Baylee Kalmbach, Associate Member, University of Cincinnati Law Review
In a league dominated and lead by Black athletes, the National Football League (“NFL”) “remains mired in a culture that lacks inclusivity and where a barrier to entry still exists today for Black professionals in leadership.” For instance, the ratio of Black NFL players to Professional and coaching staff is acute. Roughly 70% of NFL players are Black. Out of thirty-two franchises, only one team is led by a Black head coach; four teams employ a Black offensive coordinator; eleven teams employ a Black defensive coordinator; eight teams employ a Black special teams coordinator; three teams employ a Black quarterback coach; and six teams employ a Black general manager. Not one team has a Black owner.
The systemic racial discrimination within the NFL came to significant light on February 1, 2022, when former Miami Dolphins head coach Brian Flores filed a class-action lawsuit against the NFL and all 32 teams in the league. As his complaint acknowledges, these statistics and lack of Black representation in league leadership are a direct result of racial discrimination. With widespread calls for enhanced transparency and accountability for misconduct in the NFL, his “standing against the systemic racism in the NFL” might be a true call for “positive change…for generations to come.”
Flores’ allegations include racial discrimination in the hiring process, implicating not only the Civil Rights Act of 1866 (and eventually the Civil Rights Act of 1964), but also the ethical issues with the NFL’s own Rooney Rule. This section will provide a brief background on all three.
A. The Civil Rights Acts
When the States ratified the Thirteenth Amendment in 1865, Congress needed to respond quickly to help bolster the newly granted legal rights of formerly enslaved black populations. Hence, in the passing of the Civil Rights Act of 1866, it statutorily commanded that all citizens have the same rights in making and enforcing contracts. “Today, Section 1981 [of the Act] makes it illegal for a non-governmental party, like the NFL and its teams, to intentionally discriminate against an individual in making and enforcing a contract.”
Nearly 100 years later, The Civil Rights Act of 1964 went a step further to ban employment discrimination based on race, color, religion, sex, or national origin. Title VII, for example, prohibits not only intentional employment discrimination based on these protected traits, but allows plaintiffs to claim disparate impact: “unintentional discrimination…when policies, practices, rules or other systems that appear to be neutral result in a disproportionate impact on a protected group.”
As the Supreme Court ensured in its burden-shifting framework orchestrated in McDonnel Douglas Corporation v. Green, 411 U.S. 792 (1973),disparate impact is (by creation) hard to establish. First, a Title VII plaintiff must be able to establish that, as a member of a protected class, despite his qualifications, he was discriminated against in the employment decision. If proven, the defendant-employer must articulate and prove a “legitimate, nondiscriminatory reason” for its decision. If successful, the burden will shift back to the plaintiff to show that the stated reason is merely pretext, or produce other evidence to show the outcome was discriminatory.
B. The Rooney Rule
Similar to the Civil Rights Acts’ emphases on non-discriminatory hiring processes, starting in 2003 with its adoption of the Rooney Rule, the NFL has steadfastly advertised its commitment to diversity in the hiring of professional and coaching staff. Originally, the rule only required NFL teams with a head coach vacancy to interview at least one socioeconomically/demographically diverse candidate before making a decision. In 2021, the league accepted a change to this policy, now requiring every team to interview two minority candidates for head coach roles, and one for any coordinating position. Unlike the Civil Rights Acts, the Rooney Rule does not implicate legal consequences for teams that violate it, but may trigger potential penalties within the league.
Brian Flores’ complaint not only encompasses the discrimination he experienced personally, but also details the lengthy history of “the NFL’s acquiescence to racism,” and provides history to show “that the NFL is synonymous with ownership resistance to anti-racist protest” which continues today.
Though the Rooney Rule seemingly implies that diverse candidates be legitimately considered for the position, there is no requirement that the interviews be given and conducted in good faith—just that they happen. At the end of the day, if a team follows the rule in interviewing the allotted number of diverse candidates, they are not required to do much else. Consequently, “the Rooney Rule has failed to yield any meaningful change to an institution so fully steeped in discriminatory practices.”
Even without a good faith requirement implicated by the Rooney Rule, there might (and should) be internal consequences for allegedly discriminatory actions even in the face of (apparent) Rooney-compliancy. For instance, “three days before his interview with the New York Giants [Brian Flores was informed] that Brian Daboll had already been selected for the job,” through a mistaken text message from Bill Belichick, Head Coach of the New England Patriots. Through illustrating the ways in which Rooney is carried out disingenuously and has failed to overcome the inherent racism in the league, Flores’ complaint paints the evident picture that, notwithstanding their qualifications, these practices perpetuate the stigma that Black candidates are “Rooney Rule candidates” and not competitive contenders for the position.
