On Tuesday, the first day of Black History Month, former Miami Dolphins head coach Brian Flores sued the NFL for racial discrimination. The groundbreaking class action lawsuit seeks to rectify decades of hiring discrimination in coaching positions throughout the league. Flores’ suit has received a lot of attention among sports fans because it contains several embarrassing bombshells, including Flores’ allegation that Dolphins owner Stephen Ross offered him $100,000 per loss to tank his first season and tried to get him to illicitly poach a top quarterback (Tom Brady, according to one report) via an “accidental” meetup on Ross’ yacht.
Less attention has been paid to the legal challenges the case faces and how likely it is to succeed. Several labor and discrimination law experts, and one of Flores’ attorneys, say that Flores has some steep hurdles ahead. These experts also make clear that this lawsuit is by no means a publicity stunt. Indeed, whether or not Flores actually meets the high legal standards needed to prevail in court, the case is likely to expose the clear discrimination within the NFL’s hiring system that has produced as many current Black coaches as there have been Black presidents. It will also likely force open an embarrassing vault of secrets from white league owners and executives who have demonstrated quite explicit racism when previously forced into discovery by the legal system.
The claims in Flores’ lawsuit—while not necessarily enough on their own to prove discrimination—should be enough to reach some discovery phase in litigation, the experts told me. Flores may be able to substantiate his case by forcing league and team officials to produce documents and undergo depositions that could unearth embarrassing details about the league’s clearly flawed hiring practices. (The NFL, New York Giants, Ross, and Miami Dolphins have all issued various denials of Flores’ allegations.)
One of the biggest initial challenges Flores will face will be to earn class certification for the dozens of Black coaches he says are being denied opportunities in the league as head coaches, offensive coordinators, defensive coordinators, and quarterback coaches. The lawsuit alleges that the Rooney Rule, which demands teams “interview at least two external minority candidates for open head coaching positions” and “one external minority candidate for a coordinator job,” is a farcical process meant to provide the appearance of diversity without actually offering meaningful opportunities to Black coaches. The statistics presented in the suit are on their face damning: Since the Rooney Rule went into effect, 11 percent of NFL head coaching hires have been Black and only one Black head coach remains in the league. Meanwhile, just 12.5 percent of offensive coordinators and 34 percent of defensive coordinators—positions that often lead to head coaching jobs—are Black. This is in a league that draws its coaches largely from an athlete pool that is made up of 70 percent Black players.
Despite these statistics—and the fact that Flores has extensive evidence that his recent interview with the New York Giants under the Rooney Rule was a sham—having the case move forward as a class action may be a challenge. Recent Supreme Court precedent has set high hurdles for plaintiffs to clear in class action discrimination suits. Rutgers Law School Vice Dean and Professor Stacy Hawkins said the critical 2011 case Wal-Mart Stores, Inc. v. Dukes, “basically changed the game for discrimination plaintiffs trying to gain class certification.” According to Wal-Mart Stores, class action lawsuits demand a high level of “commonality” between members of the proposed class action group. This presents a challenge in discrimination cases, because the specifics of every individual discrimination case are generally different.
“Oftentimes in these discrimination cases—especially when you’re making allegations of intentional discrimination—the proof that you need to demonstrate that you suffered from intentional discrimination is going to prevent you from proving that you have common claims across the case, because everybody’s situation is going to be different,” Hawkins said.
In terms of Flores’ claim that he was fired because of racial discrimination after refusing to intentionally lose in his first season with the Dolphins, that commonality, and its connection to discrimination, will be very difficult to prove across the class. Even if some Black coaches have had similar experiences, it’s unlikely to be common across the proposed class, and also it will be hard to prove that Black coaches were treated differently than white coaches in regards to tanking.
“It’s very unlikely that the common practice was coaches being told to tank games—that just doesn’t seem possible as something that happened across the board to Black coaches,” said Peter Romer-Friedman, one of the attorneys who litigated Wal-Mart Stores.
