The bombshell lawsuit filed by former Dolphins head coach Brian Flores against the NFL, the team and owner Steve Ross will not be resolved in a courtroom, no matter what gets decided, legal and professional experts say.
The most lasting verdict will be handed down by the court of public opinion, in the exponentially politicized process of picking new head coaches for the Dolphins and other teams, and, most especially, in the future of the Dolphins’ ownership.
Robert Zarco, whose Miami firm represents executives in salary and other employment matters, called Flores’ suit an emotionally driven effort “to use the court system and the media to make a political statement” out of issues that have been “brewing for a number of years.”
Experts say the aspect of Flores’ lawsuit with the shortest shelf-life is his attempt to make it a class action. In accusing the NFL of a widespread discriminatory practice locking Black candidates out of the top coaching positions, Flores and his lawyers will have an impossible time establishing the existence of enough potential plaintiffs to constitute a “class,” usually a group of plaintiffs so large that it is impractical to list them all.
“When you have a class, you have to have commonality of the facts and commonality of the law,” Zarco said. The complaint, he said, doesn’t show how teams may have systematically denied coaching jobs to Black candidates.
“Unless you can establish a clear pattern where [employers] are playing from the same playbook on how to discriminate, you are never going to get this class certified,” he said. “There could be so many factors that affect employment decisions.”
At best, every discrimination suit would have to be tried separately to deal with the individual circumstances faced by each team, said Michael Elkins, founder of MLE Law in Fort Lauderdale.
“Every team’s needs are different,” he said, “Every general manager who is part of the hiring process is different. I don’t know how that’s going to shake out from a class perspective,”
But Flores doesn’t need a class-action victory in court to convince the public that something is amiss in NFL hiring practices. The numbers speak for themselves, Elkins said.
“The issue of discrimination with respect to hiring coaches is not new. That gets discussed every year,” Elkins said. “The statistics themselves are not good for the NFL. The number of minorities in these positions is diminishing.”
For Miami, one of the most troubling allegations is that the team’s owner offered the head coach a financial incentive to “tank” for a quarterback in the 2019 season. In the NFL, the teams with the worst records get the first draft pick in an effort to balance talent throughout the league. The Dolphins had their sights set on quarterbacks Joe Burrow, who was selected by the Cincinnati Bengals with the No. 1 pick, and Tua Tagovailoa for the following season’s draft.
Miami started an embarrassing 0-7, but finished 5-11 in Flores’ first season. Miami drafted Tagovailoa with the No. 5 pick. Cincinnati finished 4-11-1, got the No. 1 pick, and drafted LSU quarterback Burrow, who has helped lead them to this year’s Super Bowl.
Flores’ “$100,000 per loss” incentive allegation brings the tanking strategy out of the realm of suspicion and into conspiracy, possibly criminal, territory. Whether it’s ever proved in court to the satisfaction of a jury, the stigma of the allegation could follow Ross for the foreseeable future, hindering his ability to recruit a talented head coach or redeem himself in front of a fan base that has been all too willing to criticize his every move.
Federal law enforcement officials declined to answer questions about whether the incentive would constitute a criminal act.
It’s unclear whether Ross’ alleged $100,000-per-loss offer to Flores or his alleged rule-breaking attempt to get a “prominent quarterback,” believed to be Tom Brady, will get his team taken away.
But teams have been taken from American professional sports owners in the past for reasons having nothing to do with courtroom losses.
NBA commissioner Adam Silver stripped Donald Sterling of ownership of the Los Angeles Clippers in 2014 because of .
Major League Baseball because of racist remarks she made. Officially, Schott, who was suspended for the 1993 season because of racist remarks, surrendered daily control of the team, but she did so under pressure after making derogatory remarks about Blacks, Asian-Americans and Jews and praising Adolf Hitler.
And the recently renamed Washington Commanders, owned by after an investigation revealed a workplace rife with sexual harassment, bullying and intimidation. However, Snyder didn’t have the team taken away. Rather he agreed to step away for a few months.
His wife, Tanya, was named the team’s co-CEO and took over day-to-day responsibilities for running the team.
Lawyers expect the NFL, which has denied Flores’ allegations, to work vigorously to ensure the case does not proceed. One key reason: dirty laundry is bound to emerge as the evidence gathering unfolds in court.
“The NFL needs to put this away,” said Alan Fertel, an employment and entertainment lawyer for Weiss Serota Helfman Cole & Bierman in Coral Gables.
Rafael Olmeda can be reached at rolmeda@sunsentinel.com, 954-356-4457 or on Twitter
