The Rooney "Suggestion"
How the “Rule” Has Failed to Defeat Systemic and Institutional Barriers to Fair and Equitable Hiring Practices in the NFL and Recommendations for Meaningful Reform
By DeMaurice Smith* & Carl Lasker**
*DeMaurice F. Smith is completing his 14th and final year as the Executive Director of the NFL Players Association (NFLPA) and Chairman of its wholly owned for-profit business NFL Players Inc. The period of his tenure has included some of the most tumultuous moments in NFL history, from Colin Kaepernick and the anthem issue, to a myriad of legal battles over the authority of the NFL Commissioner, to navigating the successful completion of two NFL seasons during a worldwide pandemic. At the same time, the players’ partnership with NFL ownership has been extremely profitable—for both players and NFL owners—as player salaries, annual revenue, and television viewership annually reached record numbers. The two Collective Bargaining Agreements negotiated during Smith’s tenure span over 20 years, and the 2011 CBA reflected significant gains for players after the most hostile labor and management battle in professional sports since the mid-1990s. Smith’s tenure has also included close interaction with NFL owners that is unique; he has negotiated directly with NFL owners, been privy to many of their internal business operations, and negotiated or engaged with many of the NFL’s business and partners. Smith was elected as Executive Director of the union in 2009 as “the non-sports candidate.” His tenure also included the most contentious battles with the NFL owners including numerous player discipline cases, lawsuits regarding the application of the CBA, public battles regarding the NFL’s anthem policy, collusion cases, and contentious interactions regarding the health and safety of NFL players. Before representing the NFLPA, Smith served as an Assistant U.S. Attorney in Washington, DC for nearly a decade, where he focused on violent crime and terrorism enforcement; he later became Counsel to then-Deputy Attorney General Eric Holder. Smith has also worked as a trial lawyer and litigation partner for Latham & Watkins and Patton Boggs, where he chaired the government investigations and white-collar practice groups. During his career, Smith has tried over 100 criminal and civil cases and represented companies and individuals in criminal, regulatory, antitrust, toxic-tort, employment, insurance coverage, and class action litigation and congressional investigations. His perspective provides unique and at times brutal insight into how the NFL, its leadership, and team owners operate and the obstacles they present to a fair hiring system.
**Carl Lasker is a JD Candidate at Yale Law School (’24), who as co-author and teaching assistant to Professor Smith, provided invaluable research, writing, and insight that were indispensable to this article.
The authors are indebted to Heather McPhee, Esq. for her editing efforts and other contributions, and they also thank former NFL Coach Terry Robiskie, Cari Grieb, Esq., Don Davis, Ira Fishman, Esq., George Atallah, Samarth Gupta and Mark Cobb for their contributions.
This scholarship reflects historical, factual, statistical analysis that includes personal observation and where opinions are expressed, they are those of the authors. A version of this article will appear in a future issue of Yale Law and Policy Review.
Dedicated to my third Great-Grandparents, William Fitzgerald and Amarietta Gregory, who were born into the institution of slavery and to their descendants who fought and continue to fight against its legacy.
Introduction
The National Football League (NFL) and its member teams have failed to implement any policies, including the Rooney Rule, that are capable of effectuating sustainable racial and gender diversity in their coaching and executive ranks. This article presents a list of reforms the NFL should and must make to rectify years of deliberate inaction and argues that–given the lack of internally driven effective change–federal, state and local governments should exercise their lawful oversight capacity to ensure reform.[1] It also analyzes and addresses the NFL and its teams’ unfair hiring practices and presents a stark record of these practices, untethered from the myths and untruths perpetuated by the League and its defenders. It reviews the construct of the NFL’s operations; assesses the NFL’s failure to diversify; evaluates the history and failure of the Rooney Rule; presents results from a confidential survey of current and former coaches of color; reviews hiring decisions and rationales presented by NFL owners; examines strategies the NFL uses to insulate team owners from accountability; and identifies potential legal and oversight-based claims that could be pursued by various stakeholders, including current, former, and prospective coaches, government entities, former and current players, and the NFL Players Association (NFLPA) against the League and its teams.
[1] The authors would like to express gratitude to those students at Yale Law School who also helped with this article. We look forward to its publication in Yale Law and Policy Review.
