As football fans know, 2022 has been a turbulent year already for Brian Flores, one of the few Black coaches in the National Football League (NFL). In January, after two winning seasons, the Miami Dolphins dismissed him as head coach two years before his contract was to expire. On Feb. 1, Flores filed a class action lawsuit against the NFL and its teams for racial discrimination in employment.
And on Feb. 19, the Pittsburgh Steelers introduced him as their new senior defensive assistant and linebacker coach, his current job.
In the complaint – filed on the first day of Black History Month – and in public statements, Flores has explained that he hopes the suit will spark a societal discussion, shine a light on the problem, and bring real change.
Substance of the lawsuit
The original complaint, filed in U.S. District Court in the Southern District of New York (SDNY), is comprised of page after page of allegations detailing a history of disturbing discriminatory employment practices and structural racism against Black managers, coordinators, coaches, and applicants for these positions. All this despite Black athletes making up 70% of players.
Flores alleges violations of federal (Section 1981 of the Civil Rights Act of 1866), New Jersey, New York state and New York City anti-discrimination and civil rights laws. He also intends to file a complaint with the Equal Employment Opportunity Commission (EEOC) and thereafter amend the complaint to add a Title VII (of the Civil Rights Act of 1964) claim.
The NFL and its teams have denied the allegations of the suit, some of which include:
- The league’s Rooney Rule requires teams to interview “minority candidates” for head coach, coordinator, and other high-level jobs. Flores describes these as “sham” interviews in which management often already has chosen other candidates and only holds the interviews to comply with the rule. Flores alleges he experienced two sham interviews where he believes there was no intention to consider him seriously as a candidate.
- The teams engage in discriminatory retention and firing practices. Black coaches receive less favorable terms of employment, including in compensation, and less leeway for growth within their jobs, being fired more quickly for performance issues than their white counterparts.
- Flores contends his firing from the Dolphins was in retaliation for his refusal to engage in behavior that would have violated League rules at the request of management.
The suit asks for a jury trial and these remedies:
- Punitive damages to punish the defendants for acting with malice
- Compensatory damages to reimburse plaintiffs for “economic damages, loss of opportunity, loss of reputation, and mental anguish …”
- Injunctive orders that the League take specific actions that would combat racial discrimination in its workplaces
- Declaratory relief in which the court would make official findings and conclusions that the defendants’ conduct was illegal
- Certification of the plaintiff class
Several sources report that two additional Black former NFL coaches, Steve Wilks and Ray Horton, have joined Flores’ suit as plaintiffs. The amended complaint contains additional allegations from Flores as well as specific bias allegations from the new plaintiffs, according to The New York Times.
Arbitration clauses in employment contracts
In our last blog post, we wrote about the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, a new federal law that ends mandatory arbitration clauses in sexual harassment and sexual assault disputes. It transforms by operation of law mandatory arbitration clauses into optional ones at the discretion of a person making sexual assault and harassment allegations. It applies to disputes that arise after March 2, 2022, even if the parties executed the agreement previously.
Many question whether this should have applied to all kinds of employment discrimination claims, including those based on race like Flores’ suit. A bill that would do this for employment, civil rights, consumer, and antitrust disputes has passed the U.S. House of Representatives and is now before the Senate – the FAIR Act (Forced Arbitration Injustice Repeal Act). Brian Flores has spoken out publicly in support of this legislation even though, if passed, it will likely not apply to his dispute with the NFL.
NFL employment contracts use mandatory arbitration clauses widely, including those Flores signed. If the court enforces them in the present lawsuit, it could keep the dispute out of court and send it instead to arbitration. Arbitration is a private dispute resolution model using a private arbitrator (a private person functioning like a judge) and usually keeping the matter confidential and out of the public eye. During the #MeToo movement, these clauses were widely criticized for allowing allegations of sexual harassment and assault to be kept secret, allowing would-be abusers or harassers to stay on the job or within their professions with opportunity to reoffend.
Flores has publicly urged NFL commissioner Roger Goodell not to enforce it in this case and to let the lawsuit go forward. Flores wants the dispute resolved publicly and transparently before a jury, rather than secretly in arbitration, as he believes it would more likely spur change.
However, according to Pro Football Network on April 21, the NFL and defendant teams have informed the court they will ask for the entire lawsuit to be arbitrated.
We will continue to monitor this important race discrimination suit with an eye toward how its legal issues could impact Kentucky employers, including issues of forced arbitration.