The Morning Dispatch: Race-Discrimination Lawsuit Rocks NFL

Happy Thursday! Twenty years ago today, the New England Patriots won their first Super Bowl. 

Fun fact: Tom Brady played in 10 Super Bowls during his 22 seasons in the league, meaning he was more likely to reach the Super Bowl in a given year than Steph Curry is to make a three-point shot.

Quick Hits: Today’s Top Stories

• The Pentagon announced last night that U.S. Special Operations forces had conducted a “successful” counterterrorism mission in northwest Syria, and there were no U.S. casualties. He did not specify who the target was, but Reuters reported a raid targeted a “house in the Atmeh area near the Turkish border.” Syrian aid workers said at least 13 people—including six children and four women—were killed in clashes after the raid began.

• The Biden administration will deploy approximately 3,000 U.S. service members to Romania, Poland, and Germany in the coming days, Pentagon spokesman John Kirby told reporters yesterday. “The current situation demands that we reinforce the deterrent and defensive posture on NATO’s eastern flank,” he said, but added the troops will not fight in Ukraine.

• White House press secretary Jen Psaki told reporters on Wednesday the Biden administration is no longer using the word “imminent” to describe a potential Russian invasion of Ukraine. “It sent a message we weren’t intending to send, which was that we knew that President Putin had made a decision,” she said, adding that it’s “still true” Putin “could invade at any time.”

• The Eurozone’s annual rate of consumer-price inflation reached a record 5.1 percent in January, the European Central Bank reported Wednesday. Economists generally believed year-over-year inflation had peaked in December, and were expecting the figure to fall back down to 4.3 percent.

• Shares in Meta (Facebook) tumbled more than 20 percent yesterday after executives revealed in Wednesday’s earnings report the platform’s daily active user base declined quarter-over-quarter for the first time in company history. The platform blamed missed expectations, in part, on Apple’s privacy changes that allow iPhone and iPad users to block apps from tracking their online activity.

• The corruption scandals and lawsuits that have rocked the National Rifle Association since 2019 have taken a financial toll on the group, according to a Thursday report in The Reload. Revenue has fallen to nearly half what it was in 2018, while legal fees have expanded to about 20 percent of the group’s expenses.

• Members of Canada’s Conservative Party voted 73-45 on Wednesday to oust Erin O’Toole as their leader several months after he failed to unseat Prime Minister Justin Trudeau in last September’s election. He is likely to be replaced by the more hard-right Pierre Poilievre.

• CNN President Jeff Zucker resigned on Wednesday after announcing he had failed to disclose a romantic relationship with Allison Gollust, another top CNN executive. The relationship came to light as part of an outside law firm’s investigation into former CNN anchor Chris Cuomo’s time at the network.

NFL Head Coach Alleges Widespread Racial Discrimination

A little more than a week out from Super Bowl LVI, football’s high holy day, the NFL would like nothing more than to be showcasing the dynamic talents that propelled the Los Angeles Rams and Cincinnati Bengals to the game’s biggest stage. Matthew Stafford and Joe Burrow, gunslinging quarterbacks taken first overall in the draft 11 years apart. Ja’Marr Chase and Aaron Donald, arguably the most dominant offensive and defensive players in the playoffs thus far, respectively. But those conversations will have to wait.

On Tuesday afternoon, former Miami Dolphins head coach Brian Flores filed a remarkable, 58-page class-action lawsuit in federal court accusing the Dolphins, New York Giants, Denver Broncos, and NFL as a whole of discriminatory conduct in the hiring and retention of black head coaches, coordinators, and general managers.

Looking strictly at the numbers, it’s not difficult to see where Flores—who was born in Brooklyn to two Honduran immigrants—is coming from. Estimates vary year to year, but black players account for somewhere between 58 percent and 70 percent of the league’s 32 rosters. After Flores and David Culley of the Houston Texans were fired last month, however, Mike Tomlin of the Pittsburgh Steelers stands alone as the NFL’s only black head coach, with four vacancies yet to be filled. Nineteen percent of NFL general managers—the people generally tasked with hiring head coaches—are black, as are fewer than a quarter of NFL offensive and defensive coordinators, roles considered stepping stones to a head coaching position. There are no black team owners.

