'Defending the NFL:' Former Attorney General Loretta Lynch takes surprising position in fighting Brian Flores lawsuit

The worn Bible, more than a century old, belonged to Frederick Douglass, the former slave who became a renowned crusader for racial equality. When Loretta Lynch chose to use that Bible in 2015 to take the oath office as the first Black woman to serve as U.S. Attorney General, it’s unlikely anyone could have foreseen a choice she would make almost seven years later.

She will defend the NFL against a proposed class action racial discrimination lawsuit filed by Brian Flores, the former head coach of the Miami Dolphins.

“This feels like betrayal and we don’t understand why she would take on this case,” HBCU Pride Nation posted on Instagram Feb. 17, the day news broke that the NFL had hired Lynch.

Dismay extended beyond social media.

Carlos Moore, president of the National Bar Association, said there was “overwhelming disappointment” among members of the organization that includes almost 60,000 Black attorneys and judges.

“The NFL clearly has a history of alleged racial discrimination. Just look at what happened to Colin Kaepernick,” Moore said, referring to the former San Francisco 49ers quarterback.

At times in her career Lynch, 62, has fought against racial discrimination. But the NFL case along with her work in recent years is sending a different, and sometimes confusing, message.

For example, she has represented McDonald’s in three high-profile racial discrimination lawsuits. Like the NFL, the fast-food chain has faced allegations of racial discrimination dating back several decades.

Lynch also did crisis management work for BlackRock, the world’s largest assets manager, and Syracuse University, after both contended with allegations involving racial discrimination.

Attorney Douglas Wigdor, who represents Flores against the NFL, said this case of unemployment discrimination differs from Lynch’s previous work.

“She’s obviously a well-respected, highly regarded lawyer,” Wigdor said. “But her expertise definitely is not in this area of law. And given her background in civil rights … it is definitely surprising to see her defending the NFL in a race discrimination case of this magnitude.”

Can Lynch change the NFL?

Rev. Al Sharpton is among those hoping Lynch’s work with the NFL will go beyond the lawsuit, given her background transcends legal expertise.

Lynch was born in Greensboro, North Carolina in 1959.

“The year before Black students there sat down at a whites-only lunch counter, helping to spark a movement that would change the course of this country,’’ then-President Barack Obama said in 2014 when he nominated Lynch for Attorney General.

She was the daughter of a school librarian and a fourth-generation Baptist minister.

“Loretta rode on her father’s shoulders to his church, where students would meet to organize anti-segregation boycotts,’’ Obama said. “She was inspired by stories about her grandfather, a sharecropper in the 1930s, who helped folks in his community who got in trouble with the law and had no recourse under the Jim Crow system."

In January 2016, having been sworn in as Attorney General, Lynch stood behind a lectern at the annual Martin Luther King Jr. Day breakfast sponsored by Sharpton’s National Action Network.

She proclaimed the Civil Rights Division had been “revitalized” under the Obama administration.

“We have filed more criminal civil rights cases and prosecuted more defendants on hate charges than at any other point in the Justice Department history,” she said.

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Having heard Lynch’s conviction to civil rights long before the NFL retained her in February, Sharpton expressed cautious optimism that Lynch could help increase the numbers of Black candidates being hired as head coaches and executives.

Currently there are two Black head coaches – Mike Tomlin of the Pittsburgh Steelers and Lovie Smith of the Houston Texans – in a league where nearly 70% of the players are Black.

“Our hope is she could get the NFL to come to the table and deal with some of these longstanding issues,” Sharpton told USA TODAY Sports.

Now that sounds unlikely.

Lynch will work alongside Brad Karp, chairman of the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, where Lynch is a litigation partner. They will represent not only the league, but all of the named defendants, which include the Dolphins, New York Giants and Denver Broncos.

And the scope of Lynch’s role will not include reviewing the NFL’s policies, according to league spokesman Brian McCarthy.

“We have already met with a number of outside experts and advocates and that work continues,” McCarthy told USA TODAY Sports via email.

Lynch did not respond to multiple interview requests, and a spokesperson for Paul-Weiss directed USA TODAY Sports to comments Lynch made about the case at a news conference this month.