Despite Flores having led the Dolphins in its first two consecutive winning seasons since 2003, he was terminated in January 2022. He alleges that Dolphins’ owner Stephen Ross offered him $100,000 in incentives to lose games, and when Flores declined, Ross painted Flores as unreasonable and uncooperative in order to eventually fire him. The reason for such an incentive is, of course, to set the team up for better draft positions in the following season. In fact, Flores’ denial of this alleged offer likely lost the Dolphins’ top pick at quarterback Joe Burrow. Though Flores’ pay-to-lose allegations initially are narrative in telling a larger story of corruption, race discrimination, and retaliation in the NFL, “the possibility of such actions threatens to engulf [NFL franchises] and the league in lawsuits by gamblers, as well as civil and criminal investigations.”
Above all else, Brian Flores’ lawsuit alleges that the NFL and all thirty-two teams’ conduct has violated Section 1981 of the Civil Rights Act of 1866. After following administrative prerequisites, Flores intends to amend his complaint to include employment discrimination claims under Title VII allowing him to sue the NFL and its teams for any intentional discrimination and disparate impact he and others experienced as a result of their alleged conduct.
As a member of a protected class with qualifications comparable to other NFL head coach hires, Flores will likely be able to prove he was discriminated against in the hiring process. However, it is possible that defendant-teams could meet their burden in showing that they did not hire him because of Ross’ indication that Flores is difficult to work with. If so, Flores will need significant evidence, like the text message exchange with coach Belichick bolstered with other discriminatory actions, in order for his claim to survive. For example, as the McDonnel Douglas court identified, even if Flores was not hired because he is difficult to work with, if he can prove that other, non-Black coaches with similar reputations are hired notwithstanding this fact, it could be a relevant showing for his case.
The NFL has opportunity to put its money where its mouth is by creating transparency, accountability, and a true emphasis on Black leadership as standard in its hiring and conduct-regulating practices going forward. Brian Flores’ claims, even if unsuccessful in court, create a path to make such change.
 Complaint & Demand for Jury Trial, Flores v. The NFL, No. 1:22-cv-00871 (S.D.N.Y Feb. 1, 2022) at 36.
 Id. at 6.
 Id. at 5.
 Id. at 128.
 See generally Id.
 Id. at 6.
 Jeremy Engle, Does the N.F.L. Have a Race Problem?, The New York Times (Feb. 9, 2022), https://www.nytimes.com/2022/02/09/learning/does-the-nfl-have-a-race-problem.html.
 Id. See also 42 U.S.C.A. § 1981(a) (1866).
 Alicia Jessop, Analysis: Brian Flores faces hurdles in NFL case but may create transparency in NFL hiring, The Athletic (Feb. 2, 2022), https://theathletic.com/3106423/2022/02/02/analysis-brian-flores-faces-hurdles-in-nfl-case-but-may-create-transparency-in-nfl-hiring/?fbclid=IwAR03A29E_YoY437OBRJBdlMj4gQtivg6vbMt99JUJcpcPpqMwIqocMpkTcU/
 42 U.S.C. § 2000e-2 (1964).
 What are disparate impact and disparate treatment, SHRM, https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/disparateimpactdisparatetreatment.aspx (last visited Mar. 9, 2022).
 McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973).
 Id. at 802. “The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, was rejected; (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.”
 Id. at 804.
 See Complaint & Demand for Jury Trial, supra note 1, at 12.
 Id. at 61. For example, in 2016, Colin Kaepernick “protested societal racial injustice by kneeling during the national anthem.” Despite being a qualified, overachieving quarterback, he was froze out for his political opinions and remains unemployed today. More recently, former Las Vegas Raiders head coach Jon Gruden’s racist, misogynistic and homophobic emails came to light. He referred to the NFL Players’ Association Executive Director DeMaurice Smith as having “lips the size of Michelin tires.” Flores’ complaint states that Gruden embodies “the NFL’s acquiescence to racism.” Id. at 62-73.
 Id. at 109.
 Id. at page 1. “Sorry – I fucked this up. I double checked and misread the text. I think they are naming Brian Daboll. I’m sorry about that. BB.”
 Id. at 13.
 Id. at 14.
 Id. at 14-16.
 Id. at 14.
 Sean Wagner-McGough, 2020 NFL Draft order: Updated list of all 255 selections and ll seven rounds of virtual draft, CBS Sports (Apr. 26, 2020), https://www.cbssports.com/nfl/draft/news/2020-nfl-draft-order-updated-list-of-all-255-selections-and-all-seven-rounds-of-virtual-draft/.
 The Athletic NFL Staff, Brian Flores NFL lawsuit: Live updates, news as former Dolphins coach files discrimination suit, signs with Steelers, The Athletic (Feb. 22, 2022), https://theathletic.com/live-blogs/brian-flores-nfl-lawsuit-live-updates-news-as-former-dolphins-coach-files-discrimination-suit-against-all-32-teams/PqUm2Bl11Qjl/.
 See Complaint & Demand for Jury Trial, supra note 1, at 24.
 Id. at 25.
 See McDonnel Douglas, 411 U.S. at 804.
 See Id. at 802. See also Complaint & Demand for Jury Trial, supra note 1, at 16, 135.
 Id. at 804.