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NFL lawsuit: Proving discrimination will be an ‘uphill battle,’ law professor says

American University law professor and author N. Jeremi Duru joins Yahoo Finance's A Time For Change to discuss Brian Flores's lawsuit against the NFL, hiring people of color in the league, and the lack of diversity among NFL coaching staff.

Video Transcript


ALEXIS CHRISTOFOROUS: Welcome, everyone, to "A Time for Change." I'm Alexis Christoforous, this along with Marquise Francis. As the NFL gears up for Super Bowl [? LVI ?] this Sunday, the league continues to deal with fallout from the explosive class action lawsuit filed by former Miami Dolphins head coach Brian Flores.

Now Flores was fired last month, despite posting two straight winning seasons. He is suing the league and three teams, the Miami Dolphins, the New York Giants, and the Denver Broncos, alleging discrimination and racism in hiring practices. And that's despite the NFL's long standing Rooney Rule, requiring teams to interview candidates of color for head coaching and senior positions.

MARQUISE FRANCIS: And after initially rebutting the claims, saying they were without merit, the NFL and its Commissioner, Roger Goodell, have since acknowledged the state of the NFL's locker rooms, calling the lack of diversity, "unacceptable," adding, "we understand the concerns expressed by Coach Flores and others this week."

Here to talk about the latest in the Flores case and what the NFL's about-face means is N. Jeremi Duru, Professor of Law at American University and the author of "Advancing the Ball, Race Reformation in the Quest for Equal Coaching Opportunity in the NFL."

Professor Duru, thank you so much for joining us today.

N. JEREMI DURU: Thanks for having me. Look forward to it.

MARQUISE FRANCIS: Great. And so just to jump into things, in the week since Flores announced that lawsuit, two more minority head coaches have been hired by the NFL. Both Lovie Smith, a Black man in Houston Texans, and also Mike McDaniel, a mixed race man in Miami Dolphins. So was this a little bit of cause and effect? And does the fact that two more head coaches change the optics at all of this Flores lawsuit?

N. JEREMI DURU: No, so there' no way to know if it was cause and effect, right. There's no way to prove it one way or another. What we do know is that there has been, over the history of the NFL's efforts to increase people of color among the ranks of head coaches, there have been fits and starts, situations where numbers have gone way up and then they've come way down, have gone up and there's been backsliding.

So I don't think too much should be taken from these two hires. Really thrilled about them, very happy for Coach McDaniel, very happy for Coach Smith. I don't think anybody should conclude that as a consequence of these two hires, Flores' suit is irrelevant or that the problem is solved.

ALEXIS CHRISTOFOROUS: Professor, from the moment this class action lawsuit was filed, it seems we keep hearing the same thing, the burden of proof lies with Brian Flores. We've seen the text messages that he referred to between himself and Coach Belichick. How difficult a battle will this be for him to prove what he is alleging?

N. JEREMI DURU: So it'll be, I mean, it's an uphill battle. It's always an uphill battle when you're challenging an employer with respect to employment discrimination, because courts tend to be rather deferential to employers with respect to their subjective decision making as to who's right for the job, who has that it, that certain quality. And so it'll be a uphill battle.

I mean, what Flores has done is quite effectively laid out in this complaint double standards and headwinds that have been a real problem for African-American head coaches over the course of many, many years. And then he lays out his own experiences, as you mentioned, in Denver, in Miami, in New York. And he wants to wrap those experiences around the broader nationwide, league-wide double standards and bring a racial discrimination claim.

He'll have to prove to the court that his particular instances, in New York, in Miami, in Denver, were race based. That'll be his challenge.

MARQUISE FRANCIS: And Professor, as much as the government has rules in place to protect against monopolies, it feels as though the NFL is one in and of itself. They make their own rules and they govern themselves. So how much could they actually stand to lose in this lawsuit?

N. JEREMI DURU: Oh, I think they could stand to lose a great deal. I mean, I think they could stand to lose the appearance of being a league that is committed to diversity in a world that is day by day, it seems, week by week, month by month recognizing the need for an exploration of diversity and the commitment to equal opportunity. So that's one thing they could lose.

