At the beginning of Black history month, in a class action complaint against the NFL and others replete with heart-breaking allegations of racism, former Head Coach of the Miami Dolphins, Brian Flores, charged that, among many other things, he and other members of the proposed class have been denied positions as head coaches and general managers as a result of racial discrimination.  Defendants that have responded publicly have reportedly denied the allegations and said that the claims are without merit.  Particularly notable from a governance and DEI perspective are allegations regarding the disingenuous application of the vaunted “Rooney Rule”—which originated in the NFL back in 2002 in an effort to address the dearth of Black head coaches—but has since become almost de rigueur in governance circles as one effective approach to increasing diversity in a wide variety of contexts, including boards of directors. However well-intentioned originally, the complaint alleges, “the Rooney Rule is not working.” Flores claims that, to fulfill the admonitions of the Rooney Rule, NFL teams “discriminatorily subjected” him and other Black candidates “to sham and illegitimate interviews due in whole or part to their race and/or color.”  While this claim is far from the most incendiary in the complaint, if shown to be accurate, it would certainly seriously damage the reputation of the defendants involved.  Can an approach that has allegedly failed to work in its original setting still be made to work effectively in other contexts?

As you may have read, Flores was fired as head coach of the Miami Dolphins last month, after three years, including two winning seasons.  After his termination, he was recruited as head coach for the NY Giants. But he was not hired for the position and, the complaint alleges, he “learned that the Giants’ continued courtship was nothing more than a discriminatory façade designed to show false compliance with the Rooney Rule.” The complaint alleges that around 40 other members of the proposed class have been subject to this and other types of discriminatory conduct. By filing the complaint, Flores says that he hopes “to shine a light on the racial injustices that take place inside the NFL and to effectuate real change for the future.” Among other relief, he is seeking injunctive relief designed to “Increase the influence of Black individuals in hiring and termination decisions,” ensure diversity of ownership and decision-making and increase objectivity in hiring and termination decisions.

According to the complaint, the Rooney Rule originated in 2002, in response to adverse public reaction to a detailed report on the NFL’s head-coaching hiring practices entitled “Black Coaches in the National Football League: Superior Performance, Inferior Opportunities.” The report showed evidence of discrimination, “including that Black Head Coach candidates were less likely to be hired and that Black Head Coaches were more likely to be fired.” In response, the NFL created a “Committee on Workplace Diversity,” headed by Pittsburgh Steelers’ President Dan Rooney, which recommended that the NFL institute the “Rooney Rule,” which required “that NFL teams make a commitment to interview minority candidates for every Head Coach job opening (with limited exceptions).” The Rule was approved by the owners in 2002 and has since been amended to apply to other coach and managerial positions and to require teams to interview at least two minority head coach candidates, including one in person. Violations have resulted in team fines, the complaint alleges.

According to the complaint, however, “the Rooney Rule has failed to yield any meaningful change to an institution so fully steeped in discriminatory practices….In the 20 years since the Rooney Rule was passed, only 15 Head Coaching positions have been filled by Black Candidates. During that time, there have been approximately 129 Head Coaching vacancies. Thus only 11% of Head Coach positions have been filled by Black candidates—in a league where 70% of players are Black.” The complaint alleges that, when “the Rooney Rule was instituted, almost twenty years ago, there were three Black Head Coaches. There is now only one,” among 32 teams.   Although the complaint acknowledges that “the Rooney Rule was and remains well-intentioned, its effectiveness requires NFL teams to take it seriously, and not treat it as a formality that must be endured simply to formalize the pre-determined hiring of a white coach.”  “[W]hat is clear,” the complaint alleges, “is that the Rooney Rule is not working.” Among other reasons, it is “not working because management is not doing the interviews in good-faith, and it therefore creates a stigma that interviews of Black candidates are only being done to comply with the Rooney Rule rather than in recognition of the talents that the Black candidates possess.”

The complaint alleges that, to appear to comply with the Rooney Rule, Flores was subjected to the indignity of sham interviews. In particular, Flores was scheduled to interview for the Head Coach position at the New York Giants. As it turns out, the complaint alleges, the Giants had already made the decision to hire someone else—and had disclosed that decision to third parties, one of whom inadvertently leaked that decision to Flores. But the Giants still went ahead with the Flores interview, “deceptively [leading him] to believe he actually had a chance at this job.” The complaint claims that Flores then had to sit through an interview dinner with the Giant’s new General Manager, knowing that the Giants had already selected someone else and “had to give an extensive interview for a job that he already knew he would not get—an interview that was held for no reason other than for the Giants to demonstrate falsely to the League Commissioner Roger Goodell and the public at large that it was in compliance with the Rooney Rule.” As alleged, Flores was devastated to learn “that not only would he not be getting the Giants Head Coach job—the job of his dreams—but, more importantly, that he was not even being given serious consideration for the position but being treated as a box to ‘check off’ due to his race.”

Other examples are provided in the complaint.  For instance, a Black candidate that had coached for many years interviewed for, but was rejected at, around 10 open head coach positions. According to the complaint, he subsequently stated that “that only two of the four interviews he engaged in that year felt like ‘legitimate interviews’ where he had a ‘legitimate shot at the job.’ He was asked in a follow-up question whether his saying two of the job interviews were ‘legitimate,’ meant he believed the other two were ‘Rooney Rule interviews.’ [He] said: ‘Take it however you want.’” Ironically, the Rooney Rule had morphed into an epithet—and a highly pejorative one at that.

In recent years, the Rooney Rule has been widely touted in governance and DEI circles as a way to cast a wider net that includes diverse candidates when seeking to fill a position. Outside of the NFL, the Rooney Rule has meant a commitment to include women and minority candidates in every pool from which candidates for certain positions are chosen.  For example, the NYC Comptroller’s Boardroom Accountability Project 3.0 called on companies to adopt the Rooney Rule as a structural reform—a policy committing to include women and minority candidates in every pool from which nominees for open board seats and CEOs are selected. The Rooney Rule has also been invoked by institutional investors, such as CalSTRS, and groups that advocate for board diversity, such as the Thirty Percent Coalition, as a tool to increase the number of women on boards.   And certainly, the Rooney Rule may work well in those contexts. Whatever the context, however, to be effective, as this case suggests, the Rule requires that those applying it do more than just pay it lip service.  This case makes clear that companies that rely on the Rooney Rule as a strategy for achieving diversity must ensure that they are implementing that strategy—along with other strategies to increase diversity—in good faith.

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