“That’s a huge disparity, one that is not likely to be attributable to chance,” said Vicki Schultz, a Yale Law School professor and former trial attorney at the Department of Justice who focused on employment litigation.

The data is not new—the NFL itself has openly acknowledged in recent years that it hasn’t “done well” on diversity in its upper ranks and that it “must see different outcomes”—but Flores’ suit gives a sense of urgency to a conversation that league executives and owners have long kept on the back burner. “Over the years, the NFL and its 32-member organizations have been given every chance to do the right thing,” the complaint reads. “Rules have been implemented, promises made—but nothing has changed.”

Faced with a similar lack of diversity in the head coaching ranks two decades ago, the NFL adopted what has since become known as the Rooney Rule. Named for the late-Steelers owner Dan Rooney, the provision sought to guarantee a baseline of opportunity by requiring teams with a head coaching vacancy to interview at least one minority candidate for the role. That number has expanded to two over the years, and it now applies to general manager and coordinator-level positions as well. 

The league’s intentions with the rule were in the right place, and teams have hired more than 20 non-white head coaches since 2003 (slightly more than 15 percent of all hires during that span). But there are currently fewer black head coaches today than there were when it was first implemented. A pair of allegations in Flores’ lawsuit, if true, would help explain why.

When Flores was fired in early January by Dolphins owner Stephen Ross—allegedly for “poor collaboration,” though Flores claims it was because he rebuffed Ross’ request/bribe to “tank” the 2019 season for a better draft pick—he immediately became one of the hottest coaching candidates on the market. Ross denied Flores’ allegation that he offered his coach $100,000 for every loss in 2019, but the NFL announced yesterday it is investigating the assertion and Flores’ attorneys claim to have corroborating evidence.

A longtime disciple of New England Patriots mastermind Bill Belichick, Flores—hired by Miami in advance of the 2019 season—had done an admirable job coaching up a lackluster roster, leading the Dolphins to their first back-to-back winning seasons since 2002-2003 and ending 2021 winning eight of the team’s last nine games. Four of the eight other teams in need of a head coach this winter brought him in for an interview.

Three days before Flores was scheduled to interview with one of those teams, the New York Giants, Belichick texted him to congratulate him on getting the position. Flores was confused. “I interview on Thursday. I think I have a shot at it,” he replied, according to a screenshot of the conversation included in the lawsuit. Belichick had texted the wrong Brian—Brian Daboll, the Buffalo Bills’ offensive coordinator, had been offered the Giants job. Flores sat through an extensive interview with the team’s brass on January 27 knowing that the position had already been filled. Daboll’s hire was officially announced on January 29.

Three years earlier, the Denver Broncos—who had just fired a black coach, Vance Joseph, after two losing seasons—brought Flores in for what he described as another “sham” interview. The team’s executives showed up an hour late, Flores said, and they looked “completely disheveled,” like they had been “drinking heavily the night before.” Flores interviewed with the team on January 5, four days before the Broncos announced Vic Fangio as their next head coach. Fangio was also fired last month, having accrued a lowly .388 winning percentage over the past three seasons.

The allegations have revived a longstanding debate about the efficacy—and purpose—of the Rooney Rule. Kim Forde-Mazrui—a professor at University of Virginia School of Law who focuses on employment discrimination—believes policies encouraging broader candidate pools can bolster organizations’ diversity, but only if those organizations truly want to diversify. “It’s difficult for laws or other rules to change biased behavior in people that really have no interest in changing,” he told The Dispatch.

On the other end of the spectrum, Benjamin Sachs, a labor professor at Harvard Law School, argued the Rooney Rule is a disaster. “What I think the Flores case shows, if it wasn’t already obvious, is that the Rooney Rule is worse than nothing,” he said, arguing it provides a “fig leaf of cover” over deeper problems. “[It] brings to light, just acutely, how the Rooney Rule can be humiliating; how it can produce not moderate progress, but actual, race-based humiliation.”

