Can Brian Flores’ NFL lawsuit prove a ‘fake interview process’? Where it stands and what’s next

April 7, 2022 admin

Brian Flores discusses text messages he received from Bill Belichick and how he felt going into an interview with the Giants when they had allegedly already decided on a coach. (2:16)

Former Miami Dolphins coach Brian Flores has amended his class-action lawsuit against the NFL and its teams, accusing the Houston Texans of retaliation and adding allegations from longtime coaches Steve Wilks and Ray Horton regarding sham interviews, incentivizing losses and pressure to improperly recruit players.

The league has said Flores’ original claims were “without merit” but declined comment on Thursday’s amended claim. Every one of the six teams involved — the Dolphins, Texans, New York Giants, Denver Broncos, Arizona Cardinals and Tennessee Titans — has denied wrongdoing.

There are two paths here to pursue. The first, of course, is whether any laws were broken. The second is whether the NFL will react internally to the growing list of allegations.

Since the lawsuit was filed in February, the NFL has created a diversity advisory committee and also levied a new requirement for every team to hire a minority offensive assistant coach. But the league did not connect the mandate to the lawsuit, and regardless, Flores called the entire effort an “obvious public relations stunt.”

Will the NFL make further attempts to strengthen its diverse hiring policies for coaches? At the moment, there are six minority head coaches in the NFL. Would it discipline Dolphins owner Stephen Ross if he, as Flores alleges, offered $100,000 bonuses to lose games in an effort to secure the No. 1 pick in the 2019 draft?

Flores has since joined the Pittsburgh Steelers as a senior defensive assistant/linebackers coach. He had previously invited others to join the lawsuit to share stories of “systemic racism in the NFL.” Wilks and Horton are the first two to join.

The league has said that “diversity is core to everything we do,” and added that Flores’ claims are “without merit” from a legal perspective, although it is conducting its own investigation into the allegations surrounding Ross.

Let’s consider where each track could go in the coming weeks and months, with the help of league sources as well as N. Jeremi Duru, a professor at American University’s Washington College of Law and a former counsel to the Fritz Pollard Alliance, which advocates for diversity in the NFL. Speaking in February after the initial filing, Duru called Flores’ suit “a strong complaint” and not one that “throws spaghetti at the wall” or is “set forth just to make waves in the media.”

There’s a lot. First, Flores accused the Texans of removing him from consideration for their head-coaching job in “retaliation” for filing the lawsuit. He did not provide any direct evidence other than to say it was “clear” based on the timing of his disqualification and the ultimate hiring of Lovie Smith.

Second, Wilks accused the Cardinals of discrimination for firing him after one season (2018), in which his record was 3-13. Wilks compared his path to that of general manager Steve Keim, who was suspended for five weeks that season after pleading guilty to extreme driving under the influence. Wilks also took aim at Keim’s football decisions, claiming Keim drafted quarterback Josh Rosen that season instead of taking Wilks’ advice to trade up for Josh Allen. Rosen lasted one season with Arizona and Allen has grown into a superstar with the Buffalo Bills.

Third, Horton accused the Titans of violating the Rooney Rule by giving him a “sham interview” for the head-coaching job that eventually went to Mike Mularkey in 2016. The complaint included a link to a 2020 interview in which Mularkey admitted the Titans told him he had the job before Horton’s interview. Mularkey called it a “fake interview process,” a phrase that sure seems to put the Titans and the NFL on the spot.

Fourth, Flores revealed significant contemporary evidence of his original claim: a memo sent in December 2019 to memorialize “Mr. Ross’ desire to have Miami lose games.”

Flores put in a legal document what Black coaches have said privately for years, specifically that they receive job interest to fulfill the NFL’s Rooney Rule — which requires teams to interview two external minority candidates for vacant head-coaching jobs — and are not considered serious candidates for many openings. To illustrate the point, Flores stated that he received word three days before he interviewed for the Giants’ vacant spot on Jan. 27 that the job would go to Bills offensive coordinator Brian Daboll. As evidence, Flores produced screenshots of text messages from New England Patriots coach Bill Belichick, who appeared aware of Daboll’s impending hire.

In addition, Flores said that Broncos officials arrived late to a head-coach interview in 2019 and alleged they had been “drinking heavily the night before,” suggesting they did not take his interview seriously before they hired Vic Fangio, who is white.

The Giants said in a statement that “Brian Flores was in the conversation to be our head coach until the eleventh hour,” and the Broncos said the interview started on time and pointed to “notes, analysis and evaluations” that “demonstrate the depth of our conversation and sincere interest in Mr. Flores as a head coaching candidate.”

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That’s what he alleges, and it appears to be supported by Mularkey’s account. More specifically, Horton said the Titans asked him to interview on one day’s notice in an “orchestrated attempt to make it appear that the Titans had complied with the Rooney Rule and otherwise appear to have given an equal opportunity to Black candidates so the team could announce the premade decision to hire Mr. Mularkey.”

