Only litigation, or the risk of it, will improve the NFL’s minority hiring record

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Mike Florio
·4 min read
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Another year, another round of efforts to diagnose and cure the chronic failure of the NFL to push more minority candidates to the top of the coaching pyramid.

Here’s what will happen: Words will be spoken and articles will be written and, in the end, nothing tangible will happen. Collectively, the NFL wants to improve its minority hiring practices when it comes to head coaches. Individually, team owners will continue to do whatever they want.

That’s the Billionaire’s Privilege. It’s a unique aspect of human nature that activates once a sufficient amount of wealth and power is accumulated. Gradually but inevitably, the billionaire gets what he or she wants. Gradually but inevitably, the billionaire becomes surrounded by those who say that which he or she wants to hear.

Captains of industry and accumulators of extreme wealth do not like to be told what to do. Even when it’s what they should do, they want to decide to do it on their own.

That’s ultimately the core challenge for the NFL when it comes to minority hiring practices. How can the league persuade individual owners to do the right thing without making the individual owners feel like they’re being told what to do?

The answer, as I’ve mentioned before but feel compelled to crystallize here and now, is litigation and/or the threat of it.

The NFL didn’t create the Rooney Rule in 2002 as a gesture of altruism. The league adopted the rule as an act of self-preservation. Cyrus Mehri and the late Johnnie Cochran made it clear to the NFL that its hiring practices created a very real risk of litigation — and that litigation barring some sort of change was inevitable.

Nineteen years later, the NFL keeps groping for ways to improve the end result, to make it more in line with the percentage of minority players and, more importantly, minority assistant coaches. The league wants to improve the numbers, but the league can’t make the individual owners do it.

The psychological question now becomes not whether racial bias alone taints these decisions but whether any potential bias has become exacerbated by a reluctance of owners to be perceived as capitulating — to the league office, to the media, to the mob.

It’s quite possible that only another effort to scare the NFL into thinking that a lawsuit is coming will compel true progress. Many who are reading this will cringe at the idea of litigation being the answer. The reality, however, is that the civil justice system historically has provided an important and potent mechanism for forcing true societal change.

Whether it’s the safety of consumer products or the presence of fairness and justice in employment practices or every other way that the rich and the powerful end up on equal footing with the poor and the meek in a truly impartial forum, the civil justice system holds billionaires accountable.

That’s why billionaires loathe the civil justice system. It’s why billionaires usually support political candidates who will stack the courts with business-friendly judges. It’s why billionaires cram into as many written documents as possible fine print forcing the average person to waive the constitutional right to a trial by jury and to submit to an arbitration process that makes it much easier to avoid a massive verdict, even when a massive verdict is justified.

It’s not nearly good enough, as history repeatedly has shown, to appeal to the better angels of those who run big businesses. The problem won’t be regarded as a real problem until it shows up on the balance sheet.

For the NFL, it’s not going to show up on the balance sheet until someone sues. Although the issue generates bad P.R. for the league, no one is boycotting the product over the NFL’s failure to hire more minority head coaches. Only litigation will impact the bottom line.

The NFL likely assumes that litigation won’t happen. That no assistant coach will assume the risk of being shunned from all employment with the 32 teams by taking a stand. Until someone does (or until someone makes the league believe it’s imminent), meaningful change in this context will continue to be hard for the NFL to realize.

Here’s one thing the owners need to remember in this regard. If/when a lawsuit is filed, a scorched-earth effort will commence to scrutinize all communications that may or may not shed light on the existence of an actual bias based on race. This means that the lawyers will pursue emails and text messages and conversations that could potentially become very problematic if/when they end up eventually being introduced in open court.

Only litigation, or the risk of it, will improve the NFL’s minority hiring record originally appeared on Pro Football Talk