“In certain critical ways, the NFL is racially segregated and is managed much like a plantation.”[i] Just weeks before the 54^th Superbowl, former Miami Dolphins Coach, Brian Flores, filed a class action complaint in the U.S. District Court, Southern District of New York, alleging the discriminatory hiring practices of the National Football League (“NFL”). Seventy percent of NFL athletes are Black, whereas only three percent of head coaches are Black. This jarring contrast displays a lack of diversity among NFL leadership positions, despite the 2003 enactment of the Rooney Rule.

In 2001, Tony Dungy and Dennis Green, two Black head coaches, were fired from their respective teams despite leading those teams into the playoffs during multiple seasons. Frustrated with the lack of Black coaches who obtain—and retain—head coaching positions, Dungy and Green sought the counsel of civil rights activists and attorneys, Cyrus Mehri and Johnnie Cochran Jr., which caught the attention of then Pittsburgh Steelers owner, Dan Rooney. Rooney was well known for his attempts to foster diversity within the NFL. Cochran, Rooney, and Mehri brought all NFL owners together and collectively voted to implement the Rooney Rule.[ii] The Rooney Rule encourages best hiring practices by providing guidelines for the interviewing of head coaches, general managers, and other front-office positions. Under the Rooney Rule, NFL teams are required to interview at least one ethnic minority candidate for head coaching positions and the rule expanded in 2009 to include general managers and equivalent front-office positions.[iii]

Despite the enactment of this rule, the number of Black head coaches remains the same as it was in 2003—only two—Mike Tomlin of the Pittsburgh Steelers and Lovie Smith of the Houston Texans.  This is in part due to several loopholes that franchises use to avoid compliance with the Rooney Rule. For example, there is a common clause in assistant coach contracts which automatically promotes a current assistant coach to head coach if the position becomes vacant. No interview process would be required given that it is an automatic promotion. Therefore, when the assistant coach who is not a minority is automatically promoted to head coach, the entire purpose of the Rooney Rule is subverted. Such a clause is even more problematic considering that the Rooney Rule is not applicable to assistant coach hirings. Franchises may hire an assistant coach—free from any affirmative action type restrictions—by guaranteeing a future promotion to head coach, thereby avoiding any Rooney Rule constraints.[iv]

Additionally, NFL franchises are required to interview minority candidates, but no part of the rule mandates the hiring of such candidates.  Thus, there are no safeguards in place to prevent a franchise from interviewing a minority candidate who they have no intentions of hiring, simply to satisfy the Rooney Rule.

This is exactly what happened to Brian Flores. Anticipating an interview with the New York Giants, Flores received a text from New England Patriots Head Coach, Bill Belichick, congratulating him on being offered the position. Flores questioned Belichick since Flores had yet to interview for the job, realizing Belichick confused Flores with Brian Daboll, a White man, who later would be offered the job. This became the final catalyst leading Flores to file his complaint, citing the embarrassment of sitting through an interview for a job he already knew he would not get.[v]

The question remains: what can the NFL do differently to enhance the diversity of their leadership staff and avoid discrimination lawsuits like the one filed by Flores? There are several viable proposed solutions, including suggestions from civil rights groups, such as the NAACP, to abolish the Rooney Rule and replace it with a procedure that holds the NFL more accountable for their actions. Additionally, the National Action Network (“NAN”) plans to approach states and municipalities to ask them to stop tax incentives and public funding to stadiums whose teams fail to diversify their leadership staff.[vi]

Despite the validity of these proposed solutions, each solution fails to recognize the largest underlining issue with the lack of diversity in the NFL. There are currently no Black team owners and only three Black General Managers. It is no secret that NFL owners hold the power, along with the General Managers, within the association, positions responsible for hiring not only leadership positions within their own franchise but positions as crucial as Commissioner of the NFL. Coaches—and especially players—have no say in who is hired, despite being the most instrumental part of not only the game but the NFL’s profits.  NFL Players are predominantly Black but retain no representation among the tables where decisions are being made.

One way to foster change to the discriminatory hiring practices of head coaches is to increase the number of Black team owners. However, this solution is not easily implemented, as teams are rarely available for purchase and when they are available, their prices are prohibitively expensive. Moreover, there is little to be done to compel the NFL to only sell teams to people of color. Therefore, diversifying NFL team ownership becomes less of a solution and more of a long-term goal of the association.[vii]

To effectuate change immediately, the NFL should restructure their National Football League Player’s Association (“NFLPA”) to mirror the National Basketball Player’s Association (“NBPA”). Under its current model, the NFLPA acts to assist with any grievances players might have, including concerns with wages, health issues, player’s images, and retirement benefits. The NFLPA does not appear to address any issues regarding diversity. Comparably, the National Basketball Association (“NBA”), an association committed to diversifying its leadership staff, created the NBPA, a union comprised of current players who attend important meetings and speak on behalf of their team. Elected players attend meetings with positions such as owners and general managers and voice concerns regarding pending decisions before the decisions are finalized, including decisions regarding diversity or hiring processes. The NFL would benefit from taking a more proactive approach, like the NBA, and using its NFLPA to empower the voices of players and bring diversity to the decisions being made.