As demonstrated below, we believe that the evidence overwhelmingly demonstrates that the lack of diversity in the NFL coaching and executive ranks is not an accident but rather the result of a deliberate—or deliberately indifferent—policy of control exerted by the NFL owners.
The Rooney Rule, which is the NFL’s self-imposed structure to rectify discrimination and improve diversity, has failed. While numerous articles have discussed the obvious deficiencies of the Rooney Rule, this article attempts to answer the question of why it was doomed to failure from its inception, and why it should be abandoned and replaced with a set of bold leadership steps to limit the discretion of NFL team owners in order to ensure a more fair and inclusive hiring system. The NFL enjoys extraordinary advantages through tax benefits, special treatment vis-à-vis antitrust laws through legislation (including the Sports Broadcasting Act of 1961 [SBA] that undergirds the NFL’s multi-billion dollar broadcast revenue and legislation granting limited immunity from antitrust law that enabled the merger of the AFL and NFL in the 1960s), as well as stadiums with public funding, and other federal and state governmental benefits. It is only fair and right and lawful that such benefits should come with meaningful exercises of oversight to ensure that the NFL’s multi-billion dollar business, and the NFL team owners who are the primary economic beneficiaries of this landscape, are responsive and accountable to laws requiring fairness in hiring.
Statement of Interest
Although the fair treatment of NFL former, current, and prospective coaches and executives is outside of the normal purview of a professional athletes’ union, the last fourteen years have provided the authors with unique insight regarding League operations, NFL owner dynamics, and most importantly, an understanding of how critical a labor union is to the protection of workers in a closed and largely non-accountable business system. In short, despite annual revenue that will reach nearly $20 billion this year and individual teams worth more than $6 billion apiece, the NFL and its teams face little to no oversight by any governmental authority, and there are few mandated public disclosures by the teams or the League office. Sports labor unions like the NFLPA remain one of the few stakeholders with the ability to act as a “check” against this multi-billion dollar entity that operates unlike most businesses in the world.
Our motivations for this article are threefold. First, for those who love the game, we believe that it is important to set forth an argument that there needs to be equity and fairness off the field as much as fans demand it on the field. The League imposes a myriad of rules and regulations on the playing field, on the players, and for “football operations” among its teams that are designed to ensure “competitive balance”; that competitive balance among teams is acknowledged as being vital to sustaining fan interest and the overall business model. At the same time, off the field, the lack of binding rules or true accountability with respect to hiring results in a system that is clearly unfair. This wildly economically successful business ecosystem has failed to develop and impose on its team owners systemic rules and regulations that effectuate fair and equitable hiring of diverse coaches and executives. Simply, there is no corresponding set of “off the field” rules to ensure fairness in hiring and to promote diversity despite the litany of rules for the game.
Second, while many commentators have discussed the issue of the disparity among coaches in the NFL, almost none of these commentators have first-hand insight into how the NFL really operates. This article attempts to synthesize the history and previous scholarship and further develop those insights with analysis enabled by unique knowledge and understanding of NFL operations, along with contemporary data from recent lawsuits and surveys. Based upon this amalgamation of perspectives, we contend that many of the often-mentioned proposals to correct the status quo (i.e., internal task forces, brand attacks, increased minority ownership of teams, and punishments of teams in the form of draft selections) have failed or will fail because the NFL is designed to withstand such proposed solutions. Instead, we make recommendations that the NFL should embrace not as the “end” of the discussion but the beginning. We believe that the recommendations proposed in this article should be addressed by the state agencies, state Attorneys General, local governments, and the Congressional committees that are indispensable and central to the uninterrupted success of the League.
Moreover, at the time of publication of this article, the Supreme Court reversed decades of precedent and ruled that using race as a factor in college admissions is unconstitutional. This will lead some people, likely including some NFL owners, to believe that racial diversity efforts no longer have a clear defense in federal law or, even more likely, that there is no longer a need to focus on fair and equitable hiring practices. Even more troubling, they may believe they are justified in scuttling the entire issue. As a strict legal matter, the Supreme Court’s ruling does not directly impact private businesses. But the reality of its possible impacts beyond the specifics of that case is troubling. The need, therefore, for fair, equitable, and lawful hiring practices in the NFL can never be greater, and the necessity of government investigation and oversight as well as the enforcement of equitable hiring practices has never been more necessary.
