For the second time in just over a year, the National Football League has been named as a defendant in a lawsuit that accuses the league of racial discrimination. Former NFL Network journalist, Jim Trotter, filed a complaint in the United States District Court for the Southern District of New York claiming not only that he himself was subjected to discriminatory employment practices, but also asserting a slew of salacious, racially-charged allegations, including the 1930s “Gentleman’s Agreement” to exclude Black players, the blackballing of Colin Kaepernick, racist comments made by current NFL team owners, and the failings of the Rooney rule, to name but a few.
The 53-page Complaint alleges that the NFL let Trotter go in response to his challenging the League – and in particular, Commissioner Roger Goodell – regarding the NFL’s track record on discrimination, as well as the League’s lack of diversity in its coaching ranks, in the League office, and in the NFL Media newsroom. In particular, the Complaint highlights two instances in which Trotter publicly asked Goodell, at the annual “State of the League” press conference before Super Bowls LVI and LVII, why “we’ve never had a black person in senior management in our newsroom.” Trotter alleges that, following these inquiries, he was asked by NFL Management to confirm whether Trotter was “in alignment” with the NFL, to which Trotter responded that he was not “in alignment” with the NFL’s lack of diversity, and reported his concerns about both discrimination and potential retaliation resulting from his questions. According to the Complaint, a few days later, and despite having previously informed Mr. Trotter’s agent that his contract would be renewed, the NFL allegedly retaliated against him by declining to renew his contract.
Trotter brings six claims alleging retaliation and discrimination under three different statutes: Section 1981 of the Civil Rights Act of 1866 (“Section 1981”), the New York State Human Rights Law (“NYSCHRL”), and the New York City Human Rights Law (“NYCHRL”). The Complaint alleges that Trotter lost his job “for having the courage and integrity to stand up to the NFL.” More than Mr. Trotter’s courage and integrity, however, there are three pertinent issues presented in the Complaint which will affect the trajectory of the lawsuit.
First, the Court must determine whether the NFL itself actually employed Trotter.
For the Section 1981 claims, the Courts will analyze whether the NFL “exerted significant control” over Trotter: did the NFL supervise Trotter’s day-to-day activities; have the authority to hire or fire Trotter; set his work rules and conditions of employment; issue Trotter work assignments; or issue Trotter operating instructions?
For the NYSHRL and NYCHRL claims, the Court will look at whether the NFL: (1) had the power to select and engage Trotter; (2) paid him; (3) had the power to dismiss Trotter; and (4) had the
power to control the employee's conduct. Zurich Am. Life Ins. Co. v Nagel, 571 F Supp 3d 168, 184 (S.D.N.Y. 2021).
The NFL will argue that Trotter had no contract with, and was not employed by, the NFL itself, but rather by NFL Enterprises and the NFL Network (or “NFL Media”). The Complaint attempts to preempt this issue by describing the ways that the NFL owned and controlled the NFL Media entities that actually contracted with Trotter and claiming that the NFL issued instructions regarding his work: not to mention suggesting strongly that Trotter was let go as a direct response to his questioning of Goodell.
Second, the Court will evaluate whether Trotter was engaging in protected activity. Under these statutes, the term “protected activity” includes action taken to protest or oppose statutorily prohibited discrimination. This issue will likely come down to whether Trotter’s public and private inquiries regarding Black representation in the newsroom and on the news desk constituted protests of alleged discrimination.
Third, the Court must decide whether the decision to let Trotter go was in retaliation for his actions and inquiries, or whether the defendants had a legitimate, non-retaliatory reason for its decision.
There are, of course, more issues to be analyzed by the Southern District Court than the three discussed above. Like the pleadings in Brian Flores’ Complaint against the NFL, Trotter’s Complaint states the intention to file a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission, after which he will likely amend his Complaint to include claims arising from Title VII of the Civil Rights Act. A claim under Title VII will almost certainly implicate additional issues for the Court to preside over.
Defendants currently have until November 17, 2023 to respond to the Complaint by way of either Answer or Motion to Dismiss.
Charles Bergin is an attorney at Kaufman Dolowich LLP. His practice focuses on labor and employment law, business litigation, immigration law and general liability defense. He has a background in entertainment law, sports law, and insurance litigation. He was named a 2020, 2021 and 2023 New York Metro “Rising Star” in the field of “Business Litigation”.
Alessandro J. Angelori is an associate at Kaufman Dolowich LLP. His practice focuses on labor and employment law, insurance litigation and coverage, intellectual property matters, and general liability defense.