(Photo by Rick Diamond/Getty Images)
By Daniel Wallach
Bill Belichick's texting misadventures may have gotten the headlines during the initial news cycle surrounding Brian Flores' filing of a class action lawsuit for racial discrimination against the NFL in early February, but it is not even close to being the most legally significant factual nugget in the complaint.
To be sure, Belichick's text message sent to Brian Flores in which the legendary New England Patriots head coach congratulated someone he mistakenly believed was Brian Daboll (a white coach) about getting the New York Giants head coaching job that Flores (a black coach) was still interviewing for--may be evidence that the later interview with Flores was nothing more than a "sham" designed to satisfy the NFL's so-called "Rooney Rule," which requires NFL teams to interview at least one Black person in connection with a head coaching vacancy.
But that anecdote--which may very well reflect an erroneous and premature assumption by Belichick--is highly specific to Flores and, while potentially helpful to his individual claim of racial discrimination against the Giants, does not implicate other NFL teams and may not even be particularly relevant to the claims of other Black coaching candidates who were not part of the Giants' interview process during the January 2022 hiring cycle.
After all, this is a class action lawsuit and not just an individual claim by Flores. Indeed, Flores is purporting to represent the interests of an entire class of Black head coaching candidates who were passed over for the top job by other NFL teams, and not just with the Giants. For that, he'll need 'class-wide' proof of discriminatory intent.
The Belichick text--while it may be one small link in the chain of evidence--is not enough by itself to get a class certified in federal court and may not even be enough to get Flores past the expected NFL motion to dismiss the complaint. (Per a recent court order, the NFL's response to the complaint is due on April 11th).
Luckily, Flores already has a 'smoking gun' in his arsenal.
And it is far more meaningful--and legally significant--than the Belichick blunder.
At paragraph 7 of the complaint, Flores' legal team includes NFL Executive Vice President Troy Vincent's recent admission--first reported by Mark Maske of the Washington Post on January 11, 2022--that there is a "double standard" when it comes to the tenures of Black head coaches, citing several examples of Black NFL head coaches (such as Tony Dungy and Jim Caldwell) being fired after a winning season and another Black NFL head coach (Steve Wilks) being fired after only one season. [An even more recent example of that is David Culley, a black head coach who was recently fired by the Houston Texans after just one season at the helm].
"How do you explain that?", Vincent rhetorically asks. Answering his own question, Vincent states that "[t]here is a double standard." He then wonders why some NFL head coaches--namely, white ones--"get the benefit of the doubt to be able to . . . take [their] bumps and bruises in this process of getting a franchise turned around when others [undoubtedly referring to black head coaches] are not afforded that [same] latitude?" Vincent concludes by saying that "we've seen that [throughout] history at the [p]rofessional level."
This is tantamount to an admission of guilt.
And it comes from one of the highest-ranking executives in the league office.
As such, it carries tremendous evidentiary weight.
From this lens, it may be enough to allow Flores to overcome the NFL's expected motion to dismiss.
To survive a motion to dismiss, a plaintiff alleging 'race-based' employment discrimination must "specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar College, 35 F.3d 709, 713-14 (2d Cir. 1994) (emphasis added).
Two recent decisions in the Southern District of New York shed light on the "plausible inference" standard. In O'Quinn v. City of New York, 2021 WL 4429787, at *8 (Sept. 27, 2021), the Court described this standard as requiring a plaintiff to allege facts "supporting at least 'a minimal inference of discriminatory motivation.'"
In Walker v. Triborough Bridge & Tunnel Auth., 2021 WL 5401481, at *3 (S.D.N.Y. Nov. 18, 2021), Judge Valerie Caproni--who is presiding over the Flores case--similarly wrote that a plaintiff alleging 'race-based' employment discrimination "need only give plausible support to a minimal inference of discriminatory motivation." She added that "[a] plaintiff may defeat a motion to dismiss in a discrimination case 'by indirectly showing circumstances giving rise to an inference of discrimination.'" Id. (citing cases).
Vincent's admission that there is a racial 'double standard' in the NFL is about as close to an admission of guilt as one can get. To say that it supports a "minimal inference" of discriminatory intent would be the understatement of the year. See Sweeney v. West, 149 F.3d 550, 554 (7th Cir. 1998) ("No admission of guilt is necessary, . . . but the plaintiff must at least raise an 'inference of discrimination,'" inferring that an admission of guilt would easily clear the 'minimal inference' threshold). When combined with the compelling statistical evidence presented in the complaint--detailing the gross disparity between the number of Black head coaches in the NFL (only 1 out of 32 teams when the complaint was filed) and the number of Black players in the league (roughly 70% of the workforce)--Vincent's admission should enable Flores to overcome the NFL's expected Rule 12(b)(6) motion to dismiss for failure to state a cause of action. There is more than enough in the complaint.
And if he can survive both that motion and the NFL's motion to compel arbitration, Flores will be able to proceed with the all-important discovery phase of the lawsuit and begin taking the depositions of key witnesses.
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.