Third, our last motivation is purely aspirational. There are NFL team owners and senior leadership in the NFL who believe that the hiring systems should change to ensure fairness and the betterment of the NFL. The NFL is facing a crossroads; its senior leadership will change in the next five years. The issue of the lack of front office and coaching diversity was inherited by some, and the future offers an opportunity to make major decisions to resolve these long-standing egregious issues. We propose that, in the absence of intervention by various government actors to force systemic change, the hope for sustainable, systemic, positive change for coaching and executive diversity will lie with senior owner leadership of the NFL and the Commissioner’s ability to influence them to embrace necessary, important, positive change. For all these reasons, the recommendations are for the leadership of the NFL to embrace or eschew, knowing that their reputations will be inextricably tied to this issue, which has historical and social importance because of this sport’s ability to impact culture far beyond the playing field.
Executive Summary
The most important concept necessary to understand before having a meaningful discussion about the inequity inherent in the NFL’s coaching hiring system is that this business is nearly impervious to outside influence. The NFL has escaped accountability for three reasons.
First, the NFL is a closed system of mostly non-minority billionaire owners of 32 privately operated business entities that enter into voluntary association with each other in order to maximize the value of the industry of professional football; those member businesses constitute the National Football League. Within that closed ecosystem, the owners of the private member businesses create and agree to adhere to the NFL’s Constitution and By-Laws. The governance of that closed ecosystem enables certain powerful owners to act similar to “majority shareholders” who make the key decisions that reflect the “shared rules” among the entities that comprise the NFL. While the NFL and its member teams appear to the public—and are often discussed in the media—as if they are structured as one regulated entity, and thus people may assume that this behemoth entity is subject to rigorous oversight and regulation like a publicly owned corporation, that is not that case. In fact, neither the League nor its member teams have any semblance of the accountability that many companies in the world have in their respective markets. The NFL faces neither shareholder nor consumer accountability. There is no public board of directors, there are no public compliance or audit reports, there are virtually no federal or state mandated public disclosures, nor government operational oversight. All of this should be surprising—and profoundly troubling—given the tax benefits, special antitrust treatment, stadium funding, and other publicly enabled benefits that the NFL and its member teams have enjoyed for generations.
Second, just as the lack of compliance or regulatory oversight in the NFL is unmatched, so is the special legal treatment given to the NFL to secure its economic position by disadvantaging or eliminating any substantial competitors. This means that on the front end of the economic flow chart, the NFL gets to share revenue, enter unique broadcast contracts, and in the past merge with competitors while enjoying the tax benefits of its teams being structured as distinct limited liability partnerships. NFL team owners profit from the performance of primarily non-white players and secure extraordinary public and taxpayer support for their stadiums. They employ armies of lawyers and lobbyists who effectuate their will at the federal, state, and local level. They take the taxpayers’ money, and they eschew any concomitant government accountability or oversight. This shields owners from meaningful consequences for improper or illegal behavior.
Third and equally important, the unparalleled and pervasive economic success of the NFL means that there is no economic consequence for owners’ failure to abide by fair hiring practices, and worse, there is no fear held by NFL owners that they may ever face such a consequence. NFL owners hold a complete lock on professional football. The NFL’s overall television ratings vastly outperform other television programming. NFL owners sell multi-year seat licenses that require fans to purchase tickets into the future, and they have no concern about the League losing its rank as America’s number one sport by viewership and revenue or its status as the most profitable sports system to investors. Meanwhile, these owners and investors benefit from the use of special legislation and public funds to engineer multi-billion dollar private fortunes and a system where there is no consequence for the failures to abide by fair or lawful hiring practices.
When it comes to the issue of fair hiring, the NFL’s non-accountability, special legislation, and profit structure perpetuate this “no consequence” ecosystem to insulate owners from any outside influence for change. The NFL has utilized the law, from its unique antitrust treatment to its former status as a nonprofit entity and beneficiary of taxpayer funding of stadiums, to operate seemingly above the law. The result of this confluence of benefits is the perpetuation of a system that gives NFL majority owners unfettered control over all employment decisions and practices. History demonstrates that many of the owners are completely unwilling to adhere to any structure, let alone the Rooney Rule, that would operate to limit their autonomy in order to facilitate a fair, accountable, and equitable hiring system. Our analysis creates compelling legal, moral, reputational, and business justifications for change.