That doesn’t mean, though, that class status is doomed. “The broader practice that is being challenged is simply denying jobs to Black coaches and that can be proven through the data, as well as anecdotal evidence,” Romer-Friedman argued.
Indeed, the case itself is very unlikely to simply get tossed out. “I don’t see that,” Hawkins told me. “I think there are colorable claims on behalf of this individual plaintiff and that it’s likely to proceed through some early stages of litigation.”
“Even if they lose [on class certification], he gets to proceed with his original claim and he gets to pursue discovery on that,” she added. “And he may still be able to seek discovery on other known instances” of possible discrimination.
Flores’ attorneys, while recognizing the difficulties in front of them, say they are extremely confident that they will get some sort of discovery.
“I suspect, from having done many race discrimination cases, that [the NFL] will argue that each situation is so unique that it’s not appropriate for class treatment,” one of Flores’ attorneys, David E. Gottlieb, told me. “But I think we have substantial evidence that there is a common thread amongst all the people that have been treated this way, and that will bear itself out in discovery.”
There’s clearly a predicate for this case based on all the data, all of the information we have in the case. And based on that predicate, we should be entitled to discovery. And then in discovery we should compile additional evidence. … We believe that systemic discrimination, that we’ve already seen in the NFL, that everybody who watches the NFL can see, it will bear itself out in discovery.
That is where the NFL should be extremely worried. In recent years, litigants, others seeking damages in arbitration against the NFL, and even internal investigators have found a whole lot of racist sentiment being expressed in private and sometimes more openly.
Most recently, as part of an internal investigation into allegedly discriminatory practices at the Washington Commanders, it was revealed that former Raiders coach Jon Gruden had been racist and homophobic in email conversations. “Dumboriss Smith has lips the size of Michelin tires,” Gruden wrote in an email to former Commanders general manager Bruce Allen in 2011, using racist tropes to describe the head of the NFL Players Association DeMaurice Smith. (It’s worth noting that the NFL did not release all of the emails in that investigation, so it may just be the tip of the iceberg.) It was also reported last year, as part of the league’s settlement with former players over concussion-related brain injuries, that the NFL was using racist “race-norming” standards to establish whether or not a player’s cognitive ability was affected by time in the league. Race-norming claims Black players started at a lower baseline of cognitive function and should thus receive settlement money in fewer circumstances.
During the discovery phase of Colin Kaepernick’s collusion grievance alleging the NFL was blackballing him, it was revealed how Donald Trump had successfully pressured league owners to change rules around kneeling during the national anthem to stop players from expressing support for Black Lives Matter. That grievance also led to a meeting at which Houston Texans owner Bob McNair compared players protesting systemic racism in the criminal justice system to prison inmates. “We can’t have the inmates running the prison,” McNair said. (The Texans are currently considering Flores for their open head coach position, but many expect the coach to receive the same blackball treatment that Kaepernick and former NFL player Eric Reid have experienced for their protests against systemic racism.)
All of this history could have an impact on Flores’ litigation. “The litany of discriminatory and racist incidents in the NFL, whether directed at coaches or players, is relevant to the patterns and practices of discrimination that the complaint alleges in hirings, promotions, and firings,” Romer-Friedman said. Basically, if you open the window through depositions and document production on what 32 almost entirely white billionaires, a large number of whom were generous donors to Donald Trump, are saying about the mostly Black pool of employees working for them, things have tended to get very ugly, very quickly.
This is what the NFL should fear more than anything else: That in Flores’ express effort to get the league to acknowledge and rectify a history of racism in hiring and retention, he could force out a ton of ugly secrets about how the league treats its Black players and coaches, even if his litigation doesn’t result in ultimate victory.
“It’s an ambitious case no doubt,” Romer-Friedman said. ”But it’s a case that should be brought and it’s a case that I hope will pave the way for real change in the NFL when it comes to hiring Black coaches and treating them fairly.”