Black candidates—in a league where 70% of players are Black.”

With its systemic indirectness and failure to offer any direct proof of intentional racial discrimination, it is hard to imagine how the Flores suit could survive the rule of Comcast v. National Association of African-American-Owned Media.

The problem here is that a genuine affirmative-action and disparate-impact class-action civil rights suit would have to compare like to like. In this case, it would have to set off currently employed black coaches against the pool of available and not-hired black coaches. But Flores compares coaches to players. If he knew the pool of qualified coaches, he would certainly have included it. In seeking for the Court to order the NFL to “create and fund a training program for lower level Black coaches” the Complaint admits its inability to take up the causes of not-hired black coaches because it does not know how many there are who have been victims of racial discrimination. 

Likewise, the Complaint also directly contradicts itself about the alleged failure of the Rooney Rule that for the last 20 years has required NFL teams to interviews minority candidates for general manager as well as the top three coaching positions. It is the failure of that rule that has resulted in “only 11%” of black coaches having been hired over that period. But with no data on interviewed and rejected black coaches, that 11% racial makeup may be referred to another standard: blacks currently make up 12.4% of the country’s population. So, by that comparison, black head coach hiring is nearly perfect, and there has been no racial discrimination. Likewise, the Complaint concedes that 12.5 percent of the offensive coordinators, 34 percent of defensive coordinators, and 25 percent of special teams’ coordinators are currently black. Flores does not mention that in 2007-09 50% of the six Super Bowl head coaches were black. One might conclude from these facts that the Rooney Rule is in fact working. 

The Complaint includes at least eight individual cases of alleged racial discrimination regarding the hiring and firing of coaches. But all of them can be the basis of individual personal or civil-rights lawsuits. Why include those cases in a sweeping and general class-action—except that they are all so subjective and speculative, like the class action, that they could not survive a court’s decision on their own individual merits? Or is it because none could survive on their own as involving individual damages or racial discrimination?

The Complaint also contains the amazing grievance that there has never been a black team owner, but it does not allege that any black billionaire has ever tried to buy an NFL team and been discouraged or denied. And what can a court do about this problem: order black individuals to buy NFL teams? Might they demand that an existing owner sell his or her team to a black billionaire? And should affirmative action for black billionaires really be a public and legal issue today?

And how can the Miami Dolphins be guilty of racial discrimination? In December, Flores was completing his third year as head coach of the Miami Dolphins—unlike 31 of the 32 other NFL teams. Was not Miami more than exemplary, deserving of praise, and proof that the Rooney Rule was working? But in December, the team fired Flores for what Flores says in his Complaint was his “poor collaboration.” Does Flores not understand that now the Dolphins can defend themselves against a claim of racism by offering public evidence in depositions, hearings, and trial of any actual poor collaboration? Flores goes on to accuse Miami of two acts of coercive misconduct in dealing with him. Those acts, if true, might support a personal suit in damages, but Flores does not describe those two incidents in racial terms. Nor does Flores accuse the team of racial bias regarding those incidents.

With its systemic indirectness and failure to offer any direct proof of intentional racial discrimination, it is hard to imagine how the Flores suit could survive the rule of Comcast v. National Association of African-American-Owned Media, another Section 1981 case, in which the Supreme Court unanimously ruled against a claim that cable-television Comcast had racially discriminated in refusing to carry a black-owned network. The majority opinion for eight of the nine justices held that the rejected network had failed to prove intentional racial discrimination, that is, “but for race, it would not have suffered the loss of a legally protected right.”

The Southern District of New York has now reset the first hearing in the case for April 29. As of the date of this writing, none of the defendants has filed an answer. It is hard to understand how the Flores Complaint, with all its legal and non-legal flourishes, can pass the rule of Comcast.