Brian Flores case
A complete analysis of the Brian Flores case cannot be complete until the outcome of the case is determined, however a few intriguing aspects came out.
The case started from a claim that Brian Flores alleging racism; two other black coaches (Steve Wilks and Ray Horton) joined the lawsuit (the case is seeking class action certification). Wilks and Horton are two ethnic minority coaches from the Arizona Cardinals and Tennessee Titans that are claiming wrongdoing in their separate hiring practices. The three now all echo the allegation that the league shows bias against minority coaches. Wilks states that the Cardinals only hired him as a “bridge coach” back in 2018 and later fired him after season. He claims he was never given a proper and fair chance. He further states that the decisions made by the other coaches of the team at the time were wrong, and they should take most of the blame, instead of him. Wilks released a statement regarding why he joined the lawsuit:
Like Brian and Ray, I did not make the decision to join this lawsuit based on what it could potentially cost me in my own career, instead, this decision was made to help pave the way for the next generation of talented minority coaches and executives to finally be given an equal opportunity and level playing field.
On the other hand, Horton claims that the Titans gave him a “sham interview”. This was done to only meet the requirement of the Rooney Rule. This is where change should and must be done, as more rules and regulations need to be in place to help give fair opportunities to minority coaches, not just faking an opportunity to meet a league requirement. Horton also released a statement, empathizing similar thoughts as Wilks:
Although I know that I am taking a risk being associated with this case, it would be a bigger risk to stand on the sideline and give the NFL a pass for the systemic discrimination that has harmed me and so many others.
Following the joining of Wilks and Horton to the Flores lawsuit, the Arizona Cardinals and Tennessee Titans stated that the firing and hiring practice conducted was a “difficult decision” and that it was “entirely driven by what was in the best interests of our organization and necessary for team improvement. We are confident that the facts reflect that and demonstrate that these allegations are untrue.”
Interviews
I interviewed four lawyers (two contract lawyers and two sport lawyers) to gather some insightful information on the employment contracts and NFL rules and regulations; due to confidentiality and privacy concern, they have requested to remain anonymous.[1] The two contract lawyers are experienced in the field of contract drafting and interpretation; the sport lawyers have represented various clients in the NFL during negotiations and appointments. I decided to interview two contract lawyers because they may be able to identify issue/problems with coaches’ employment contracts and rules and regulations of the NFL; on the other hand, the two sport lawyers have a better overall understanding of where the NFL is heading regarding the possible claim of discrimination in the NFL with coach’s hiring.[2]
So, I asked one of the contract lawyers what is the key to having a successful employment contract between parties and he explained that the best contracts are the ones that present great service to the employer at the best cost for both employee and employer Whilst, all individuals are part of a team, they will most likely have a contract that binds them, the two key contracts of interest are players and coaches. I also asked whether it is practically the same to have a contract between employees and coaches and whether coaches serve as employees. One contract lawyers explained that coaches can be considered employees as they are hired by an employer. However, in a sports context, coaches are usually considered external contractors.
Discrimination cases seem to be starting to be a new trend in sports, but in the NFL in particular. Because of this common theme, so I discussed with one of the contract lawyers whether the NFL is to blame for the possible discrimination lawsuits, like the Brian Flores one; he explained that it is difficult to say who is to blame as the Flores case is still ongoing. However, the NFL should take a harder stance on the issue. The NBA takes very bold stances on similar issues, while the NFL tends to have a more neutral attitude. I asked one of the contract lawyers if he thought the rules and regulations established by the NFL are to blame or instead the problem is the contracts that are being written between coaches and teams. He explained that he has not dived into all the rules and regulations of the NFL when hiring a coach, however the predominant rule is the Rooney Rule, which has received a lot of negative criticism regarding especially in the last few years. He also explained that contracts are mostly the same; the only thing that changes are the lucrativeness; nowadays we can see a vast number of contracts that involve huge sums of money. Whenever individuals are dealing with millions upon millions, things are aways more complicated.
