The Daily - The Rule at the Center of the N.F.L. Discrimination Lawsuit

Episode Date: February 14, 2022

As the N.F.L. season comes to a close, we’re looking at a class-action lawsuit that Brian Flores, a former head coach of the Miami Dolphins, has filed against the league.At the heart of the case is the Rooney Rule, a policy the league implemented two decades ago that has since been adopted across corporate America.We explore the lawsuit and the Rooney Rule, and we hear from Cyrus Mehri, a civil rights lawyer who helped create the policy.Guest: Ken Belson, a reporter covering the N.F.L. for The New York Times.Have you lost a loved one during the pandemic? The Daily is working on a special episode memorializing those we have lost to the coronavirus. If you would like to share their name on the episode, please RECORD A VOICE MEMO and send it to us at [e-mail]. You can find more information and specific instructions here.Background reading: Brian Flores has sued the N.F.L. and its 32 teams alleging that they discriminated against him and other Black coaches in their hiring practices.After Mr. Flores’s lawsuit and a cycle in which only two nonwhite head coaches were hired, the Rooney Rule, the N.F.L.’s biggest diversity initiative, is facing new scrutiny.Those close to Mr. Flores say his lawsuit is in keeping with the sense of moral rectitude instilled in him by his mother as he grew up in a Brooklyn housing project.Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Sabrina Tavernisi. This is The Daily. As the NFL season comes to a close, a former head coach of the Miami Dolphins has filed a class action lawsuit against the league, accusing it of racial discrimination in its hiring practices. Today, my colleague, Ken Belson, spoke to the civil rights lawyer who created the policy at the center of the lawsuit.

It's Monday, February 14th. It's Monday, February 14th. So, Ken, catch us up a bit here. What exactly has been going on with the NFL in this class action lawsuit? Well, it all starts with a guy named Brian Flores. We are delighted now to be joined by Brian Flores, who was the head coach of the Miami Dolphins for the last several years. And who is Brian Flores? Brian Flores is a really interesting character in NFL terms.

He came from Brooklyn, grew up there, played football in college, and became a scouting assistant with the New England Patriots during their very successful run of Super Bowl appearances. Look, coaching is what I love. It's a passion of mine. And I'm called and gifted to do it. And eventually he got a head coaching job with the Miami Dolphins in 2019 at a pretty young age. And look, the National Football League, and I've been in this league 18 years. He was less than 40 at the time. And he had a rocky first season, but the next two seasons, he had winning records and almost got the Dolphins into the playoffs, which was a pretty good

track record for such a young coach. Surprisingly, though, he was fired at the end of the season. But he did like a lot of coaches, started going on other interviews for other vacancies. I interviewed for the Giants position. And one of them was with the New York Giants. And three days before his interview, he gets a pretty strange text message. And three days before his interview, he gets a pretty strange text message. I received a text message from Bill Belichick saying congratulations on the Giants, essentially a congratulations on the Giants job.

From his former boss and mentor, Bill Belichick. And Belichick says, congratulations, basically, I think you're going to get the job. And Brian Flores is sort of confused. I just asked him, are you talking to the right Brian? And I actually asked Belichick, are you talking to me or are you talking to Brian Dable, the guy from Buffalo, that he's texted to the wrong guy named Brian? And just to clarify, Ken, the other Brian is white? Yeah, the other Brian from the Buffalo Bills is a white candidate. And at that point, Bill Belichick

realizes what he's done and says, you know, I double-checked and misread the text. I meant to be writing this to Brian Dable. Sorry about that one. How did that make you feel, knowing that you were walking into an interview where a

decision might have already been made? It was a range of emotions. Humiliation, disbelief, anger. And that's where Brian Flores, who's Black, starts to think that, hmm, this whole process is a sham. A few days later, Brian Flores files a federal lawsuit alleging discrimination by the NFL and all of its 32 teams, which is pretty extraordinary. Coaches typically don't go to court to sue their employers, especially when they want to get jobs because it's a very radical move. The crux of it, though, comes down to one rule that the