They also could lose-- there's something else that Coach Flores mentioned in his lawsuit, he talked about an allegation that the owner of his club, the Dolphins, when he was the coach, asked him to lose games on purpose in exchange for $100,000 per game lost. And so that allegation is now part of the lawsuit. And if the NFL loses the sense among viewers, among fans, that each competition really is about every given Sunday anybody can win, then the product they're offering is very, very different. And I think they really could be in a situation where they lose market share to other major sports leagues in the country.

ALEXIS CHRISTOFOROUS: I'm glad you brought that up, because I feel like that's getting lost in the sauce a little bit, this allegation, which is a serious allegation, Flores says that ownership was trying to incentivize him to throw games, in essence to guarantee that the team would get a better top draft pick. How much does Flores perhaps leave himself open to a defamation case here, if he can't prove it effectively?

N. JEREMI DURU: If you can't prove it effectively, then there's always a possibility. But truth is a defense. And so unless it can be made clear that there is no truth in what he said, I think he's pretty safe with respect to some sort of a counterclaim. And allow me to add that I think his lawyers would have vetted that out very carefully before they put that allegation in the complaint.

MARQUISE FRANCIS: We would absolutely hope so. Given that this is a class action lawsuit, that means other people can jump in. Thus far, no one has necessarily raised their hand fully and folks have been rather resistant. What do potential plaintiffs in this case also have at stake? Because we've seen what's happened in the past by Colin Kaepernick allegedly being blackballed from the league for also standing up. Is there also a sentiment that that could also be the case for others that jump in?

N. JEREMI DURU: Yeah, without question. You know, I think let's just focus for a moment on how, whatever you feel about Brian Flores' lawsuit, how brave it was to bring the suit. As I said, it's well recognized in the community that there are double standards, and there have been double standards for years with respect to getting a head coaching job for African-American head coaching candidates. So it's not that these statistics haven't been around. It's that nobody has decided to come forward and assert the case publicly and legally. And so Flores has done that, and it took tremendous courage. And it'll take courage from others to join the class.

There is the risk that you might not be able to coach again in the league. We hope that's not the case. We know that Brian Flores wants to coach again. We know that he loves to coach. I hope that it won't be a situation where he's viewed as no longer a viable candidate. But that's always a risk with a suit like this. And I think others joining the class face a similar risk, unfortunately.

ALEXIS CHRISTOFOROUS: We know that Flores was one of three people up for the head coaching job with the Texans. We know that didn't work out. They actually wound up going a whole different way and decided to hire from within. But when you look at other cases like Flores' do you believe that he has sort of committed career suicide, and may he just have to look outside football for his next career move.

N. JEREMI DURU: Again, you know, you would really hope not but it's possible. I mean, we could spend a couple of hours exploring racial discrimination in American sport over the course of the last several decades. And we could point to many people who have challenged leagues with respect to racial discrimination and who have not found themselves with jobs in the leagues again. So that possibility is there. Really hoping it doesn't come to pass here, because Flores wants to coach and he's a great coach and the league is better with him in it as a coach.

MARQUISE FRANCIS: And Professor, I just want to finish up, last question here. In your book, "Advancing the Ball," I'm curious, what were your findings? And because of those, what is the actual-- do you feel like Flores has a strong case?

N. JEREMI DURU: So the findings of the book, the book basically explored the effort generally to increase diversity among head coaches of color. And the book actually focused heavily on the early years of the Rooney Rule. And in the early years of the Rooney Rule, it was very, very effective at increasing diversity in the league.

One of the challenges that we've seen over the course of the last, I don't know, five to six years, is that it seems as though clubs are less willing, less interested in implementing the rule in a meaningful and intentional and deliberate manner. And when clubs haven't done that, the league has not come down on them with punishment. And so the consequence, I think, is a lot of people feel like the rule doesn't work. It's not that the rule doesn't work and that the rule's conceptually weak, the rule is conceptually strong. But the clubs have not implemented the rule. That's, I think, what we're seeing. And that is, among other things, what's led Brian Flores to sue.

MARQUISE FRANCIS: Absolutely. N. Jeremi Duru, Professor of Law at American University. Thank you so much for your insight this afternoon.