Our hope, therefore, is to lay out exactly why the Rooney Rule has failed to achieve its intended results and encourage either federal, state, or local governments to insist on exercising some accountability given the lucrative benefits conferred upon the NFL. In the absence of reasonable governmental oversight, only individual lawsuits by aggrieved coaches, perhaps aggressive concerted action by NFL players or the voluntary adoption of the recommendations presented below by the NFL teams has any real prospect of success.
This article examines the current state of diversity and inclusion in the NFL and establishes the immediate need for intentional, bold reform. Recently, a confidential survey was sent to 65 current and former NFL coaches of color and 47 responded, revealing that:
- Nearly 90 percent of survey respondents reported that they believe that NFL and its owners do not adhere to federal statutes against discrimination.
- Nearly 70 percent of respondents reported that the NFL League office is not responsive to equity, discrimination, and fair hiring issues.
- 80 percent of respondents reported that they were never briefed on fair employment guidelines set forth by the United States Equal Employment Opportunity Commission or related laws and regulations governing fair employment.
- 90 percent of respondents said they believe that race plays a role in owners’ decisions to hire their head coaches and coordinators.
This article includes an extensive review of reports, news articles, interviews, lawsuits, and academic scholarship, and demonstrates how this system disproportionately impacts coaches and coaching candidates of color based on their identity. The article proceeds to describe how NFL teams truly operate with respect to decision-making and management, unblinded by the myths and untruths perpetuated by the League and others beholden to it. The article next explains that the Rooney Rule and other League-wide diversity policies have failed and even worse, were doomed from inception. The article closes with a discussion of various laws the NFL and its owners may be violating.
To inform this discussion, the article begins with specific recommendations designed to overhaul NFL’s approach to hiring, retention, and promotion based on transparent processes and protocols with clear goals and an accountability system that punishes non-compliance.
The Smith/Lasker Recommendations
The Smith/Lasker Recommendations for Creating a Fair and Equal NFL Hiring System
We believe that the NFL and its member teams should adopt comprehensive processes that are fair, non-discriminatory, and better designed to hiring, retaining, and promoting the most qualified individuals.
As we will reiterate in this article, analysis of the history, law, and practice of the NFL leads us to conclude that this is the only possible solution to achieve a process that is not inherently discriminatory. The persistent failures of the NFL to create a non-discriminatory hiring system, one that adheres to the goal of facilitating diversity and inclusion in its business, are the troubling result of the structure and intent of the organization itself. The facts reveal that NFL ownership oversees a system resulting in bias, racism, and discrimination that results in a blatant lack of diversity among head coaches and executives. NFL owners’ refusal to adopt lawful, fair, and transparent hiring processes has tarnished the integrity of the NFL, and it may ultimately impact its continued success. Until there is a change, history has and will continue to demonstrate that discrimination is the blatant and perpetual legacy of every NFL owner.
While many of these recommendations place more control and accountability within the League office, we believe that, absent government intervention, this is the only hope of both employing uniform rules and holding the teams accountable. Accordingly, we propose the following recommendations to both the public and the NFL in the hopes that the NFL will adopt them:
- The NFL should eliminate the current Rooney Rule altogether as a failed experiment that neither does service to its namesake nor serves the goals of creating a fair hiring system.
- The NFL should adopt a consistent, fair, transparent, and lawful system by which all NFL teams must comply with respect to hiring and retention. The NFL should immediately abandon its current hiring system and replace it with one that fairly evaluates talent, constrains team ownership from engaging in unlawful and/or meaningless “check the box” protocols, and enforces a deliberate, professional, and accountable system.
For example, the NFL should begin striving toward this goal by requiring compliance with NY City Local Law 59, which requires transparency in job postings with respect to salary and compensation. This law mirrors laws in California and Colorado (both of which host teams) and would eliminate the complete uncertainty in the current coaching job market. Given that the NFL League office is headquartered in New York City, all of the teams arguably have a legal obligation, if not moral and ethical obligation, to comply with laws that increase transparency. - The NFL should eliminate any rule, custom, or practice requiring coaches to seek permission from team owners to apply for jobs with other teams.
