Can Brian Flores’ NFL lawsuit prove a ‘fake interview process’? Where it stands and what’s next
3: 50 PM ET
Kevin SeifertESPN Staff Writer
- ESPN.com national NFL writer
- ESPN.com NFC North reporter, 2008-2013
- Covered Vikings for Minneapolis Star Tribune, 1999-2008
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 said Flores’ initial claims were “without merit”, but declined to 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 options. The first is to determine if any laws were violated. The second is how the NFL will respond internally to the growing number 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. The league didn’t connect the mandate to Flores’ lawsuit. Flores deemed the whole effort a “public relations stunt”. “
Will there be further efforts by the NFL to improve its diversity hiring policies for coaches and managers? Six minority head coaches are currently employed by 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 invited others to join him in the lawsuit to share their stories about “systemic racism” in the NFL. Wilks, Horton were the first to sign up.
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 look at each track with the help of sources from the league and N. Jeremi Duru (a professor at American University’s Washington College of Law) and former counsel to Fritz Pollard Alliance, which advocates diversity in the NFL. Duru said Flores’ suit was “a strong complaint” that did not “throw spaghetti at the wall” or “set out to make waves in media.” Duru spoke in February after the initial filing. “
What’s new in the amended complaint?
There’s a lot. First, Flores claimed that the Texans removed him from consideration for their job as head coach 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 claimed it was a “fake job interview process”, a term that seems to have put the Titans as well as 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. “
What exactly is a ‘sham interview’?
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 stated that Brian Flores arrived late for a head-coach interview in
Domonique Foxworth breaks down the Steelers hiring Brian Flores as linebackers coach.
Was Horton’s interview with the Titans a sham?
That’s what he alleges, and it appears to be supported by Mularkey’s account. Horton claimed that the Titans asked him for an interview on one-day notice in an “orchestrated effort to make it seem like the Titans had complied the Rooney Rule and otherwise have given an equal opportunity Black candidates so that the team could announce their premade decision to hire Mr. Mularkey. “
Horton was notified of his decision by a call shortly after the interview. Mularkey later revealed that he was told he would be hired even before Horton interviewed.
According to the lawsuit: “The Titans affirmatively misrepresented to Mr. Horton that he had a legitimate chance at the Head Coach position. The Titans withheld information from Mr. Horton as well as omitted material information, namely that the interview was illegitimate. Also, Mr. Horton had already made a decision to hire Mr. Mularkey before Mr. Horton’s interview. The NFL stated in a statement to ESPN it had not been aware of Mularkey’s podcast interview.
Are ‘sham interviews’ illegal?
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. Duru said that plaintiffs have two options at this point. They can either claim “disparate treatment,” which requires proof that there was intentional discrimination. They could also claim “disparate treatment,” which requires proof of intentional discrimination.
How does Wilks’ situation fit in?
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. The discriminatory treatment of Mr. Wilks is part of the ongoing pattern and practice in discrimination in the NFL regarding the NFL’s head coach and coordinator, executive hiring, and employment decisions. “
What does it mean that three coaches are now involved?
While the individual allegations are unique, they appear to help create a sturdier pattern of behavior to support Flores’ initial claims. The amended complaint also highlights the experiences of many other Black NFL coaches from Jim Caldwell, Kris Richard, and Teryl Austin, even though they are not part of the class action.
So when does the trial start?
It doesn’t work quite like that. The standard NFL contracts require that disputes be resolved through private arbitration and not 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 is not resolved, the court would order discovery. This allows each side to see the documents that the other has. Duru stated that if Duru can overcome a motion for dismissal, he will be able to establish more concrete connections to a racially discriminatory aspect of the individual claims. “
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. Although the timeline is not known at this stage, it is possible to start significant legal proceedings in meaningful ways within months.
The Rooney Rule legislates interview policies, but is there really any way to force owners to make diverse hires?
That’s the central despair of advocates in this space, which has devolved into a split screen of sorts. Roger Goodell, the NFL commissioner, and other league executives have publicly called 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. It seems that there may be a racial undertone to what we have seen. “
Flores’ lawyers used other public statements Vincent made as well as Jonathan Beane’s as support evidence in the case. 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. In essence, the complaint requires owners to change because they are illegally acting.
