Opinion: NFL owners keep rejecting Black head-coaching candidates. Is it time for legal action?

For all of the noise, the initiatives, committees, research reports and even various measures of progress, there’s still so much to be desired when it comes to equal opportunity for African Americans to become NFL head coaches.

Congratulations, Byron Leftwich. You called the plays for Tom Brady to help the Tampa Bay Buccaneers win a Super Bowl.

And you didn’t land even a single interview for any of the top jobs that opened up this year.

Eric Bieniemy? You didn’t ask to become the poster image of what’s wrong with the hiring process in the NFL. But it’s just happened that way. Three years, two Super Bowl appearances as the Kansas City Chiefs offensive coordinator, 12 interviews, zero job offers to become a head coach. Many wonder why. Or why not?

Never mind the passionate endorsements from the likes of Chiefs quarterback Patrick Mahomes, head coach Andy Reid and tight end Travis Kelce. Or the apparent push from QB Deshaun Watson to join him in Houston. Back to the drawing board.

From 2002 though 2020, people of color hired as coaches interviewed for six different jobs, on average, compared to 3.7 for white coaches. (Photo: Jeff Hanisch, USA TODAY Sports)

Meanwhile, white candidates with lesser resumes — i.e. Brandon Staley (Chargers), Dan Campbell (Lions) and Nick Sirianni (Eagles) — have been granted opportunities to become the next Sean McVay … or next Freddie Kitchens. A snapshot we’ve seen before.

What gives? On top of the Rooney Rule requiring teams to interview multiple candidates of color for head coach and GM vacancies and myriad, progressive attempts from NFL headquarters to bolster opportunities in a league where more than 70% of the players are Black, the optics of the reality remain disturbing.

For example, there were three Black coaches in the NFL when the Rooney Rule was established in 2003 and there are three in 2021. Maybe this is just a lawsuit waiting to happen. The court room could represent the next frontier on the NFL coaching diversity front.

Time to go to court?

Think about it. Historically, nothing has moved the needle with NFL owners like taking them to court, which with discovery, depositions, shrewd arguments and evidence, tends to open windows to greater transparency … and greater urgency.

Free agency, remember, wasn’t liberalized until a series of extended court battles culminated in 1993 with the settlement of Reggie White vs. NFL. Franchise moves? That is essential to the Al Davis legacy as he fought fellow owners during the 1980s to relocate the Raiders. In 2013, the $765 million concussion settlement changed the game for former players seeking benefits.

And hey, the Rooney Rule didn’t come about until prominent attorneys Cyrus Mehri and the late Johnnie Cochran, armed with a study in 2002 that detailed patterns of inequality involving Black coaches, floated the idea of a class action suit.

Sure, litigation can be risky. Especially against a group of you-can’t-tell-me-who-to hire NFL owners, known to unleash high-powered legal teams to fight all sorts of issues tooth-and-nail. For decades, Dan Snyder, like previous owners, won one challenge after another that allowed Washington to keep its racially insensitive name. The “Washington Football Team” change (pending a permanent name) didn’t come until sponsors applied the pressure last summer.

Long odds. That’s likely one key reason a discrimination case involving patterns of NFL inequalities has yet to wind up in court, with the last potential threat resulting in talks that led to the Rooney Rule.

“They moved in that direction because of a presumption that legal action wouldn’t work,” N. Jeremi Duru, counsel for the Fritz Pollard Alliance (FPA), said this week during a panel discussion hosted by the Global Sport Institute (GSI) at Arizona State. “I think now is the time to re-assess that presumption.

“Is that still the case under the law? If it’s still a case that a legal matter would be difficult, are the atmospherics in 2021 — after what we saw in 2020, the uprising against systemic racism in this country — different?

"Maybe it wouldn’t win in court, but maybe you have enough of a claim to get into court and force conversations and to force settlements. I don’t know what the answer is, but I know we must re-assess the premise that legal action wouldn’t work.”