NFL put in place about two decades ago, a rule that actually since then has been widely adopted across corporate America and other institutions. And that rule is called the Rooney Rule. Okay, so what is the Rooney Rule? Well, the Rooney Rule was created in part by a guy named Cyrus Mary. Hey, Ken. Howdy. Sorry, I'm late. No problem. Of all of the phone calls we've had over the years, it's the first time I've actually seen you. So I've known Cyrus for about 10 years now. He's a civil rights lawyer in Washington, D.C. So just to start out, is there a story you can tell us about how you got into civil rights litigation? Sure. I'm fortunate. I'm a son of immigrants. My parents are from Iran.

His parents had both moved to America from Iran, and they both had a deep affinity for the civil rights movement in the 1960s. I grew up in a household where the Kennedy era idealism infused the household. At the same time, the civil rights movement infused the household. So as much as my mother believed so much into the ideals of America, she could not overlook the tragedy of race in America. And she essentially, in so many words, expected me to do something to make America a better place. So he goes to law school, gets a job at a firm. So I was a rookie. And he ends up taking on several big cases, landmark cases, actually, on the issues of diversity in corporate America. I also was very tenacious about it and uncovered what became known as the Texas case. Cyrus's first big case

was in the 90s, when he took on Texaco, the giant oil company, and he represented a number of black employees who felt like they were reaching a ceiling in the corporate ladder, that they couldn't get any further, they couldn't make any more money at their positions, and they said there was a double standard where white employees were getting promoted ahead of them.

And he wins, at the time, the largest racial discrimination case of its kind. So after the Texaco victory, I was still a lawyer in my 30s. So I decided to branch out on my own. I had... He then decides, OK, this is something I want to do full time. And he starts his own law firm that is going to take on racial discrimination cases. I had no clients, no staff, no office. At the beginning, I just literally worked out of the trunk of a car with a couple of boxes. And then lo and behold, I get a call from one woman named

Linda Ingram, who says, Cyrus, I have a case bigger than Texaco and I'm at the Coca-Cola company. So I remember vividly, I fly down to Atlanta, meet her at the car rental place. I followed her to this meeting at a law office in Atlanta and the place was jam-packed. And I walked around the room, talked to everybody. And I heard a very similar story at Coke that I heard at Texaco. The frustration of very impressive African-American executives, managers who hit the glass ceiling. And when I started the meeting, at one point I said, tell me where stock are, and I'll tell you where the glass ceiling is. Where that pay grade, where wealth is created, is where African-Americans are being locked out. So Cyrus takes this Coca-Cola case and ends up winning an even larger settlement, which is a record at the time.

So he's been able to pull off two landmark settlements against these really powerful American corporations. How's he doing it? Well, what Cyrus did, particularly in the Coke case, was he used statistics to prove discrimination, stock options, promotions, salaries, and that was the crux of his cases. So Cyrus is using numbers, this hard data you're describing, to make it much harder for these companies to deny a behavior or a pattern of discrimination. That's right.

How does all of this lead to the Rooney Rule? Well, right around Martin Luther King Day in 2002, Cyrus wakes up. And every day, like I always do, I started reading the newspaper. Grabs the newspaper, does what he always does. He starts with the sports section. And on that day was the announcement that Tony Dungy was fired by the Tampa Bay Buccaneers. What I thought was shocking news. One of the first stories he reads is about Tony Dungy, a black coach with the Tampa Bay Buccaneers who was fired, even though he took one of the worst franchises in the NFL

and turned it into a real success story. And I'm fuming reading this paper. He started to think that maybe there was a racial discrimination pattern amongst the head coaching jobs. So I just had this epiphany that I could use statistics just like I did with Texaco and just like I did with Coca-Cola. And I had this hypothesis that if you ran the numbers, it would show that black head coaches went to the playoffs more often,