I discussed the following with the sport lawyers: Since we have noticed the increase in discrimination lawsuits in the NFL, I asked whether the rules and regulations are mostly similar among different leagues and sports when looking at the hiring of coaches. He explained that the hiring process is unique in any league; however, teams always look to find the best fit for their team, all while meeting different standards and expectations. Also, each league has requirements a team should meet before selecting. The most important rule in the NFL has is the Rooney Rule, which requires teams to interview ethnic minority applicants. Similarly, this lawyer explained, he heard that teams being required to hire “a female or member of an ethnic or racial minority” in 2022. If I was to say that is sufficient, I would be in bad faith, one should always strive for more, as if one gets content that’s when progress stops. The NFL had to have the implementation of an anti-discrimination rules.” When I asked, whether minority coaches are at a disadvantage in sports in general, he answered that he thought it might be the case; in fact, he pointed out: “If I remember correctly, there is only about 35% black head coaches and assistants in professional sports. So, statistically I would say so.”
In contrast to football, basketball has found much greater balance between different ethnicities in coaching. So, I asked how the NBA achieved an equal footing, giving equal opportunities to minority coaches is the NBA. He explained that the NBA is almost an anomaly. “If you look at it is quite extraordinary what they have been able to do and considering that they did so without the Rooney Rule is even more astonishing. The NBA commission did start a ‘NBA Coaches Equality Initiative’ which pushed the envelope further, and the fact that the commissioner of the NBA Adam Silver, has been very outspoken has helped a lot.”
With all the lawsuits that are appearing, the media seems to be playing a role in the news reaching the public. Because of this, I asked one sport lawyer whether he thought NFL teams are hesitant to hire minority coaches because of the bad publicity that may arrive if they fire them. He explained that a team must follow the rules and regulations of its league, but then they can ultimately choose the coach that they believe will work best for the team. As a matter of fact, he explained: “The NFL does not state that a team MUST hire an ethnic minority, it just clearly states that a team MUST interview at least one when a coaching position opens. Teams and organizations know the rules and know how to exploit the rules. “
I finally asked how long it will take for more equal opportunities in the NFL coaching position? One of the two sport lawyers expressed optimisism: “If we look at the NBA, they achieved a more equal and fair coaching opportunity only recently. It almost happened suddenly. I would not be surprised if the outcome of the Flores case determines the direction of the next few years.”
Conclusion
The ever so clear lack of equal opportunities in most professional sports is something which should be tackled and overcome. This emerges clearly from the literature and the interview with the four lawyers. The NFL current rules and regulations are not sufficient. The only real anti-discrimination measure the NFL has taken is the Rooney Rule, which now may have become just a box to tick for teams. A clearer stance must be taken to have equal opportunities in coaching positions. The stance needs to be from both the individual teams and the NFL organization.
As iterated by the lawyers I interviewed, the outcome of the Brian Flores case could determine the direction the NFL takes for the near future; it can also affect other leagues on the matter of discrimination on minority coaching positions. It seems apparent that for now teams are more worried about the potential bad publicity that may arise if a team fires a minority coach. However, depending on the outcome of the lawsuit, teams should be worried also of the bad publicity that may arise if they decide to only tick boxes and not give fair chances to ethnic minority coaches.
Tommy Ceccuzzi
[1] The decision to remain anonymous is brought about due to the current news circulating the NFL, more specifically about the bad publicity surrounding lawyers and the interpretation of the rules and regulations that are established by the NFL.
[2] The questions that were asked in the set of interviews remain mostly the same for the two contract lawyers and the two sport lawyers. However, the list of questions did differ slightly according to the field of law. Contract lawyers were asked mainly about contracts between coaches and teams. Whilst the sport lawyers were asked about the rules and regulations that the NFL has put in place. The questions left room for interpretation and opinion to be herd.