The Giants and Broncos both dispute Flores’ allegations. A Giants spokesman said the team was “confident with the process that resulted in the hiring of Brian Daboll” and that “Flores was in the conversation to be our head coach until the eleventh hour.” The Broncos dismissed Flores’ claims as “baseless,” “disparaging,” and “blatantly false,” claiming to have pages of detailed notes indicating “sincere interest” in him as a candidate. The NFL, in a statement, expressed a deep commitment to “ensuring equitable employment practices” and made clear it will defend itself against Flores’ allegations, which it claims “are without merit.”

Whether you think Flores’ suit is sparking an important conversation about a systemic issue or simply an example of sour grapes after being fired and passed over for other jobs, he has an uphill legal climb ahead of him. His lawyers indicated in the complaint that they plan to file a charge of discrimination with the Equal Employment Opportunity Commission, allowing Flores to file a subsequent action under Title VII of the Civil Rights Act of 1964 that prohibits employer discrimination on the basis of various protected classes.

“All federal employment discrimination cases are tough to win,” said John Donohue, a Stanford Law School professor who co-authored an employment discrimination textbook. But even tougher are disparate impact employment discrimination cases, which allege employers, without intent, engage in practices that disproportionately harm a protected class. In the NFL’s case, this would address the broader “pipeline” argument: That there are few black head coaches because there are few black coordinators to choose from, and there are few black coordinators because there are few black quarterback coaches to choose from, and so on.

Given the “sham” interview allegations, Flores could also claim disparate treatment, or intentional discrimination. “Under the disparate treatment case, Flores is an obviously qualified candidate,” said William Gould IV, the former chairman of the National Labor Relations Board who helped negotiate an end to Major League Baseball’s 1994 strike. “There were vacancies for which he applied—which were filled by others who were white—and the burden shifts in disparate treatment cases to provide a non-discriminatory justification for the decision.”

The Giants will likely be able to do that—the Bills offense had an incredible season, and Daboll was considered a top head coaching candidate for months—but Donohue foresees Flores’ team using the NFL’s own purported standards in addition to federal law. “The fact that they have this Rooney Rule is something that the plaintiff’s lawyers will likely cling to, even if it’s not a sure-fire winner,” he said. “You [could] say, ‘Look, they have this rule because they know they’ve got a problem here, and they’re trying to remedy this racist history, and they weren’t even following their own rule.’ And the defendants can always say, ‘Well, your Honor, this just shows that we’re not discriminators because we go to these great lengths, and we don’t have to have that rule, but we’re trying to bend over backwards to make sure we’re not discriminating.”

If previous lawsuits are any indication, the intricacies of the lawsuit are unlikely to matter all that much: The NFL will likely do everything it can to reach a settlement and avoid reaching the discovery process, where both sides would be able to seek access to the other’s internal documents. “Even though these are tough cases to win, I suspect that there’s a lot of dirt that can come out that the NFL would not want to be hearing about, a lot of racist comments made to people,” Donohue said. One of the league’s most prominent and highest paid coaches, Jon Gruden, was fired earlier this season after old emails leaked in which, among other things, he described an NFL Players Association executive as having “lips the size of michellin [sic] tires.”

The plaintiffs are asking the court for “injunctive relief necessary to cure Defendants’ discriminatory policies and practices,” as well compensatory damages. If they don’t settle, Gould said Flores’ lawyers will have to link his own anecdotal experiences to the broader demographic trends if they want any chance of winning. “They’re going to have to take the testimony of the relevant Giants [and Broncos] people that are named in the complaint to see who’s telling the truth here,” he said. “They’re going to have to do as much of this as they can, and to tie this to the overall statistical showing, which is damning.”

“The jury is out on what they’ll be able to show,” Gould continued. “But what they have shown is that the performance of the NFL—at a minimum—is, in this arena, disgraceful. And they have shown a good deal of activity, which might, on the face of it, suggest that there’s something rotten in Denmark in this case.”