won more games, and were last hired first fire. And then I said, okay, let's see if we can test this. So Cyrus comes up with this plan to investigate what he thinks is racial discrimination in the NFL. And I felt if you could change America's game, you could change America. The most visible job in America in terms of hiring is the head coaches of the National Football League. No one knows who becomes the new CEO of Intel or maybe people follow Elon Musk a little bit, but no one really watches the CEOs. This comes back to what happens in America's game influences the hearts and minds

of our country. So what does Cyrus do? Well, Cyrus reaches out to another lawyer who he's been working on civil rights cases with. By then I'd been working with Johnny Cochran on a daily basis. A guy named Johnny Cochran. Wait, Johnny Cochran, the OJ Simpson guy. Yeah, that Johnny Cochran, who was also a prominent civil rights lawyer. So Cyrus goes to Johnny Cochran and says. I said, Johnny, I have this idea. Basically, what do you think about going after the NFL?

And his eyes just lit up, and he was like, I'm all in. And Johnny gets on board with the idea. So the two of them start out by recruiting someone to start crunching the numbers on black coaches in the NFL. How many wins and losses, how they do in the playoffs and so forth, and how they stack up against white coaches. And when they got the results of the data analysis, it was pretty obvious they had a case to make. Black head coaches, the handful that had the opportunity, went to the playoffs twice as often as white head coaches. In a 16-game season, on average, they won more than nine games a season.

White coaches won eight games or a little bit less per season. And you can just see in there that white coaches who never had a winning season would be hired and recycled and recycled. And the black head coaches would be like, playoffs, playoffs. And you could just visually see. So they take the results, as well as stories from black coaches, and they write this big report that details discrimination in the NFL. And they decide they need to release it publicly. the need to release it publicly. And so we came up with this idea of Monday Night Football,

September 30th, 2002. And we said, let's just have a press conference right there before the game. So they decide to hold a press conference before a Monday Night Football game in Baltimore. And they choose Shula's Steakhouse, a restaurant named for Don Shula, the legendary coach. We had 20 or so reporters, and we, one by one, went up and spoke. The data person goes through the numbers, and Cyrus speaks up about the case, and then Johnny Cochran gets up, and he says... Literally, the first thing I remember Johnny saying is, if they don't negotiate,

we're going to litigate. If the NFL doesn't negotiate, they're going to litigate. And that's what the reporters focused on. And with the threat of legal action out there, Cyrus sends copies of his report to the NFL, and unbeknownst to him, those reports are sent to every team owner. And one of those owners was Dan Rooney. Dan Rooney, as in the Rooney rule? Yeah, so Dan Rooney is this pivotal figure in NFL history. He's the son of Art Rooney, who bought the Steelers in the 1930s for $2,500.

And Dan and his brothers grew up with the team. Dan was a water boy. He hung out with the players back then. And he basically goes into the family business. But he isn't just focused on football. Dan had kind of high ideals. And in the 60s, he hired the first black executive in league history who had been analyzing players who were playing in historically black colleges and universities. And the Pittsburgh Steelers transform into this powerhouse in the 70s, largely because of Dan's vision. And Dan Rooney, sitting in his office in Pittsburgh, maybe with a copy of the report in his hand, writes a letter to Commissioner Tagliabue. So Dan Rooney reads this report, and he sends a letter to the NFL commissioner and tells him, It's not you, Paul, that needs to solve this. It's us, the owners, who have to take responsibility. We have to hold each other accountable on this.

The owners are the ones that need to take responsibility for this. The commissioner turns around and starts a diversity committee of other owners and puts Dan Rooney in charge. The day Dan Rooney was announced as the chair of the diversity committee and that hit the newspapers, was announced as the chair of the diversity committee and that hit the newspapers. John Wooten, former player and activist and at one point the highest ranking African-American club executive, he called me up and I was in the grocery store and I pick up the phone and, hey, Wootz, what's up? He goes, we have just won. And I said, what do you mean? He said, Dan Rooney is the chair of the diversity committee.

