Expansion of the Rooney Rule: the NFL Shaping State Legislation

By: Paul L. Scrom, JR.

The end of another NFL season means another round of hiring for vacant head coach and other senior football operations positions.  With the Rooney Rule in effect, every NFL team looking to fill those slots needs to interview at least one minority candidate.[1] The Rooney Rule is often debated, like most affirmative action programs, as to whether or not it is effective.[2] Critics of the rule often point to the fact that teams only follow the form not the spirit of the rule: NFL organizations interview a minority candidate, with no possibility of hiring them, only because they have to.[3] The New York Giants’ defensive coordinator Perry Fewell is a prime example for such critics.  At the end of the 2010 season, four teams out of the seven that had head coach vacancies or interim coaches interviewed Fewell.[4] None of those teams offered him a job.[5] Although Fewell is optimistic in believing he is not a victim of the rule[6], he is not the only African American to be seen as being used to satisfy it.[7] The rule does indeed have its flaws, but many still feel the equal opportunity program is effective.

Proponents of the rule justify it for tackling the disparity between the percentage of minorities who are NFL players and the percentage who are coaches.[8] Prior to implementation of the rule in 2002- 2003 season, there was an average of two minority coaches per year, but afterwards that average rose to six.[9] The rule helps to combat an “unconscious bias” said to be prominent in hiring decisions, something that affects not only NFL executives, but executives more broadly.[10] Mike Tomlin of the Pittsburgh Steelers, one of the most successful head coaches, is considered a poster boy for the Rooney Rule.  Since his hiring in 2007, Tomlin became the youngest coach in NFL history to win the Super Bowl, one of three African Americans to do so, and one of two to do so after implementation of the rule.[11] Although there was another minority candidate interviewed in the 2007 hiring, Tomlin has been touted as proof of the rule working, especially since he was only coaching in the league for four years prior as Tampa Bay’s defensive backs coach.[12] Changes in the head coaching composition of the NFL since the rule tend to show it has had its intended effect.

The effectiveness of the rule in the NFL has led others to implement the rule elsewhere, or at the least think about doing so.  For example, after a study showed that 92% of executives involved in advertising during the Super Bowl in 2010 were Caucasian, compared to only 7% African American, industry critics started to call for the implementation of the rule.[13] Other professional sports associations have also looked into applying the Rooney Rule, but the disparity between minority head coaching positions and minority players in the NBA or MLB is not nearly as large.[14] The NHL has not had a large minority presence in the typical sense, rather their minority battle lies between American and Anglo Canadian versus French Canadian and European.[15]

The most debate over the concept of the rule, besides the NFL itself, has been in college sports, and specifically College Football.  The NCAA has been reluctant to incorporate such a rule into their system, only “encouraging” universities to interview at least one minority candidate.[16] There are no fines or penalties, like those given out in the NFL, for failure to comply.  In fact, it is only an encouragement and not an incorporated rule.[17] Although there is some evidence that this encouragement has had some results,[18] many feel more concrete action is required.  State legislatures think they have the answer by applying the rule to their universities through legislation.  Oregon was the pioneer.  In 2009 the state passed legislation requiring each one of its institutes of higher learning, under its jurisdiction, to interview at least one capable minority head coach candidate.[19] Since then other states have considered a similar law.[20]

Like most forms of Affirmative Action, the Rooney Rule is hotly debated.  The future of the rule is definitely in flux, as it will continually be debated as to whether or not it is needed anymore (let alone if it were ever needed in the first place)  But, it is clear that its influence has spread enough for states to begin to incorporate it into their laws.

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[1] Tim Smith, Rooney Rule Propelling Steelers, Cards in Super Season, Daily News (NY), Jan. 28, 2009, at 58.

[2] See Kyle Bryans, Is the Rooney Rule Even Effective?, Times Union Blog, Jan. 5, 2011, http://blog.timesunion.com/highschool/is-the-rooney-rule-even-effective/17075/ (arguing the rule is obsolete and teams will hire who they want to hire regardless); Jeremi Duru, The Rooney Rule is not Perfect but it is Undeniable That it has Worked, ThePostGame, Jan. 17, 2011, http://www.thepostgame.com/commentary/201101/rooney-rule-not-perfect-it-undeniable-it-has-worked (arguing the rule is the most successful equal opportunity initiative that any league in the sports world has implemented).

[3] Eric Edholm, Lions’ President Was Made Example of for NFL’s Flawed ‘Rooney Rule,’ Pro Football Weekly.com, Aug. 1, 2003, http:// wwwedit.profootballweekly.com/PFW/Commentary/

Columns/2003/edholm080103.htm.

