This article was originally featured in our All Rise newsletter on March 28, 2022. For more legal content and news, follow the link to subscribe.
Miami Dolphins former head coach Brian Flores’ class-action racial discrimination suit against the team and the National Football League is among the highest profile court cases involving the country’s richest and most popular sports league.
In a case filed in a New York federal court, Flores alleges a pattern of racial discrimination in the hiring and firing of head coaches. The NFL recently named former U.S. Attorney General Loretta Lynch as its lead defense attorney on the case.
Donald Maurice Jackson, a Montgomery, Alabama-based attorney, Principal of The Sports Group law firm and Adjunct Associate Professor of Sports Law at Cumberland School of Law, has deep experience in litigation at the intersection of sports and race. He thinks the merits of the case are fairly open and shut. He says the scarcity of minority coaches, their firing in spite of being more successful than their white counterparts and the fact that the NFL had administered intelligence tests on players that assumed blacks had lower cognitive ability paint a pretty clear pattern of racial discrimination.
“The NFL’s discrimination against this coach and other coaches of color creates a cause of action under 42 U.S.C. § 1981, a codification of the Civil Rights Act of 1866,” he says flatly.
For its part, the NFL maintained in a statement that the suit is “without merit.” But in a recent press conference, NFL Commissioner Roger Goodell conceded that “we need to find better solutions and better outcomes. Let's find more effective policies.”
Because Flores’ employment contract, like many in sports and elsewhere, includes an arbitration clause, the case may eventually be headed not to a trial before a jury or a federal judge but rather an arbitration panel. And Jackson is deeply suspicious about the fairness of that system for plaintiffs of color.
“That doesn’t necessarily mean that Flores loses,” he says, pointing to an $11-million arbitration award won earlier this year by Kevin Ollie, former basketball coach at the University of Connecticut. “But it changes the dynamics of the case. It limits discovery. It even, in my opinion, lessens the likelihood of punitive damages.”
Jackson goes on to note that “the whole idea of arbitration as far as defendants are concerned is that it will streamline litigation, streamline discovery, document production, depositions and limit litigation costs. That’s entirely true. However, it also reduces the rights that are afforded the plaintiffs, and quite often those plaintiffs are minorities or poor.”
John Ettorre is an Emmy-award-winning writer, based in Cleveland. His work has appeared in more than 100 publications, including the New York Times and the Christian Science Monitor.