According to Jim Trotter, an NFL.com Columnist, “the National Football League has a long and troubled history when it comes to race and head coaches” and of the thirty-two (32) NFL teams, “13 franchises had never hired a Black non-interim head coach and 11 others had only installed one.”
American professional sports have an interesting history in Court and in Congress. Major League Baseball, for example, is exempt from anti-trust law because the Supreme Court Justices who decided Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs really enjoyed the sport and did not want to upset fans by putting limits on America’s national past time. This seems silly, but many would agree that on the law the Court there was wrong, and came down with its decision to keep the fans happy, but that did not stop Congress from codifying the anti-trust exemption. Today, however, a different league, the National Football League, is being brought into Court by Brian Flores, ex-head coach of the Miami Dolphins, following his allegations of disparate treatment in hiring Black head coaches.
Typically, it is quite hard to get professional sports leagues into Court because of collective bargaining agreements (“CBA”), which set terms and agreements and have provisions stating that disputes of those terms and agreements must be arbitrated, meaning they will be decided by a private panel, and not allowed in Court. The case by Brian Flores, a class action, in fact, is not subject to the CBA despite being tied to the conditions and terms of employment set out in the CBA because employees cannot contract to waive their right to be free of discrimination. Because it is not covered by the CBA, the NFL is subject to federal jurisdiction and has chosen the Southern District of New York as the forum.
Flores’ extensive complaint is rife with evidence and statistics regarding the low number of Black NFL coaches. For one, the complaint notes that of the thirty-two (32) NFL teams, only one employs a Black head coach. Counterpose that to player make up; approximately 70% of all NFL players are Black. The complaint alleges that the NFL has discriminated against Black head coach applicants in violation of §1981, but does not bring allegations based on a common discrimination statute, Title VII. §1981 is more explicitly tied to race, and, specifically, makes illegal discriminatory preference given to whites in contract formation. The complaint does, however, mention an intent to bring in Title VII claims at a later time, once the Equal Employment Opportunity Commission has fulfilled the administrative pre-requisites to allow Flores to bring a Title VII claim.
Statistically, Flores has made a great showing of racial disparity, and this discourse is not new, Lebron James in 2018 said that NFL owners are ‘old white men’ with a ‘slave owner mentality.’ This sentiment drew some criticism then, but seems to have been vindicated with time, though the outcome of Flores’ case is yet to be seen. At the very least, Flores’ complaint exposes a pattern and practice of discrimination that, whether purposeful or not, should be reversed.
Under §1981, a plaintiff has the burden of showing that non-white “persons” are not given the same opportunity to “make and enforce contracts” as white “citizens.” In this particular case, the distinction between persons and citizens is not really at issue. There are two main claims brought in the complaint, one that Black applicants have not had the same opportunity as white applicants to contract to be head coaches of NFL teams. That is the ‘make,’ but there are also claims on the ‘enforce contracts’ where Flores claims that the NFL has engaged in “discriminatory retention practices and/or termination decisions.” Essentially, Flores claims that Black applicants have a higher bar in actually getting the job, but once hired, they face more discrimination and more scrutiny which, ultimately, leads to greater levels of discipline and termination for Black coaches.
As noted above, Flores’ complaint is a class action, and brings in, as class members, all Black applicants for head coaches, offensive and defensive coordinators, quarterback coaches, and general managers. It seems likely that the Court will not certify this class, and will hold that the positions are not so similar as to entertain a class action, but that will not revoke the merits of any claimant’s accusations of personal discrimination. Regardless, Flores’ complaint has brought about significant media attention, and serves to show a growing discontent with the disparity between Black and white coaches and applicants.
If you feel you have been discriminated against at work, contact one of our employment attorneys today.
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