He is the most influential owner and he has a track record of fairness, we have just won. We'll be right back. So, Ken, what happens after Dan Rooney is named chair of this diversity committee for the NFL? Dan Rooney hosted a meeting every week for eight weeks at NFL headquarters. Well, Dan Rooney sets out to convince the other owners deliberately, slowly, but also urgently, because it's a matter of great importance to the league, to adopt some of the recommendations that Cyrus Mary and Johnny Cochran made. They were afraid of Johnny. They were afraid of me. They kept us at a distance. And what were those recommendations? Well, two of the three recommendations involved the use of draft picks.

So basically, they were designed to serve as incentives for teams to hire minority candidates. Those that did would get an extra draft pick. And those that ran afoul of the rules would be penalized a draft pick. That part of the proposal went out the door like the first part of the conversation. Those were rejected outright and quite vociferously because draft picks in the NFL are gold. They're currency. They are the future of the franchise. And having fewer of them puts you at a competitive disadvantage. So two of the three recommendations, it sounds like, were non-starters. What about the third?

Well, the third recommendation was to obligate each team that had a head coach vacancy to interview at least one minority candidate. The idea was to broaden their perspective and range of candidates and not simply interview white coaches over and over again. I've always championed the idea of a diverse slate so you get as many people in in that final interview because you have to have at least a pipeline. And guess what? You might discover somebody that might have been overlooked. And it turns out that this third proposal was the most palatable to the owners. And at the end of 2002, Dan Rooney suggests that the owners adopt it. And in December of 2002, they take a vote

and they got a handshake to approve it. And it becomes what is now known as the Rooney Rule. And the way I found out is Len Shapiro of the Washington Post called me up They got a handshake to approve it. And it becomes what is now known as the Rooney Rule. And the way I found out is Len Shapiro of the Washington Post called me up and he said, hey, Cyrus, what you've been advocating for has just succeeded. Oh, by the way, should we call this the Cochran-Mary Rule or the Mary Cochran Rule? And I said, no, let's call it the Rooney Rule. Cyrus- Mary decided that it would probably be best to use Dan Rooney's name because it would allow the league to take ownership over the issue as opposed to either a generic name or even Cyrus's name. Because I knew from my cases with Texaco and Koch, the more you can make reforms organically from within, the more likely they'll succeed. And this meant the NFL has to take pride on its success.

And it would show that Dan Rooney was kind of the moral force and the moral compass of the league. Plus, Rooney Rule sounds a lot better. And putting his name on it was kind of a nice piece of branding. And so when I was done with the reporter, I called up Johnny and we put out a statement that applauded the NFL for this giant step forward, but also raised warning signs about implementation and about enforcement. Literally that next weekend, we had to put the hammer on the NFL because Jerry Jones, the owner of the Dallas Cowboys. So the Rooney Rule got off to a rocky start. Jones trying to recruit Parcells.

The Dallas Cowboys owner, Jerry Jones, was trying to hire a white coach who was in demand. And he knew he had to interview at least one black coach, but he only gave one black coach a 20-minute interview on the phone, which was basically violating the spirit of the Rooney rule. And they suffered no consequences whatsoever. And so Johnny and I put out a statement saying, that's not what we meant. And I'm calling up the league's counsel and saying, this isn't what we meant.

Shortly thereafter, the Detroit Lions president, Matt Millen, was found out to not have interviewed any minority candidates for their head coach vacancy. We then that was a signature moment in the history of the rule, because we said to them, this is make or break them being the lead. Either you enforce the rule or you have no rule and it'll be destroyed. You have to enforce it. They thought about it and they gave Matt Millen a $200,000 fine for breaking the rule. And they said he was fined $200,000. And the commissioner of the league said that the next time it happened, the executive would be fined at least $500,000. That sent a resounding message to the NFL community. So what followed

was a remarkable run of success. After this, the number of black coaches steadily started to increase from three to five to six to seven. And in 2007, there's a major milestone. Lovie Smith, who became the first black coach on one Super Bowl sideline. I know a black coach has taken his team to the Super Bowl. That's a part of the story. Tony Dungy, who became the second one on the other sideline.