Worth Your Time

• In early January—days before Flores was even fired—Kalyn Kahler wrote a piece for Defector exploring how big a role nepotism plays in NFL coaching. “After looking through every team’s coaching staff as of March 2021, I found that Adam and Mike [Zimmer] and Nate and Pete [Carroll] are among 111 NFL coaches who are related biologically or through marriage to current or former NFL coaches, out of a total of 792 coaches employed by NFL teams. That’s 14 percent of all coaches,” she writes. “Overall, the league averages 3.4 coaches per team who are related to a current or former NFL coach, and the percentage of coaches at the supervisory levels—the ones with hiring power—is even higher. Eleven of 32 head coaches are related to a current or former NFL coach. There are 24 coordinators who are related to current or former coaches, almost a full quarter of them.”

• The United States’ national debt surpassing $30 trillion this week should be a major wake up call, Eric Boehm writes for Reason. “Even if the growing debt doesn’t trigger a default or other crisis, it will have a material impact on Americans’ futures,” he argues. “Higher levels of debt are correlated with lower levels of future economic growth in no small part because the amount of money that must be siphoned out of the economy to pay the interest on the debt will keep getting larger. Every dollar used to service the debt is a dollar that can’t be used to invest in new technology, pay workers, or save for the next rainy day. Higher levels of debt also make it more difficult for policy makers to combat inflation, which is eroding away at Americans’ paychecks and savings faster than at any point in the past 40 years.”

• In a piece for The American Conservative, Micah Meadowcroft makes what may seem at first blush to be a counterintuitive argument about social media and political polarization. “Social media do not contribute to political extremism by letting us sort into ideological silos; instead, they constantly expose us to people with beliefs and ways of life that appear to us as a threat,” he argues. “We have not been siloed by 24 hour news and digital infotainment, but rather exposed incessantly to the reality of different types of people and alternative ways of living. Our communities and the social order we take for granted become at risk as, thanks to technology, we find ourselves unable to simply live apart from the other. For the other is now here, in our home, in our face, on our screen, all the time.”

Presented Without Comment

Also Presented Without Comment

Toeing the Company Line

• On the site today, Andrew has a piece about the cagey way the National Park Service has handled the task of clearing homeless encampments on federal land in D.C., Danielle Pletka decries the world’s indifference to the plight of the Uyghurs in advance of the Beijing Olympics, and Christian Schneider offers one cheer for gerrymandering.

• On Wednesday’s Dispatch Podcast, Sarah, Steve, David, and Jonah discuss the latest January 6 revelations, how partisans on both sides of the political aisle are approaching  the upcoming Supreme Court confirmation process, and how to think about the Winter Olympics in light of the Chinese Communist Party’s horrific treatment of the Uyghurs.

• Holy croakano! Chris Stirewalt is back on The Remnant, talking to Jonah about party alignment in America, Congressional kookery left and right, and Joe Biden’s biggest weakness. The punditry is rank with this one.

• In this week’s Capitolism (🔒), Scott Lincicome dives into House Democrats’ COMPETES Act. The legislation, he argues, “provides us with a teachable moment about how not to legislate economic policy in the United States and, quite frankly, about much of what’s wrong with congressional policymaking in general these days.”

• Jonah’s Wednesday G-File (🔒) focuses on Whoopi Goldberg (no relation), and her comments about the Holocaust that got her suspended from The View. “Goldberg didn’t bring the most basic facts to bear on the conversation. If you want to suspend her for that, fine,” he writes. “But from what I can tell, by that standard the show should have been pulled off the air years ago.”

Let Us Know

Do you think there is any possible justification for the current NFL head coaching disparity—one black head coach despite black players constituting up to 70 percent of the league—aside from implicit or explicit discrimination? Does it make more sense to think of the current situation as a collection of decisions made over the years by individual team owners and executives, or broader systemic forces that are bigger than any one person’s decision?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@lawsonreports), Audrey Fahlberg (@AudreyFahlberg), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), and Steve Hayes (@stephenfhayes).