“Whenever these issues come to the forefront and are outlined in ways as coach Flores has, there is concern as to whether the issues will be addressed fully and fairly and openly,” Lynch said. “And that’s what I think people are expressing.”

'I guess money talks'

For more than two years after her term as Attorney General ended, while helping take care of her elderly parents in North Carolina, Lynch had time to figure out her next step.

Joining the Paul-Weiss firm in 2019, Lynch said one of the deciding factors was its “historic commitment to social justice and pro bono work,” according to her bio from a Black In-House Counsel Network event last year.

Paul-Weiss has had a role on nearly 25% of all cases involving the league in U.S. federal courts since 2007, according to Bloomberg Law data. That includes representing the NFL in a class action concussion lawsuit filed by former NFL players.

In 2013, the sides reached a settlement of $765 million to be paid to former players suffering from cognitive issues linked to football. In order to qualify, players had to undergo various examination and tests, which, unbeknownst to them, included "race norming," the practice of assuming Black people start out with lower cognitive function.

Race norming was halted this year after players filed a civil rights lawsuit against the league. The practice is referenced in the lawsuit filed by Flores, who was fired by the Dolphins in January after the team’s first back-to-back winning seasons since 2003.

“Put simply, the NFL took the position that white people simply have better baseline cognitive function than Black people,’’ the lawsuit states. “This is the very definition of racism – the assumption that someone is not as smart as another person because of the color of his or her skin. It also perhaps explains why the NFL and its teams are so loath to hire Black head coaches, coordinators and general managers, just as for years the league discriminated against Black quarterbacks."

Flores was hired by the Steelers as a senior defensive assistant/linebackers coach after he was fired by the Dolphins despite the team’s 8-1 finish last season.

“The purported basis for his termination was alleged poor collaboration,’’ the lawsuit states. “In reality, the writing had been on the wall since Mr. Flores’ first season as head coach of the Dolphins, when he refused his owner’s directive to ‘tank’ for the first pick in the draft.

“Indeed, during the 2019 season, Miami’s owner, Stephen Ross, told Mr. Flores that he would pay him $100,000 for every loss, and the team’s general manager, Chris Grier, told Mr. Flores that ‘Steve’ was ‘mad’ that Mr. Flores’ success in winning games that year was ‘compromising (the team’s) draft position.'"

The NFL responded the same day the lawsuit was filed.

“We will defend against these claims, which are without merit,” the league said in a statement.

Joey Jackson, a prominent legal analyst, said the NFL choosing Lynch signals the league does not want to battle in court over this lawsuit.

"She’s a fixer,'' Jackson said. "She gets things done. And she’s a unifier.

"Why is that important? I think that you’re not going to see scorched-earth litigation here. I think this is a recognition by the NFL that there’s work to be done. And I think that the hiring of her is more meant to fix the problem than to bring home a victory for the NFL.''

There's no sign of unity yet.

The law firm representing Flores has said the Dolphins and its attorneys, Paul-Weiss and Quinn Emanuel, are pushing for the matter to be heard in a “secret arbitration proceeding to which the public would not have access.’’ The law firm also said it filed a letter with NFL commissioner Roger Goodell objecting to arbitration.

Flores wants the matter heard in court.

"Commissioner Goodell now has a choice to make,'' Flores said in a statement. "Will he allow this case and future race discrimination claims to play out in a transparent and public legal process, or continue along the same unacceptable path?''

How might Lynch affect the calculus? Her work for McDonald's reflects options.

In one lawsuit, McDonald's agreed to pay $33.5 million to Herb Washington, a Black McDonald’s franchisee and former pro baseball player, for 13 restaurants. In another lawsuit, McDonald's agreed to pay $6.5 million to James and Darrell Byrd, two Black franchisees, for four restaurants.

In exchange, the plaintiffs dropped claims that McDonald’s relegated Black franchisees to its oldest stores in its urban neighborhoods, preventing them from achieving the same success as white franchisees.

Yet Lynch has shown no sign of settling a $10 billion lawsuit filed by Byron Allen, the media mogul who has accused McDonald’s of racial discrimination for not advertising with Black-owned media.

"This case is about revenue, not race,” she has said in a statement. “We believe there is no evidence supporting this meritless case.”

Attorney Louis "Skip'' Miller, who is representing Allen, said of Lynch, "She’s a good lawyer and a class act in an important case. Honest, straightforward, competent."

