Outgoing NFLPA chief calls for NFL to eliminate Rooney Rule, proposes sweeping changes to hiring practices

DeMaurice Smith's time with the NFL Players Association may be in its final days, but he isn't quite done fighting with NFL team owners.

On Wednesday, Smith published a nearly 100-page paper he has worked on for roughly two years in which he calls the 20-year-old Rooney Rule a failure and calls for its elimination, instead offering 12 recommendations for the league to create a fair and equal hiring system.

Co-written with Carl Lasker, a Yale Law student and teaching assistant to Smith at the school, Smith offers an insider's perspective on exactly why the Rooney Rule — here called a "suggestion" — has no chance of succeeding and calls on federal, state and local governments to exercise their lawful oversight to ensure reform.

"The system is broken from the inside out and outside and any effort to affect it that didn’t obligate NFL Owners to adherence or reform was doomed from the start," Smith told Yahoo Sports via text message.

As executive director of the NFLPA for 14 years, Smith guided players in the molding of two collective-bargaining agreements and multiple other issues, big and small. Coaches were not part of his purview and indeed do not have their own union to bargain on their behalf.

The Rooney Rule has been in place for 20 years, and many have written and commented on its failings. At the time it was enacted there were two Black head coaches. Two decades later that number has barely increased (there are four current Black NFL head coaches), underscoring Smith's argument.

In acknowledging the Supreme Court's landmark decision last week striking down affirmative action in private and public colleges, Smith and Lasker wrote, "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."

Recommendations include more transparency, stiffer fines

Smith and Lasker propose "a set of bold leadership steps," 12 recommendations they believe will make for more equitable hiring practices. They include:

• Changing the current hiring free-for-all system by requiring that all coaching, senior and executive positions be posted, with specific job descriptions, and held open for at least 30 days. For head coaching and coordinator positions, the league should require that no position be filled until a certain number of days after the Super Bowl, ensuring that every candidate has time to apply for open positions, and preventing teams from ignoring qualified candidates because their teams are in the playoffs
  

• The NFL adopting a consistent and transparent system by which all teams must comply with respect to hiring and retention, abandoning its current system in favor of 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." Smith and Lasker cite state laws in California and Colorado, both home to NFL teams, and a New York City law, where the league's headquarters are located, that require transparency in job listings when it comes to salary and compensation
  

• Eliminating "any rule, custom, or practice requiring coaches to seek permission from team owners to apply for jobs with other teams"
  

• The league selecting an outside monitor to periodically audit team hiring processes and publish an annual report on franchise hiring, retention and promotion across all employees
  

• Requiring the NFL's chief diversity officer to develop league-wide job descriptions, uniform standards for contracts, objective guidelines and lawful interview questions for all senior and executive positions, including head coach and general manager
  

• Adopting strict and significant punishment systems for team and league officials, overseen jointly by the league and outside monitor, that don't abide by the rules for a fair workplace, with fines starting at $5 million and escalating for individuals and teams who violate the adopted system. In the same way the league uses significant fines to police player conduct on and off the field, Smith and Lasker wrote, "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"
  

• Developing uniform and consistent evaluation guidelines for all coaching, senior and executive positions. "All NFL coaches should be received annually like NFL referees are, and the results should be shared with senior team and League membership," the pair wrote
  

• Developing and implementing policies limiting nepotism
  

• The NFL dropping its opposition to coaches unionizing
  

• Annually, have the NFL and outside monitor interview and evaluate coaches who are interested in a position change to evaluate their qualifications, and have teams provide a justifiable basis for hiring decisions. The NFL would publish a de-identified report on whether candidates deemed qualified by the league and outside monitor were interviewed by teams and the reasons for their hiring, promotion or rejection

Further, the authors want to set forth an "aspirational" argument to fans of the league that for as much as they want fairness and equity on the field, those principles should be found in off-field decisions as well.

"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," Smith and Lasker's paper reads. "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 longstanding egregious issues."

Smith and Lasker argue that though the NFL gets many concessions from government, from hundreds of millions in state and local tax dollars for stadiums to federal antitrust exemptions, the league isn't subject to government oversight or requirements either, facing neither shareholder nor consumer accountability, with no public board of directors or compliance reports. And "Governments seem content to let the NFL operate as an unbridled cartel," Smith and Lasker wrote. "Empowered by its antitrust exemptions, the NFL has become the wealthiest and most powerful sports league in the country. ... NFL owners use the League's popularity and lack of competition to build a network of financially-reliant media partners and personalities who insulate them from any meaningful critiques."

Survey shows dim view for minorities in NFL

Last year the NFLPA sent a confidential survey to 65 current and former NFL coaches of color, and received 47 responses. Of those respondents, nearly all (92 percent) said there needs to be more transparency in the hiring process, salaries and benefits for head coaches; 90 percent said they believe race plays a role in all coaching decisions, including head coaches and coordinators; 90 percent said federal statutes prohibiting discrimination are not observed or obeyed in hiring practices; and two-thirds said the NFL league office is not responsive to issues of discrimination, equity, diversity and inclusion at the team level.

In a league where 55 percent of players identify as Black and 70 percent identify as a racial minority, currently three head coaches are Black and one is Hispanic (Miami's Mike McDaniel identifies as biracial). But by and large, team owners are the decision-makers when it comes to hiring head coaches, and the checks in place in other large businesses don't exist for members of the NFL ownership class — even the commissioner works for the franchise owners and isn't empowered to resolve issues of employment discrimination or hand down hiring mandates.

"The NFL's system is broken," Smith and Lasker write. "To fix it, owners need to abandon the Rooney Rule 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."