Right now, I'm really focused on winning this game. When both coaches in the Super Bowl were black. On this historic day, where you and your friend Lovey Smith become the first African-American coaches to take teams to the Super Bowl, how much does that and this moment mean to you? It means a lot. I'm very proud to represent African-American coaches. I'm so proud of Lovey, tremendous job they did.

But more than that today, this is about Indianapolis and the Colts and our team. And we're excited about that. So we saw that kind of success. Meanwhile, minority coaches are breaking through the ranks, rising up. As years went by, the number of minority head coaches rises to eight.

And the NFL expanded the number of positions that were governed by the Rooney Rule. General manager, offensive coordinator, defensive coordinator, other roles in the front office. And the Rooney Rule also became a model in corporate America. For example, I sat down with Nike, explained to them how to do it, and they had a lot of questions, and they went out and tried to do it. It's reminding me, Ken, of what Cyrus set out to do, right? America's game, if you change it, you change America. And it seems like he's kind of doing it.

Absolutely. I don't think he probably predicted how this would turn out, but it definitely, his instinct that what happens to the NFL has great consequence was pretty on the mark. We had a really good run. So I think the big question people keep asking is, well, what happened? Well, what happened is, well, one is just natural human nature. Dan Rooney passed away. So in 2017, Dan Rooney, who had been the sort of moral center of the entire effort, died in his 80s. And that moral leadership, you know, has been hard to replace. But I point to the signature moment.

The NFL announcing they are looking into whether or not the Raiders violated the Rooney rule. We had the owner of the Raiders blatantly violate the rule. Saying that the Raiders had an agreement with Gruden as early as Christmas Eve. Since then, reportedly, the Raiders interviewed two unknown minority candidates. But the problem is when they sealed the deal, no interviews had been conducted, nor had current coach Jack Del Rio been notified. So just think about this. It's supposed to be an open process, inclusive process, fair competition. John Gruden gets hired. And Mark Davis never interviewed a minority candidate, not one. This was a blatant violation. They needed to put the hammer down. We called on them

that it's time to give him a fine like you did with Matt Millen a generation earlier, and they didn't do it. And by not doing that, and again, you can look at the social science literature, they sent a resounding negative message. Instead of a message of accountability, it was a message of you can get away with anything. And during this time, the number of minority coaches starts ticking down, and no other teams are fined. And one of the few minority coaches who is hired is a young guy named Brian Flores. The Brian Flores of the lawsuit you were telling us about. Yep, that Brian Flores, the same guy who took over the Dolphins in 2019. He had two winning seasons. Then he gets fired in January of this year, goes out and looks for a new job. And that's when he gets those

text messages from Bill Belichick that became the center of his federal lawsuit. Did it give you any pause that the Flores case had to be brought at all? And when I talked to Cyrus the other day on the phone, I asked him what he thought of it all. I mean, you've been chipping away at this for years and yet 20 years later, an African-American coach is so frustrated that he has to file a federal suit to get people to pay attention. What do you make of that dynamic? Well, I felt a little bit of sadness because I was like, oh my gosh, this is exactly the same spot. I've been battling race discrimination and corporate America now for almost 30 years. And I can tell you it is a tenacious foe that are built in, in-group favoritism, the bias that people have in terms of selecting people, that they have preconceived notions.