But James Ferraro, who is representing plaintiffs in another of racial discrimination lawsuit against McDonald’s said of Lynch’s involvement in the case, “All I can say is I guess money talks.”

Lynch made a base salary of about $200,000 as Attorney General. In 2021, profits per partner at Paul-Weiss were on track to exceed $6 million, Karp told Bloomberg Law.

The billable hours can pile up without a lawsuit even being filed.

Making change from within?

Paul-Weiss’ history with the NFL also includes “Deflategate,” as the firmed conducted an investigation in 2015 to determine whether the New England Patriots improperly deflated footballs to gain an advantage in the 2014 AFC Championship game.

The outcome: Patriots quarterback Tom Brady served a four-game suspension, and the Patriots were fined $1 million and stripped of a first-round pick and fourth-round pick.

Internal investigations appear to have provided Paul-Weiss a steady stream of income. The firm has not publicly disclosed its fees, but it took in $3.6 million in 2013 for an investigation of Billy Hunter, then head of NBA players union, according to news media outlets citing union's financial filings with the U.S. Department of Labor.

The outcome: Hunter was fired after a scathing report in which Paul-Weiss said it uncovered questionable business practices.

These are but a couple examples of the company that retains Paul-Weiss to conduct an investigation receiving a favorable outcome – and Lynch has entered the arena.

Last year, BlackRock, the world’s largest assets manager, hired her to conduct an investigation after former employees said they had experienced discrimination and sexual harassment while working for the company.

After Lynch submitted the report, BlackRock CEO Larry Fink wrote in a memo that the company would create new support channels for employees and start evaluating the conduct of senior leaders, including himself, according to a Reuters story.

Essma Bengabsia, an Arab-American Muslim who said she was sexually harassed and discriminated against on the grounds of her race, religion and gender while working for BlackRock in 2018 and 2019, addressed Lynch’s work for the company.

“I understand that lawyers may choose to engage with certain clients to ‘make change from within,’ “ Bengabsia told USA TODAY Sports by email. “While I disagree with Ms. Lynch’s decisions to represent BlackRock and the NFL, I have great respect for her and hope that she is able to create the positive impact that she seeks through her approach.’’

Then there was Lynch’s work for Syracuse University.

In 2020, after Black students led weeks of protests over the university’s handling of incidents of racism and bias and demanded reform from the school’s Department of Public Safety (DPS), Syracuse hired Lynch to lead an investigation into DPS.

Lynch and her team included students, faculty, administrators and DPS officers, according to their report, which concluded the DPS “fell short” in its response to racist and anti-Semitic graffiti incidents on campus and student protests that followed.

Justine Hastings, who was president of the Student Association at Syracuse in 2020-21, said she and Jeremy Golden, vice president of the Student Association at the same time,

told USA TODAY Sports they don’t think Lynch’s report acknowledged race to the extent it should have.

Josh Shub-Seltzer, who was parliamentarian of the Student Association in 2020-21 and said he spoke to Lynch during the investigation, also said the report did not go far enough in explaining race’s role in the tension between students and DPS.

The report cited the “mistrust” between DPS officers and students of color and ways for it to be addressed: anti-bias trainings and community policing.

In February, not long before the NFL confirmed it had hired Lynch, Syracuse University issued an update a year after Lynch made her 23 recommendations. The university said 20 of the 23 recommendations Lynch made had been implemented.

The protesters had demanded the immediate resignation of DPS chief Bobby Maldonado, deputy chief John Sardino, chancellor Kent Syverud and senior vice president for enrollment and student experience Dolan Evanovich. None of the four were fired, and Hastings said that’s one reason some students were disappointed with Lynch’s report and recommendations.

Now Lynch will be defending the NFL, as Flores tries to hold the league accountable for his allegations of racial discrimination.

Malique Lewis, a sophomore at Syracuse, said he recently read Lynch’s report while trying to organize an event to bring together students and DPS officers.

“The Black community was always appreciative that she broke barriers,” he said, while also saying he was surprised to learn Lynch will be defending the NFL. "I hope she’s doing it for the right reason."

This article originally appeared on USA TODAY: Former Attorney General Loretta Lynch defends NFL in Brian Flores suit