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.


[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).

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