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Dolphins’ Non-Transmittal of Brian Flores ‘Tanking’ Memo to NFL in 2019 Could Lead to Forced Sale

Updated: Apr 9, 2022

(Photo by Getty Images)

By Daniel Wallach

It was easy for Miami Dolphins owner Stephen Ross to be dismissive of former head coach Brian Flores' bribery and tanking allegation when it wasn't backed up by any documentary evidence or eyewitness testimony. Indeed, Ross called the allegation that he made a $100,000 per loss bribe offer to Flores "false, malicious and defamatory" in his first public statement after Flores included that bombshell allegation in his original complaint alleging racial discrimination against the NFL, the New York Giants, Miami Dolphins, and Denver Broncos.

Following that public denial, Flores' attorney, Douglas Wigdor, told CNN that he had "corroborating evidence" to support Flores' accusation. True to his word (sort of), Wigdor referred to that "corroborating evidence" when he filed an amended complaint on Feb. 8. In addition to naming two more plaintiffs--Steve Wilks and Ray Horton--and providing further evidence of a "sham" interview process for Black head coaching candidates in order to nominally satisfy the so-called "Rooney Rule," the amended complaint alleges that Flores detailed the alleged bribe offer in a written memorandum that was sent to the Dolphins' hierarchy in December 2019. As alleged at paragraph 166 of the amended complaint, "Mr. Flores memorialized Mr. Ross’ desire to have Miami lose games in a December 4, 2019 memorandum that was provided to General Manager, Chris Grier; Chief Executive Officer, Tom Garfinkel; and Senior Vice President of Football and Business Administration, Brandon Shore."

This new allegation is a double-edged sword, for both sides. First, the decision by Flores' counsel not to attach that Dec. 4, 2019 memorandum as an exhibit to the amended complaint--a "smoking gun" if there ever was one--or to even quote from it strikes me as puzzling, especially when the complaint liberally quotes other individuals such as Patriots head coach Bill Belichick and NFL Executive Vice President for Football Operations Troy Vincent when it was beneficial to do so. Why hold this one back then? Perhaps, as one lawyer on Twitter admonished, the memo is the sole property of the Miami Dolphins and Flores has no right to it, calling this "employment law 101." But Flores wrote the memo! Nonetheless, it seems like a curious choice to tease the so-called corroborating evidence and then not even quote from it after using Bill Belichick's private text messages.

From the perspective of the Dolphins and Ross, the existence of such a memorandum (even if the underlying bribery accusation is untrue) could have far more severe consequences. For example, if the alleged bribe offer referenced in the Dec. 4, 2019 memo was a false accusation, then why didn’t the Dolphins fire him right on the spot instead of letting him continue in his current position for two more years and work for an owner whom he just accused of committing a third-degree felony under Florida law. Assuming the memo exists (and aligns with the allegation at paragraph 166 of the amended complaint), it's odd that Ross would continue to employ a coach who accused him of committing a felony and then published that accusation in a memo sent to others.

Conversely, if the accusation was true, then you may have both a felony crime and an attempted cover up. Regardless of whether it’s true or false, the Dolphins would seemingly have an obligation to immediately alert the NFL of a head coach's accusation that the team owner had offered him a bribe to lose games on purpose. Besides being a crime, the alleged offense strikes at the very integrity of the league's games, which are marketed as being true sporting competitions and not scripted entertainment a la professional wrestling.

The failure to report such an accusation (as evidenced by the NFL only now getting around to investigating Flores’ claim that he was offered a bribe by Ross to lose games) could itself be considered conduct detrimental to the welfare of the league and grounds for severe discipline under the NFL Constitution and Bylaws, including a possible forfeiture of Ross’s entire interest in the team (through a forced sale). And that would likewise doom understudy Bruce Beal’s contractual right of first refusal to buy out Ross’s interest, a right which would not be cognizable in a forced sale situation (as I have previously written for Conduct Detrimental). A lot to unpack here.

Daniel Wallach is the co-founder of Conduct Detrimental. He is a nationally-recognized gaming and sports betting attorney. You can follow him on Twitter at @WALLACHLEGAL.

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