Horton received a call shortly after the interview to inform him of the decision. As Mularkey revealed later, he was told he would get the job even before Horton’s interview.

According to the lawsuit: “The Titans affirmatively misrepresented to Mr. Horton that he had a legitimate chance at the Head Coach position. The Titans also withheld from Mr. Horton and omitted material information: namely, that the interview was illegitimate and a decision to hire Mr. Mularkey had already been made before Mr. Horton’s interview.”

The NFL said in a statement to ESPN that it was not previously aware of Mularkey’s podcast interview.

Flores’ suit cites violations of federal and state civil/human rights statutes that are intended to ensure equal rights. It also reveals that he will file a complaint with the Equal Employment Opportunity Commission (EEOC), which Duru said is a prerequisite for a claim under Title VII of the 1964 Civil Rights Act.

At that point, plaintiffs have two options, according to Duru. They can claim “disparate treatment,” which requires proof of intentional discrimination. Or they could claim “disparate impact,” which requires proof that a policy or standard impacts minorities differently than others.

Wilks’ time in Arizona provides a personalized account of frequent claims of double standards for Black coaches. While he was fired after one poor season, forcing the Cardinals to pay out three more seasons of his contract, Keim was given a contract extension at the same time. Wilks’ replacement, Kliff Kingsbury, kept his job after compiling a 5-10-1 record in his first season.

According to the complaint: “Mr. Wilks is unfortunately not an anomaly or an exception to the rule. To the contrary, the discriminatory treatment towards Mr. Wilks is just part and parcel to the ongoing pattern and practice of discrimination in the NFL when it comes to the NFL’s head coach, coordinator and executive hiring and employment decisions.”

While the individual allegations are unique, they appear to help create a sturdier pattern of behavior to support Flores’ initial claims. And the amended complaint also points out the experiences of many other Black NFL coaches, from Jim Caldwell to Kris Richard to Teryl Austin, even though they have not joined the class action.

It doesn’t work quite like that. Generally speaking, standard NFL contracts call for disputes to be resolved via private arbitration rather than the judicial system. According to the amended complaint, the Dolphins have asked the league to enforce that stipulation, as the NFL has attempted to do with a lawsuit filed by former Las Vegas Raiders coach Jon Gruden, but there has been no formal filing of yet. In fact, the NFL hired a firm that includes former U.S. Attorney General Loretta Lynch to help defend against Flores’ claims.

If the case remains in the courts, it would move to discovery, which allows each side to view relevant documents in possession of the other. “If he can get past a motion to dismiss,” Duru said, “then he could indeed get more concrete connections to a racially discriminatory aspect to the individual assertions that were made.”

The NFL has managed to avoid discovery, or public disclosure of the discovery process, in several high-profile legal actions in recent years, including lawsuits filed by former quarterback Colin Kaepernick and the city of St. Louis, among others. The timetable at this early stage is unknown, but significant legal proceedings often take months to get started in meaningful ways.

That’s the central despair of advocates in this space, which has devolved into a split screen of sorts. On the one hand, NFL commissioner Roger Goodell and other league executives have pleaded publicly for change. On the other, owners make their own decisions.

Troy Vincent, the NFL’s executive vice president of football operations, has even made the public connection between disparate hiring practices and racism, saying earlier this year on ESPN+: “There is no social justice without racial justice. And what we’ve seen, potentially, it suggests there is potentially a racial undertone.”

Flores’ attorneys used other public statements Vincent has made, as well as those of NFL chief diversity officer Jonathan Beane, as supporting evidence in the lawsuit. NFL owners haven’t changed their hiring practices on their own, or with urging from Rooney Rule initiatives designed to introduce them to a diverse candidate pool they might not otherwise seek out. So in essence, the complaint demands owners change because they are acting illegally.

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“He’s asking for unspecified damages and also hard-core systemic reform,” Duru said. “If he is ultimately successful, then there will be court-ordered systemic reform that could ultimately produce the changes that advocates in this realm have been pursuing for years. It’s very unfortunate that it came to a lawsuit, because the arguments Brian is making have been made many times. But the progress has not been consistent.

“His lawsuit alleges incontrovertible evidence that the league’s equal opportunity initiatives were purposely and openly flouted. We’ve seen extraordinarily strong arguments that this has happened in the past, but there hasn’t been this sort of paper trail before.”

Flores’ original lawsuit stated he is seeking, among other changes:

Increased influence of Black individuals in hiring

Increased “objectivity” of hiring/terminating GMs, head coaches and coordinators

Increased number of Black coordinators

Incentivized hiring/retention of Black GMs, head coaches and coordinators

Transparency of pay for GMs, head coaches and coordinators

The amended lawsuit added some concrete suggestions, including:

An appointment of an independent monitor

Promotion of Black ownership

A ban of forced arbitration

In a word, no. Speaking prior to the hiring, Duru said it wouldn’t “change his core argument.”