[4] Ralph Vacchiano, Fewell: ‘Rooney’ Rules, Daily News (NY), Jan. 23, 2011, at 59 (noting two of those teams did have one other minority candidate though).

[5] Id at 59.

[6] Ralph Vacchiano, Giants’ Perry Fewell Won’t be a Token ‘Rooney Rule’ Candidate for Broncos, 49ers, Panthers, or Browns, Daily News (NY), Jan. 6, 2011, available at http://www.nydailynews.com/sports/football/giants/2011/01/06/2011-01-06_fewell_seeking_

serious_suitors.html.

[7] Ryan Isley, Rooney Rule Claims Another Victim in Perry Fewell, Cleveland.com, Jan. 14, 2011, http://www.cleveland.com/dsn/index.ssf/2011/01/rooney_rule_claims_another_victim_in_perry_fewell.html (citing Leslie Frazier, the current interim head coach of the Minnesota Vikings, as another example who was interviewed seven times and never hired).

[8] Brian W. Collins, Tackling Unconscious Bias in Hiring Practice: The Plight of the Rooney Rule, 82 N.Y.U. L. Rev. 870, 872 (2007).

[9] Jean-Jacques Taylor, Taylor: There’s Nothing Wrong With the NFL’s Rooney Rule, Dallas News, Jan. 9, 2011, available at http://www.dallasnews.com/sports/columnists/jean-jacques-taylor/20110109-taylor-there_s-nothing-wrong-with-the-nfl_s-rooney-rule.ece.

[10] See Collins, supra note 8 at 871.

[11] Kevin Blackistone, Mike Tomlin Proves Rooneys True Rule, Fanhouse.com, Feb. 2, 2009, http://kevin-blackistone.fanhouse.com/2009/02/02/tomlin-proves-rooneys-truly-rule/.

[12] See Dexter Rodgers, Mike Tomlin’s Super Bowl Return is Proof Affirmative Action Works, Yardbarker.com, Feb. 3, 2011, http://network.yardbarker.com/nfl/article_external/

mike_tomlins_super_bowl_return_is_proof_the_rooney_rule_works/4092106.

[13] See Editorial, Ad Agencies Should Consider Trying NFL’s Rooney Rule, Adage.com, May 17, 2010, http://adage.com/article?article_id=143883; Richard Lapchick, White Men Dominate Advertising Agencies’ Creative Director Positions As Exemplified by Ads Aired During the Super Bowl, The Institute for Diversity and Ethics in Sport, May 5, 2010 at 2.

[14] Jeremi Duru, The Fritz Pollard Alliance, The Rooney Rule, and the Quest to “Level the Playing Field” in the National Football League, 7 Va. Sports & Ent. L.J. 179, 180-81 (2008).

[15] Id. at 197.

[16] Id.

[17] Id.

[18] Floyd A. Keith, ‘A Change Has Finally Come,’ BCAsports.com, Feb. 10, 2011, http://bcasports.cstv.com/genrel/021011aae.html.

[19] O.R.S. § 352.380(2)(b) (2009).

[20] See, e.g., John Solomon, Rogers Eyes ‘Rooney Rule’ for State Schools, AL.com, Jan. 12, 2010, http://blog.al.com/solomon/2010/01/rogers_eyes_rooney_rule_for_st.html (explaining Alabama’s Rep. John Rogers introduction of a bill similar to Oregon’s and the Rooney Rule); Brandon Larrabee, Legislation Aims to Give Minority Candidates a Shot at College Coaching Jobs, Jacksonville.com, Feb. 18, 2010, http://jacksonville.com/news/metro/2010-02-18/story/legislation_aims_to_give_minority_candidates

_a_shot_at_college_coaching_ (describing the introduction of a bill, presented by Florida Sen. Tony Hill, which would apply the Rooney Rule to public universities within the state).

2011 NFL Season in Jeopardy – Players File Suit

By: Max Schlan

Almost immediately following the expiration of the collective bargaining agreement (CBA) between the NFL and its players, a group of current and potentially future players in the NFL including QB’s Tom Brady, Peyton Manning, Drew Brees, and Texas A&M star Von Miller filed a class action lawsuit this past Friday against the NFL and the owners of the 32 teams who make up the league.[1] The complaint seeks to enjoin the league from the owner-imposed “lockout” that went into effect immediately after negotiations broke down and the CBA expired.[2]

The lengths taken by the players to bring suit is a far cry from its show of unity made during the opening game of the previous season.[3] After the announcement that negotiations have broken down and the CBA had expired, the NFL Players Association (NFLPA) filed paper with the National Labor Relations Board that it will no longer be representing the players in collective bargaining.[4] This allowed players to bring a class action with the belief that they will not be hampered by non-statutory labor exemptions.[5]