- The NFL should select an outside monitor to periodically audit team hiring processes and publish an annual report on the successes and failures of team hiring, retention, and promotion across all employees. This would include building “best practices” models at both the team and League office level with respect to human resources, compliance, diversity, and fairness in hiring practices.
- The NFL should require its chief diversity officer to develop League-wide job descriptions, contracts with uniform standards, objective guidelines, and lawful interview questions for all senior and executive positions, including head coach, general manager, and team president or CEO.
- The NFL should adopt strict and significant punishment systems for team and League officials that fail to abide by these recommendations and the established protocols for a fair workplace. This system should be jointly administered by the outside monitor and the NFL Commissioner and provide for significant and mandatory fines payable to entities outside of the NFL system. These fines should start at $5 million and escalate for individuals and clubs who violate the adopted system. The reality is that teams do not care about draft picks or minor fines as punishment for violating League guidelines. The proof is that we still have consistent and repeated violations of the Rooney Rule process and have not achieved the Rooney Rule’s goal.
The NFL uses significant fines to police player conduct both on and off the field, and it would argue that these fines promote uniformity and protect the NFL “product.” It is ironic that the League has not adopted a similar “zero tolerance” fine structure when it comes to achieving a fair and inclusive workplace. - The NFL should develop uniform and consistent evaluation guidelines for all coaching, senior and executive positions. All NFL coaches should be reviewed annually like NFL referees are, and the results should be shared with senior team and League membership.
- The NFL should develop and implement policies specifically limiting nepotism.
- The NFL should require that every NFL coaching, senior, and executive position be posted with a specific job description and held open for at least 30 days. With respect to head coach hiring and coordinator positions, the NFL should additionally require that no position can be filled until a certain number of days following the Super Bowl. This will ensure that every candidate has time to apply for open positions, and it will prevent teams from ignoring qualified candidates who are unavailable because their teams are playing in the NFL playoffs. In contrast, potential NFL players cannot be hired until all the available candidates are available to all of the teams either through the draft or free agency.
- The NFL should engage in every effort to help prospective head coaches and coordinators to gain experience. For example, the NFL currently prevents active team coaches from coaching in the NFLPA Collegiate All-Star Game despite knowing that such opportunities help candidates gain head coaching experience and provide skill sets for their coaching résumés.
- The NFL and the outside monitor should annually interview and evaluate every coach who believes that they may be interested in a position change in the upcoming year and evaluate their qualifications. NFL teams have habitually interviewed qualified candidates only to provide some baseless, hidden, and imprecise grounds for favoring other candidates. To counteract this practice, there should be an interview and evaluation process for all interested coaches that would result in the teams reviewing some candidates that have already been evaluated as superior and qualified (or theoretically unqualified) coaching candidates. This puts pressure on the teams to provide a more quantifiable and justifiable basis for their decisions. Annually, the NFL would then publish a deidentified report of whether these “qualified” candidates were interviewed by teams and the reasons underlying their hiring, promotion, or rejection.
- The NFL should drop opposition to NFL head or assistant coaches unionizing. Through collective bargaining, NFL players have a consistent, transparent, and effective method of handling violations and a system that allows the collective to engage in protective measures. A coaches union would allow coaches to decide if they want to rely on an arbitration system (with neutral judges like the NFL/NFLPA system) or a non-arbitration system to settle issues and grievances. The arbitration system has the benefit of speedier resolutions, but the current forced system where arbitrators are chosen by the NFL and operate in secrecy is a disservice to both the coaches and the entire NFL.
The current system places this burden of fighting for accountability on individual coaches, restricting them by the individual clauses of their contracts and shielding the dispute resolution process in forced secret arbitration. Coaches should be able to collectively decide and agree upon a system of their work rules much like NFL players. They should decide on their arbitration system, discrimination policies, and confidentiality provisions rather than having them dictated by the NFL.
The NFL’s system is broken. To fix it, owners need to abandon the Rooney Rule as a failure and replace their unchecked discretion with comprehensive requirements to eliminate discrimination, ensure fairness, improve diversity, and build an equitable, transparent, and accountable system. Mandating transparent processes and protocols with clear goals and implementing an accountability-based system that punishes non-compliance should improve diversity in the NFL, and it will most certainly lead to a system that is fairer than the one that currently exists. As this article makes clear, real change will require team owners and the NFL Commissioner to radically change their hiring system, which is rooted in their own control.