Racial progress is fragile and you can lose it in a heartbeat. And that's what I think the last 20 years showed. We had great reform, great progress, leadership, people seizing opportunities, winning Super Bowls. And then you take your foot off the gas, you make one mistake and the house came tumbling down. And that's what happened. So Ken, when it comes to the lawsuit Brian Flores filed, it seems like what Flores is saying is that the Rooney rule, which was created to increase diversity, really just isn't working. That's exactly what he's saying. That yes, teams are following the letter of the rule,

but it's not having any desired effect. And at the same moment I was talking about this topic with Cyrus, I saw some news break. Forgive me, just as we were talking, I just got an email from the Urban League National Action Network. I got an email from some prominent civil rights groups, the National Urban League, the NAACP, the National Action Network, and they were actually trying to take it a step further. They were calling for the Rooney Rule to be scrapped entirely. And that's because they believe it's so ineffective that it should be eliminated.

That's right. What did Cyrus make of that? Yeah, well, I mean, this is like saying, in 20 years after Title VII, saying, wait a minute, there's still massive discrimination in America. Let's repeal Title VII. No, you don't do that. He compared it to getting rid of Title VII, this landmark civil rights legislation from the 1960s. Which prohibits employers from discriminating based on race.

That's right. You build on it. You add new elements. You improve enforcement. And I have a lot of ideas on how to improve our anti-discrimination laws. In fact, I've written about it. And I have a bill that was introduced in the U.S. Senate and the Congress based on something I wrote.

So you build on the laws. You build on your infrastructure, you build on the tools, you don't destroy them. And as I was talking to him about the news about the civil rights leaders, some other news broke. And so that's where it fell off course. And now Adam Schefter is reporting that Dennis Allen, the defensive coordinator for the Saints, will become the coach. So there's only, I believe, one spot left. And Dennis Allen is not, is a white guy. Another head coaching vacancy had just been filled by a white man. Well, yeah, well, I mean, I really wanted to.

You know, teams have lots of reasons for making their decisions. But in this case, there were a number of strong minority candidates, including Brian Flores. The progress is way too slow. But if you get rid of the ruining rule, we won't even get guys come in to compete. Ken, hearing you describe all of this, it sounds like this might just be an intractable problem. Is it unrealistic to think anything can change? Well, there are some profound structural issues in the NFL. Unlike public corporations, which have to answer to shareholders, the government, consumers, which have to answer to shareholders, the government, consumers. The NFL is basically made up of private teams that really don't have to answer to most people on the outside.

It's a private organization and the teams are independent franchises, primarily owned by older white men who are from a past era. And not only that, they're making money hand over fist. And unless big corporations like Pepsi or Verizon or even the broadcast networks pressure the owners to change, the incentive to do so quickly really isn't there. Ken, thank you. My pleasure. Thanks. We'll be right back. their preparations for a potential Russian invasion of Ukraine, warning that it could come as soon as this week. Britain warned all of its citizens to leave Ukraine immediately and not to expect a military evacuation in the event of war. The U.S. ordered most of its staff at the American embassy in Ukraine to vacate the building, citing the high risk of armed conflict. to vacate the building, citing the high risk of armed conflict.

And several airlines, including the Dutch carrier KLM, suspended flights into Ukraine, calling the conditions too dangerous. If there is a military invasion of Ukraine by Russia, it's likely to begin with a significant barrage of missiles and bomb attacks. With diplomatic talks still failing to achieve a breakthrough, and the Russian buildup of troops still growing, American officials issued their most dire warnings yet. In an interview on Sunday with CNN, National Security Advisor Jake Sullivan described how a Russian invasion would unfold. It would then be followed by an onslaught of a ground force moving across the Ukrainian frontier,

where innocent civilians could get caught in the crossfire or get trapped in places that they could not move from. Today's episode was produced by Muj Zaydi, Ricky Nowetzki, Austin Mitchell, Caitlin Roberts, and Jessica Chung. It was edited by John Ketchum, Larissa Anderson, and Lisa Chow. Fact-checked by Caitlin Love. Contains original music by Marian Lozano.

And was engineered by Chris Wood. Our theme music is by Jim Rumberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi. See you tomorrow.