The complaint makes many allegations.  First and foremost is the alleged illegality of the “lockout.”  Players claim that the owners’ “lockout . . . constitutes an unreasonable restraint on trade . . . .”[6] They argue that the only purpose of the “lockout” is to force players into agreeing to other anti-competitive restrictions.[7] The players seek to enjoin the NFL from enacting the “lockout” because “monetary damages are not adequate to compensate Plaintiffs . . . for the irreparable harm” because of the short lifespan of a player’s career.[8]

Next, the players claim that the “entering player pool” known as the rookie draft is per se unlawful because it constitutes a horizontal agreement between teams meant to fix wages.[9] As for the reasons stated in regards to the lockout, the players seek to enjoin the upcoming draft in April.[10]

Players also seek damages on restriction to wages and free agency. They claim that the salary cap as well as the “franchise” and “transition” player designations are anti-competitive practices meant to stifle wages. [11] Assuming the “lockout” is to be enjoined, they seek monetary compensation on lost wages due to these supposed anticompetitive acts.[12]

Finally, players are alleging breach of contract for those whose contracts are still in place and tortious interference to contract for those whose contracts have either expired or have not yet contracted to play.[13] They seek monetary compensation for the injuries that may have occurred.[14]

There are many scenarios that may occur from now until the start of the 2011 season.[15] What is clear is that whatever happens from this point forward will be determined by the courts.

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[1] Aaron Kuriloff, Brady, Manning, Brees Take Super Bowl Leadership into Court against NFL, BLOOMBERG.COM, March 14, 2011, http://www.bloomberg.com/news/2011-03-14/brady-manning-brees-take-super-bowl-leadership-into-court-against-nfl.html.

[2] See Brady v. NFL, 2011 WL 836687 at par. 63, 118, 123 (D. Minn. Mar. 11, 2011) (Trial Pleading).

[3]Are Saints on Way to Another NFL Title, NPR (September 10,2010), available at http://www.npr.org/templates/story/story.php?storyId=129780856  (interview with Drew Brees).

[4] Jim Trotter, NFLPA Files to Decertify as a Union; Labor Dispute Headed to Court, March 11, 2011, http://sportsillustrated.cnn.com/2011/football/nfl/03/11/union-labor/index.html.

[5] See Brady, 2011 WL 836687 at *78-79.

[6] Id. at *120.

[7] Id. at *65

[8] Id. *123.

[9] Id. *126.

[10] Id. *67, 126.

[11] Id. *132.

[12] Id. *136.

[13] Id. *138, 143.

[14] Id. *141, 147.

[15] See generally Michael McCann, NFL and Players will now Take Labor Dispute to Courts, March 11, 2011, http://sportsillustrated.cnn.com/2011/writers/michael_mccann/03/11/whatnext/index.html (explaining possible scenarios that may occur now that the NFLPA has decertified).

Employers Under Fire: Chipotle Gets ICE’d

By: Ashley Behre

 

The Chipotle Mexican Grille fast-food chain was forced to fire over 450 undocumented workers in Minnesota this January after the U.S. Department of Homeland Security Immigration and Customs Enforcement (“ICE”) audited its I-9 employment forms.[1] The I-9 form is used to verify a prospective worker’s identity and eligibility for employment in the United States.[2]

The probe into the restaurant’s hiring practices revealed “suspect documents” that left the employer no choice but to discharge hundreds of employees unable to provide legal documentation.[3] Despite its requirement for records demonstrating employment eligibility, the company stated that “some of [its] employees may, without [its] knowledge, be unauthorized workers.”[4] The firings occurred throughout the chain’s 50 store locations in Minnesota, reducing the company’s workforce by more than one-third in that area.[5]

In response to their discharges, a group of former Chipotle employees has filed a class-action lawsuit against the restaurant alleging violations of Minnesota state law, which requires an employer to pay all wages due within 24 hours of an employee’s discharge.[6] The fired employees claim they did not receive their back pay, which includes wages, bonuses, and accrued vacation time, within the specified time period.[7] Chipotle has vowed to vigorously defend the suit and has described the claims as “without merit” because the company has paid the employees all wages owed.[8]

The inspection into Chipotle’s hiring practices represents a shift in focus for immigration officials examining employment in the United States.  Crackdowns against employees characteristic of the Bush Administration have been replaced by “I-9 audits” targeting employers.[9] By focusing on a company’s personnel policy rather than an individual employee’s legal status, ICE aims to place the burden on employers to take corrective action and assume responsibility for unlawful hiring practices.[10]

Employers have borne the brunt of the Obama Administration’s immigration policy, under which ICE recently totaled nearly double the number of employer audits than the previous fiscal year.[11] Though it is unclear why ICE has singled out Chipotle, the fast-growing business faces continuing obstacles as the investigation into its staff has spread to its Virginia and Washington, D.C. restaurant locations.[12] It will be interesting to see how effective this shift in focus is in eradicating immigration issues in the United States and whether forcing employers to bear the burden of immigration policy is the proper course of action.

