The Rooney Rule and Race-Based Litigation for the NFL

Aron Solomon

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On Tuesday afternoon, former Miami Dolphins head coach, Brian Flores, did what should have been done every year since 2003 - sue the NFL for racism in their hiring practices.

Four head coaching positions have been filled since the end of the NFL’s regular season. Those teams - the New York Giants, Las Vegas Raiders, Denver Broncos, and Chicago Bears - all hired white head coaches.

As of the writing of this piece, five more head coaching spots are available in Minnesota, Miami, Jacksonville, New Orleans, and Houston.

Of the nine coaches who are no longer in their roles, two (David Culley and Brian Flores) were Black.

So the 32-team National Football League now has one Black head coach: Mike Tomlin of the Pittsburgh Steelers. He has been their head arch since 2007. Robert Saleh, Jets head coach, who is truly hanging on by a thread as many expected he would be fired at the end of the season, is of Lebanese heritage. Ron Rivera, the Washington Head Coach, is of Latinx descent.

The Rooney Rule, adopted in 2003, is an NFL policy aimed at increasing the number of minority head coaches who actually get hired. Two years ago, the rule was extended to include administrative roles such as general manager. Yet as we wrap up what has been one of the most successful seasons in NFL history, we have come to realize what the National Review did back in 2020: that the Rooney Rule is a joke.

When the Rooney Rule came into effect, there were three Black head coaches in the NFL. Today there is one.

The real shame here is that the pipeline of talented Black and other visible minority coaches is amazing. Here’s just a partial list of coaches who are viable NFL head coaching candidates today. Some have been offered interviews this offseason so the team can check off their Rooney Rule box and others have not:

  • Eric Bieniemy
  • Thomas Brown
  • Teryl Austin
  • Marcus Brady
  • Byron Leftwich
  • Lovie Smith
  • David Culley
  • Raheem Morris
  • Pep Hamilton
  • Todd Bowles
  • Leslie Fraser
  • And, of course, Brian Flores.

Eric Bieniemy, for example, has had one interview so far during the current coaching cycle. This is profoundly absurd. While Kansas City, where he is the offensive coordinator, fell just short of another Super Bowl appearance last weekend, Bieniemy is a superb football mind and extremely well respected among players.

So how does the Rooney Rule, after two decades, actually get some teeth and ensure that by its application, it doesn’t just get Black and other minority candidates interviews but they actually get hired?

The answer is by leveraging the one thing the NFL understands remarkably well:

Money.

So the Flores lawsuit is how the Rooney Rule needs to eventually get its teeth - in the courtroom. No matter how robust a candidate list is in any given off-season, where the Rooney Rule is fatally flawed and is in effect a toothless declawed housecat rather than the lion it was hoped to be, is in the penalties - and this is exactly where the courts need to come in.

Here’s a simple proposal:

The courts mandate that the league build a sliding scale for percentage of Black and other visible minority head coaches.

One year after the agreement is in place, the league needs to have 15% of head coaches in this group. 32 teams, let’s call it 4 head coaches.

Then there’s a sliding scale determining what percentage of new coaching hires need to fit this group. It starts at 20% and goes up from there, ultimately landing within ten percentage points of the Black and other minority player representation in the league. So if the league has 60% Black and other minority players, 50% of new head coaching hires need to be from this same group.

It’s the NFL itself that gets fined each year and the fine is also a sliding scale, with a set number assigned to each percentage point by which the NFL misses their target. Miss by 1% and it’s a $10 million fine. Start there and escalate.

The end result is league pressure from the league on the franchises to actually do what they were supposed to have been doing for decades: train and nurture head coaching candidates then actually hire them.

The NFL has intimate leverage over the franchises here: When the NFL gets fined for a Rooney Rule violation, they absorb part of that fine and recoup some of the fine from the franchise in issue’s TV contract.

Charlie Cartwright, a South Florida lawyer, points out that both sides could be in for a long fight here:

“To ask federal courts to right a historical wrong in a private business such as the NFL is going to be an uphill battle. But racial underrepresentation in the head coaching ranks is something the league hasn’t been able to fix itself, so this may be ripe for judicial review.”

With just over a week until the Super Bowl and, at the time of writing, five unfilled head coaching jobs, the NFL is presented with a real quandary here: They have a sport that is more popular than it ever has been and that is making more money than it ever has. The NFL game is played by a majority of black players and supported by a fan base that is predominantly white. And , again, of 32 teams, 1 has a black coach.

As the Flores lawsuit puts directly into the spotlight today, it’s finally time for a new era where the NFL hires Black and other minority head coaching candidates with intent. For a league that is almost always on the wrong side when it comes to doing the right thing, the time for voluntary compliance is long gone.

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Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital, who has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.

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