The Rooney Rule was established to promote the hiring of minorities among the NFL’s head coaches and general managers.  But with numbers at their lowest since the Rule’s inception ten years ago, is the Rooney Rule working?

With the 2012 season of the National Football League (“NFL”) recently concluded, many in the industry are now reflecting on the league’s successes and failures since preseason games kicked off last August.  While the NFL undoubtedly has many positive and exciting storylines to boast from its most recent season, one dark cloud always hangs over the end of each season: turnover.  On a day colloquially dubbed “Black Monday,” the day following the last Sunday of the regular season, eight head coaches and five general managers were shown the door, with various teams hoping to rebuild and capitalize on the promise of new leadership.  Of these thirteen individuals, three were minorities

Within weeks after Black Monday, all vacant head coach and general manager positions were filled.  After all, it is not uncommon to have a number of head coaching vacancies at the end of any given season.  What made this year different, though, was none of these new positions were given to a minority.

Enter the “Rooney Rule” (also referred to herein as the “Rule”), a mandate voluntarily adopted by the NFL in December 2002, in an attempt to promote minority hiring in head coaching positions.  Named after Pittsburgh Steelers Chairman Dan Rooney, who spearheaded the establishment of the Rule during his time as chairman of the NFL’s Committee on Workplace Diversity (the “Committee”), the Rule requires that each NFL franchise interview at least one minority candidate when looking to fill a head coaching vacancy.[1]  The Rule was expanded in 2007 to include general manager positions, at the insistence of NFL Commissioner Roger Goodell.[2]

At the end of the 2011 NFL season, eleven minorities filled head coaching positions (including interim coaches); in contrast, at the beginning of the 2013 NFL season, only four minorities will hold such positions – the lowest number since the Rule’s inception.[3]  This disparity has many, commentators and current and former coaches alike, asking whether the Rooney Rule needs renewed attention.[4]

In the years preceding the Rooney Rule, the NFL’s poor minority hiring record was often the subject of criticism.  But it was not until a report prepared by renowned civil rights attorneys Johnnie Cochran and Cyrus Mehri was issued in September 2002 that the NFL decided to take action.  The report, which compiled nearly fifteen years of statistical data, found (among other conclusions) that African American coaches generally won more games per year and led their teams to more playoff games than their Caucasian counterparts, and that African American coaches who were terminated during the period studied had generally won more games than Caucasian coaches who were let go in the same timeframe.[5]  Cochran even threatened to pursue a class action lawsuit against any number of NFL franchises if marked progress was not quickly made.[6]  With potential lawsuits and poor publicity threatening the reputation of “America’s Game,” the Committee drafted, and each NFL franchise approved, the Rooney Rule.[7]

Few will argue the benefits the Rule has brought to the NFL since its inception.  Before the Rule was implemented, the NFL had only six minority coaches in over eighty years.  In the ten years since the Rule has been in place, however, over a dozen have been hired.[8] In 2006, the NFL saw its first Super Bowl won by an African American head coach, and that Super Bowl even featured two teams led by African American head coaches (Tony Dungy of the Indianapolis Colts and Lovie Smith of the Chicago Bears).  Despite this noted progress and the Rule’s laudable goals, it has not been completely without criticism.  Some believe the Rule leads to tokenism, teams conducting “sham” interviews, and a lack of transparency in the actual interview and hiring process.  Some argue whether the Rule is even legal, claiming it is an impermissible form of reverse discrimination under Title VII.  As may be expected, champions of the rule dismiss any accusations of reverse discrimination, claiming its intention is not even related to affirmative action, but rather a way of instilling best practices and “leveling the playing field.”  To date, no Title VII challenge has been brought against the NFL or any of its franchises, whether such challenge claims that the NFL engages in discriminatory hiring practices (thus supporting the plight of the Rule) or claiming that the NFL’s establishment of the Rooney Rule is a form of reverse discrimination (thus attacking the Rule as an invalid affirmative action plan).

The Rule does not establish any sort of “quota” or otherwise require that certain administrative or management positions be filled by minorities.  However, this is not to say that the Rule lacks teeth; the NFL will – and has – imposed discipline upon teams it deems to have violated the Rule, as any such conduct is treated as violating the NFL’s constitution and by-laws.  The most well-known example of such discipline involved the first violation of the Rule in 2003, when Detroit Lions president Matt Millen hired new head coach Steve Mariucci.  Although Millen attempted to interview five different minority candidates in an effort to comply with the newly-minted Rooney Rule, each refused the interview, knowing that Mariucci was by far the Lions’ favored selection and his hiring was all but a certainty.  Millen hired Mariucci anyway, resulting in a $200,000 fine from the NFL.[9]

In certain ways, the Mariucci hiring in 2003 and the recent cycle of replacing head coaches and general managers this past year has led to a similar line of questioning around the Rule.  Both failures seem to support the argument that the Rule does not go far enough; as stated above, some argue that the Rule lends itself to “sham” interviews for the sake of compliance, which smacks of tokenism and does not seem support the goal of the Rule at all.  One of the more compelling arguments is that the problem lies in the “pipeline,” as minorities historically have a very small presence in the positions most likely to be promoted to head coach, such as offensive coordinators, defensive coordinators, or quarterback coaches.[10]  Consistent with this theory, a proposal was recently sent to the NFL suggesting the Rule be expanded to cover coordinators, assistant head coaches and club president positions.[11] Thus, at this point, questions and analysis surrounding to the Rule’s effectiveness seem to clearly outweigh any challenges to its legality.

With the brainstorming as to how the Rule can be improved seemingly in its early stages, it remains to be seen how the NFL will handle any reevaluation of the Rule.  What does seem clear, however, is that many have lost their taste for what was once a very appetizing solution to a clear problem.  Now that the problem has evolved, the NFL is challenged with concocting a more palatable offering that will leave everyone satisfied.

 – Kathryn M. Agostinelli is an associate at Foley & Lardner LLP and is a member of the firm’s Transactional & Securities  Practice and Sports Industry Team.
kagostinelli@foley.com; 213-972-4727