“He’s asking for unspecified damages and also hard-core systemic reform,” Duru said. If he succeeds, there will be court-ordered systems reform that could eventually produce the changes that advocates in this area have sought for years. It is very unfortunate that this lawsuit came to an end, as the arguments Brian is making are not new. But there has been no consistency in the progress.
“His lawsuit cites incontrovertible evidence to show that the league’s equal opportunities initiatives were deliberately and openly ignored. Although we have seen strong arguments in the past that this has occurred, there has never been such a paper trail. “
What is Flores seeking?
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
Flores was hired by the Steelers. Did that prove his claims?
In a word, no. Duru stated that it would not “change his core argument” prior to the hiring. “
Flores’ allegations are both specific and general. Flores’ allegations about Flores at another franchise would not be changed by a job as an assistant coach for one franchise. It would not materially alter the pattern of firings and hirings described in the complaint.
After Flores was hired by the Steelers, Douglas H. Wigdor stated that the lawsuit would continue.
” While Flores is now focusing on his new position and will continue his class action against race discrimination so that the NFL can make real changes,” Wigdor stated in a statement.
Is it illegal to pay, or offer to pay, coaches money to lose games?
Duru did not rule out that possibility, especially as it relates to sports gambling. “If any one were to find out that an owner paid a coach or player to lose,” he said, “then it open up all kinds of possibilities.” In the amended complaint, Flores accuses Ross of violating Section 103 of the Sports Bribery Act. This makes it illegal to “any scheme in commerce in any way to influence, in whatever way, any sporting contest by bribery” and that Ross knew the purpose of such a scheme was 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. Duru stated that the possibility that owners are paying coaches to lose “would indicate that we don’t have the product that we thought we had.” “
The league policy applies to all league members, owners included. It states that ownership and management of clubs or leagues have been held to a higher standard than other league members and will be subjected to greater discipline if violations of the personal conduct policies are made. “
Flores stated at the time that it would not be respectful to try to win games.
But didn’t the NFL say the allegations were ‘without merit’?
It did, but that phrasing was in response to a lawsuit. The NFL statement stated that there was no merit to the accusation that laws had been broken.
To be clear, the NFL is investigating Flores’ allegations against Ross through its in-house investigation team, which is led by Lisa Friel, special counsel for investigations. Commissioner Roger Goodell stated last month that there is no set time for the investigation to be completed, but he promised 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 NFL to ignore 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.
So what could happen to Ross?
The NFL has issued discipline to multiple owners in recent years, via fines and suspensions. It has been criticized for its relative leniency, lack of transparency behind previous investigations, and final punishments, most recently with Dan Snyder, the Commanders, and owner. The NFL stated that Snyder would hand over the day-to-day operations of the franchise to Tanya for an unspecified time. The team was also fined $10 million. The big question is whether Ross would be forced to sell the team by the NFL. Although we can’t say for certain, there is no precedent 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.
Is Ross’ alleged offer more common than we realize?
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 wins the first round. This is the first time such an accusation has been made against an owner. The NFL’s constitution prohibits any contract employee from being paid off the books, regardless of whether they are a coach or player.
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.
If it’s already against the rules, what can be done?
One option is to consider the NBA/NHL’s lottery for first-round picks. Although the lottery is weighted to favor the teams with the worst records, there is no guarantee that the worst teams will be selected for the top picks.
Finally, what about the tampering accusation?
According to Flores, Ross set up a “chance” meeting in 2020 with a “prominent quarterback” who was under contract with another team. Flores was not present at the meeting and did not reveal the identity the quarterback.
Setting up meetings with contracted players would be against the NFL’s anti tampering policy. However, league sources say that innocuous conversations and chance meetings happen often. 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. Flores claimed that he was treated in contempt by Dolphins because he refused to tamper with the tank.
We’re still waiting on a legal response from the NFL. It will eventually release its findings and issue discipline if necessary. It’s possible that more coaches and other members of 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.
The author of 5 books, 3 of which are New York Times bestsellers. I’ve been published in more than 100 newspapers and magazines and am a frequent commentator on NPR.