The final alternative—and potentially strongest solution—is to hold NFL team owners legally accountable for their discriminatory actions. Lawsuits are costly and time-consuming, but litigation is society’s great equalizer, and it was the looming threat of litigation that prompted the enactment of the Rooney Rule.

NFL players are predominantly Black and often, at least one-third of the time, coaches previously played in the NFL. In addition, most coaches played football in college, where 55% of football players in NCAA Division one schools are Black students. In essence, there is a one hundred to one chance, based on the demographics of previous NFL and NCAA football players, that all NFL coaches would be White. Moreover, statistics show that Black coaches lead their teams to the playoffs 40% of the time, compared to White coaches who reach the playoffs 35% of the time. Black coaches win, on average, 1.1 more games per season than White coaches. This indicates the issue is not whether there are enough qualified Black individuals to be hired as coaches but rather a pro-White bias in hiring. With less than thirty Black coaches over the past twenty years—the first Black coach being hired in 1989—it is unlikely that Brian Flores is the only person who has experienced the NFL’s discriminatory practices. It is not uncommon for owners to ask coaches to “tank” a season to secure a better draft position, a move that is often considered wise for White coaches but tarnishes the reputation of Black coaches. When a Black coach diverges from such requests from owners or general managers, it leads to them being fired, an action warranting a discriminatory lawsuit—which is often not filed.[viii]

Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to refuse to hire or fire an individual on the basis of their race. Title VII provides two avenues for discrimination claims: disparate treatment and disparate impact. Under disparate treatment, the plaintiff must show the employer’s motive or intent was discriminatory but under a disparate impact claim, the plaintiff must show how the employer’s practices are discriminatory. In an association “rife with racism,” there is evidence to suggest that the NFL’s practices are disparately impacting Black employees, especially coaches.[ix] To rebut a disparate impact claim, an employer can show that the practice is job-related and in NAACP v. N. Hudson Reg’l Fire & Rescue, the Court found that there was no job-related reason for the disparate impact discrimination of Black firefighters. For the NFL, where many previous college and professional level football players are Black, there will be a challenge showing that any disparate impact discrimination is related to the job.[x]

This is not to say filing lawsuits against the NFL is an easy task.  Former quarterback Colin Kaepernick claimed he was not signed after refusing to stand for the National Anthem and following a lawsuit which stated those claims, Kaepernick was unable to find work within the NFL. Players and coaches who challenge the NFL’s discriminatory practices face being ostracized by the association. Unfortunately, until the NFL experiences the burden and bitter reality of unrelenting legal accountability, change is unlikely.

[i] Flores v. National Football, No. 1:22-cv-00871 (S.D.N.Y. Feb. 2, 2022).

[ii] Julia O’Connell, The True Origins of the Rooney Rule: Part 1, Global Sports Matter, (Feb. 5, 2021), https://globalsportmatters.com/listen/2021/02/05/the-true-origins-of-the-rooney-rule-part-1/.

[iii] The Rooney Rule, Football Operations, https://operations.nfl.com/inside-football-ops/diversity-inclusion/the-rooney-rule/ (last visited Feb. 13, 2022).

[iv] Megan Cahill, Time to Level the Playing Field: Revisiting the Rooney Rule and the Lack of Coaches of Color in the NFL, Am. Univ. Bus. L. Rev., https://aublr.org/2021/02/time-to-level-the-playing-field-revisiting-the-rooney-rule-and-the-lack-of-coaches-of-color-in-the-nfl/ (last visited Feb. 13, 2022).

[v] Flores v. National Football, No. 1:22-cv-00871 (S.D.N.Y. Feb. 2, 2022).

[vi] Jonathan Franklin, Civil Rights Leaders Call on the NFL to Replace the Rooney Rule, NPR (Feb. 7, 2022), https://www.npr.org/2022/02/07/1078999857/nfl-rooney-rule-civil-rights-leaders.

[vii] Mike Florio, NFL’s “Broken System” of Minority Hiring can be Fixed in only Two Ways, PFT (May 25, 2020) https://profootballtalk.nbcsports.com/2020/05/25/nfls-broken-system-of-minority-hiring-can-be-fixed-in-only-two-ways/.

[viii] Michael Harriot, Black coaches are better: A statistical breakdown of the NFL’s racism, The Grio (Feb. 11, 2022), https://thegrio.com/2022/02/11/black-coaches-statistical-breakdown-nfl-racism/.

[ix] Flores v. National Football, No. 1:22-cv-00871 (S.D.N.Y. Feb. 2, 2022).

[x] N.A.A.C.P. v. N. Hudson Reg’l Fire & Rescue, 665 F.3d 464, 470 (2011).