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[1] See Paul Walsh, Chipotle Says it Fired 450 in Minnesota After Audit, Star Tribune, Feb. 22, 2011, available at http://www.startribune.com/business/116676199.html.

[2] See U.S. Citizenship & Immigration Servs., Form I-9 CNMI, Employment Eligibility Verification, Dep’t of Homeland Sec. (June 27, 2010), http://www.uscis.gov/files/form/i-9_cnmi.pdf.

[3] See Walsh, supra note 1.

[4] Id.

[5] The company employed about 1,200 workers in Minnesota prior to the audit.  Id.

[6] See Mike Hughlett, Chipotle Workers Sue, Say Checks Were Late, Star Tribune, Feb. 3, 2011, available at http://www.startribune.com/business/115234749.html?elr=KArks:DCiU1OiP:DiiUiD3aPc:_Yyc:aULPQL7PQLanchO7DiU.

[7] Id.

[8] Id.

[9] Chipotle Faces Scrutiny Over Illegal Workers, CNN Justice, Feb. 8, 2011, http://articles.cnn.com/2011-02-08/justice/minnesota.chipotle.immigrants_1_illegal-immigration-illegal-workers-immigration-policy?_s=PM:CRIME.

[10] Id.

[11] See Miriam Jordan, Chipotle Under Scrutiny by ICE, Wall St. J., Feb. 8, 2011, available at http://online.wsj.com/article/SB10001424052748704422204576130813007160084.html.  More than 2,700 companies were audited in the fiscal year ending Sept. 30, 2010, resulting in a record $7 million in civil fines of businesses employing illegal workers.  Id.

[12] See id.

Wisconsin Union Dispute: Let Us In!

According to TalkingPointMemo.com, the Capitol building, after choosing to restrict access, has been forced to open its doors. http://gawker.com/#!5773591/judge-orders-wisconsin-capitol-re+opened.  After the Wisconsin State Employees Union, AFL-CIO and AFSCME filed the suit against the state for access to the building, Judge Daniel Moeser granted a temporary injunction, forcing the state to once again open the building to the public, allowing protesters inside.

As a result of this order, the state has opened the building, allow patrons in on a one-to-one basis until the conclusion of normal business hours. http://www.dailycardinal.com/news/judge-issues-injunction-requiring-public-access-to-the-capitol-1.2042404

Wisconsin Union Dispute: Protesting Continues

Now in their 13th day of protesting, pro-union argument is growing louder, literally. “I am suffering from audio nausea from all these drums and shouting. I am on overload. I’m exhausted” said Edward Sadlowski, a protester at the Capitol building. http://www.theatlantic.com/politics/archive/2011/02/the-view-from-inside-the-wisconsin-state-capitol/71698/.  Starting on the 16th, when Gov. Walker introduced the Bill that would limit the bargaining rights of union workers, protesters began to congregate outside of his office, and around his home. http://www.nytimes.com/2011/02/17/us/17wisconsin.html.  Yet despite their cries, Gov. Walker has stood strong, intent to accomplish his task of cutting government spending.  Id.

But as the days pass, the protests have grown stronger and in number. Teachers have called out of work, bringing the school system to a screeching halt. Id.  And now, Dept. of Corrections officers are getting involved too. http://news.firedoglake.com/2011/02/26/protests-begin-in-capitol-rotunda-for-13th-straight-day/.

But the tenacity of the protests shouldn’t be a surprise.  “I think it’s quite possible that if they’re [Walker and the other Republican legislators] successful in doing this, a lot of other Republican governors will emulate this” said Labor Law professor at Stanford and former Chairman of the NLRB William B. Gould IV.  http://www.nytimes.com/2011/02/17/us/17wisconsin.htm.

ABA National Symposium on Technology in Labor and Employment Law

From April 27-29, the Technology in the Practice and Workplace Committee of the American Bar Association will host the ABA National Symposium on Technology in Labor and Employment Law at the New York University School of Law.  Please click on the link below for a full description of the event and for a link on where to register.

ABA National Symposium on Technology in Labor and Employment Law