Flores’ accusations are both specific and global. A job as an assistant coach with one franchise wouldn’t alter the facts of what Flores alleged happened at another. Nor would it materially change the pattern of hirings and firings laid out in the complaint.

After the Steelers announced the Flores hire, his attorney Douglas H. Wigdor made clear the lawsuit would proceed.

“While coach Flores is now focused on his new position, he will continue with his race discrimination class action so that real change can be made in the NFL,” Wigdor said in a statement.

Duru did not rule out that possibility, especially as it relates to sports gambling. “If anyone were to get wind of an owner paying a player or coach to lose,” he said, “then it opens up all sorts of possibilities.”

Indeed, in the amended complaint, Flores accused Ross of violating the Sports Bribery Act, which makes illegal “any scheme in commerce to influence, in any way, by bribery any sporting contest, with knowledge that the purpose of such scheme is to influence by bribery.”

But more concretely, Duru and other sources said offering $100,000 to a coach for losing games is an example of conduct detrimental to the league, which is prohibited under the NFL’s personal conduct policy. “The possibility that owners are paying their coaches to lose,” Duru said, “would mean that we don’t have the product we thought they had.”

The policy applies to everyone in the league, including owners, and states that “ownership and club or league management have traditionally been held to a higher standard and will be subject to more significant discipline when violations of the personal conduct policy occur.”

Flores said at the time that it would be “disrespectful” to try not to win games.

It did, but that phrasing was in response to a lawsuit. In essence, the NFL statement said there was “no merit” to an accusation that laws were broken.

To be clear, the NFL is looking into Flores’ allegations against Ross via its in-house investigation team, led by special counsel for investigations Lisa Friel. Commissioner Roger Goodell said last month there is no timetable for completing the investigation, but he pledged to make its findings public. Flores expanded his own claim in the amended briefing, revealing the existence of his December 2019 memo and adding that he was “routinely made to feel uncomfortable based upon his decision not to tank in order to secure the top pick in the 2020 draft.”

Indeed, it will be difficult for the NFL to brush aside this accusation. When it tried to minimize its public acknowledgment of a sexual harassment investigation in the Washington Commanders‘ workplace, the House Ways and Means committee got involved and is investigating on its own.

The NFL has issued discipline to multiple owners in recent years, via fines and suspensions. But it has drawn well-deserved skepticism for its relative leniency and lack of transparency behind the preceding investigations and ultimate punishment, most recently with the Commanders and owner Dan Snyder, whom the NFL said would cede day-to-day operation of the franchise to his wife, Tanya, for an unspecified period. The team was also fined $10 million.

The big question is whether the NFL would force Ross to sell the franchise. We can never say never, but there is no precedent for it in modern league history. Former Carolina Panthers owner Jerry Richardson sold his franchise in 2018 amid allegations of workplace misconduct, but he wrote at the time that the decision was his own.

What we know for certain is that the NFL’s system for drafting college players incentivizes tanking — losing on purpose. The team with the worst record picks at the top of each round. No owner has ever faced such a specific accusation, and paying any contracted employee — coach or player — off the books is a violation of the NFL’s constitution.

Wilks, for example, said in his complaint that he was told that Keim and Cardinals owner Michael Bidwill were upset about a late-season victory over the Green Bay Packers because it threatened the franchise’s hold on the No. 1 overall pick in the 2019 draft.

One option is to consider the NBA/NHL’s lottery for first-round picks. The lottery is weighted in favor of the teams with the worst record, but there are no guarantees that the worst teams will get the top picks.

According to Flores, Ross set up a “chance” meeting in 2020 with a “prominent quarterback” who was under contract with another team. Flores did not take the meeting, nor did he reveal the identity of the quarterback.

Setting up a meeting with a contracted player would violate the NFL’s anti-tampering policy, but league sources agree that chance meetings and innocuous conversations happen frequently. It’s best to view this allegation in the context of Flores’ effort to provide an alternative explanation for the Dolphins’ decision to fire him after the 2021 season. Combating what he said were inaccurate reports that he is difficult to work with, Flores is saying he was held in contempt by the Dolphins for refusing to tamper and tank.

We’re still waiting on a legal response from the NFL. And at some point, it will release its findings into the Ross investigation and mete out discipline if warranted. In the meantime, it’s always possible more coaches or other people from the NFL ecosystem could join Flores, Wilks and Horton. Longtime NFL coach Hue Jackson has suggested that Cleveland Browns owner Jimmy Haslam also intended to lose during the 2016 and 2017 seasons, but to date has not joined the suit.

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