GSI’s panel included Carl Douglas, who worked under Cochran on the O.J. Simpson defense team and is president of Douglas/Hicks Law; and Melissa Woods, a partner at Cohen Weiss and Simon who specializes in labor and employment law. In weighing the legal possibilities of an NFL diversity case, they seemed to agree that bringing individual cases against individual teams (a USA TODAY Sports study identified seven franchises that have never had a person of color as coach) might stand a better chance than a case against the league at large.

After all, as NFL commissioner Roger Goodell has repeatedly expressed, the individual teams hire and fire as they see fit. Still, the league-wide trends can’t be ignored. A key takeaway from a recent NFL Operations report on hiring and diversity:

— From 2002 though 2020, people of color hired as coaches interviewed for six different jobs, on average, compared to 3.7 for white coaches. Todd Bowles, the Bucs' defensive coordinator and an African-American, interviewed with 12 teams before landing the Jets job in 2015. Conversely, several white candidates, including since-fired Eagles coach Doug Pederson, Arizona’s Kliff Kingsbury and the Giants’ Joe Judge, landed jobs with the first teams they interviewed with.

The report also revealed patterns of progress, including increases over 2020 in the number of candidates of color and interviews for the top jobs, the hires of Black general managers (three, vs. zero in 2020) and offensive coordinators (three, vs. zero in 2020), which is typically a stepping-stone position to a head-coaching job (although that hasn’t been the case for Bieniemy and Leftwich). 

A sacrificial lamb

The legal experts pondered an essential question: Who would step up as a plaintiff in a discrimination case? Or as a sacrificial lamb. Colin Kaepernick launched the protest movement in the NFL in 2016 by taking a knee during the national anthem to make a statement against police brutality and systemic racism victimizing people of color, then later filed a collusion case against the NFL and was essentially black-balled. He never landed another NFL job, despite once quarterbacking the 49ers to a Super Bowl.

Anybody want to sign up as a plaintiff?

“That decision is a political one as well, in terms of even threatening changes,” Douglas said. “And I doubt there is the political will in this environment.”

Woods maintained that legal challenges have to coincide with other forms of pressure, including heat on sponsors. You know. Follow the money. Merely a legal challenge likely wouldn’t be enough, which is exactly what Rod Graves, executive director of the FPA, expressed to USA TODAY Sports recently.

Mehri, still in the NFL mix as co-founder of the FPA, won multi-million dollar settlements in discrimination cases against corporate giants Coca-Cola and Texaco. But over almost two decades, he has pushed behind the scenes with Goodell and other league officials for policy measures, rather than waging all-out legal warfare. 

Then there are the players.

Can players make a difference?

“If there was greater distress expressed by players seeking greater diversity among not only the coaching, but the general manager ranks, it may have implications,” Douglas said.

Maybe. Maybe not. Watson’s fallout with the Texans (who, incidentally, hired the lone Black coach, David Culley, during the recent hiring cycle) included dismay that the team didn’t make a run at Bieniemy, according to multiple reports.

Wesley Woodyard, a free-agent linebacker who serves on the NFL Players Association's executive committee, said during a video conference shortly before Super Bowl 55 that there is a palpable level of frustration among players — particularly Black players — in witnessing so many cases where African Americans with strong qualifications are passed over for coaching jobs.

“We see ourselves as potential leaders within the NFL community,” Woodyard said. “We want to aspire to be head coaches. We want to be GMs. But if you have guys (passed over) like Eric Bieniemy, who has done great things with that (Chiefs) offense he’s on, gone to back-to-back Super Bowls, that frustrates us as players.”

The NFLPA is in the process of devising recommendations for the league on the issue, which will be on the agenda next week when the union holds its annual meeting. It’s debatable whether a more aggressive push from the NFLPA will make a difference.  

One thing is certain. Court case or not, the issue has legs. Douglas said that he, too, has long been skeptical of whether there is enough legal ground to stand on in fighting the NFL over diversity hiring.

“Johnnie would always say, ‘Oh, Carl. Don’t confuse me with the law,’ " Douglas said. “But the law can always be used as a vehicle for change. That’s what I’ve learned.”

If there are lessons coming for the NFL and its teams, it surely would take a change in venue.

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