Flores Fires Back: What Happens Next?

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Britton Yoder is a 1L at Penn State – Dickinson Law

The NFL is being sued by a former coach. Again.

The National Football League has been under extreme amounts of pressure on the legal front over the past two years. Between Jon Gruden’s contract dispute, the sexual harassment allegations against Dan Snyder, and the suit from the City of St. Louis, the league has had to artfully navigate the threat of trial quite a bit recently.

Though it seems unprecedented, the NFL has plenty of experience with litigation, both as a plaintiff and (mostly) a defendant. It simply comes with the territory of being a multi-billion dollar corporation. But will this experience help minimize the impact of a recent complaint filed by Brian Flores?

Flores, the recently fired Miami head coach and former New England assistant, filed a federal complaint with the Southern District of New York on February 1st, 2022. The complaint, as provided on Twitter by Dan Lust (@sportslawlust), includes numerous facts and exhibits. In fact, there are more than 250 paragraphs included in the complaint. Let’s take a look at the significance of the complaint, what stands out, and how the NFL will try to move forward.

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What is Flores’s Complaint?

Brian Flores, by the allegations in his complaint, is pressing an employment discrimination claim under Title VII for discriminatory hiring practices. The requirements of the claim are simple but are subject to being struck down before reaching the court.

Flores must first submit a complaint to the Equal Employment Opportunity Commission (EEOC) claiming a violation of Title VII. The EEOC will either dismiss Flores’s case based on evidence or allow him to proceed to the court if no resolution is reached before then. Once it reaches the court, Flores can specifically assert one of two claims: disparate treatment or disparate impact.

Disparate treatment is found by proof of intentionally discriminatory acts. Disparate impact is found by direct, circumstantial, or statistical evidence showing the discriminatory effects of employment practice. Flores’s complaint seems to, on its face, be claiming disparate impact by using statistical evidence of gaps between the number of minority and non-minority coaches.

What Stands Out?

Two things about Flores’s complaint stand out:

First, the complaint’s structure and tone are interesting and highly emotional for a civil complaint. The complaint begins with a quote from texts from Bill Belichick supposedly “spilling the beans” on the Giants’ new head coaching hire. This news, of course, came three days before Flores was supposed to interview with the team. The tone is set from the start: “I am not valued, the Rooney Rule doesn’t work, and I was just a box to check for NFL teams.”

Second, Flores has strong allegations. These 250+ paragraphs were not, as seen in so many civil cases, thrown at the wall to see what sticks. Almost every paragraph lends itself to a legitimate claim. Whether there is evidence to back it up? That’s the tipping point.

How the NFL Has/Will Respond

As previously mentioned, the NFL and its owners are billionaires. They have lawyers upon lawyers, and all of them are rock stars. They navigate the dangerous waters of high-stakes litigation like their job depends on it, because it does. As sly as they may seem, they are also predictable.

As many predicted, all three owners named in the complaint have made their standard statements, saying “these claims are without merit.” There wasn’t much variation between the statements either. However, each owner classified the claims as “defamatory,” potentially setting up a countersuit for defamation. This may be used in an attempt to drive Flores into settlement because if Flores loses, the threat of losing a defamation case becomes real.

The NFL has also made their standard responses. But how will they move forward? For the sake of brevity, here is a timeline and a short description of each thing to look out for:

1. NFL will move for a “motion to dismiss for failure to state a claim.”

The NFL will likely lose this, as Flores has a legitimate claim, and the allegations are assumed to be true in a motion to dismiss.

2. The NFL will look to move the case to arbitration to avoid discovery.

Each NFL employment contract has an arbitration clause, stating that all claims arising under the contract must be settled in arbitration. The NFL will likely lose this also because the bulk of this claim doesn’t arise under the contract.

3. Summary Judgment motions will be filed.

Both sides will ask the court to rule in their favor to avoid going to an expensive and lengthy trial. Unfortunately, these motions require there to be no dispute of fact. There will be plenty of disputes of fact.

4. The NFL will push settlement hard.

The NFL’s settlement record is outstanding and they avoid so many expensive litigations by settling.

The NFL is going to pull out all the stops to avoid allowing damaging information to come out at this trial. Expect a settlement under this action, a potential class action, to be large. A settlement doesn’t resolve the key issues to this litigation, though. Flores seems impassioned about this cause as of now. The effects of litigation will take a toll, however. Let’s hope the NFL promptly enacts change before then.

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