By Ian Landman
After leading the Miami Dolphins to their second consecutive winning season, Brian Flores was shockingly fired from his role of Head Coach. The decision was a head scratcher for many in and around the National Football League (hereinafter “NFL”). Two teams, the New York Giants and Denver Broncos, quickly moved to interview Flores for their Head Coach vacancies, but both decided to go in a different direction.
Flores’s allegation of discriminatory hiring practices in the NFL was sparked when he received a text message from New England Patriots Head Coach Bill Belichick.  Belichick accidently revealed that Brian Daboll was to be named the next Giants Head Coach before Flores’s interview process had finished. It appeared the Giants had already made their decision on who would fill their Head Coach position without Flores getting a fair shot.
Flores subsequently filed a class-action lawsuit against the NFL and all thirty-two of its teams, alleging discrimination in the hiring process citing to the contentious Rooney Rule. The Rule was adopted by the NFL in 2003 with a goal of “encourag[ing] hiring practices to foster and provide opportunity to divers[ify] leadership throughout the NFL.” The rule, however, has had little impact. Only eighteen percent of NFL coaches have been people of color since 2011. Flores brought suit alleging his interviews with both the Giants and the Broncos were shams to fulfill the rule’s requirements.
Flores’s decision to bring suit as a class-action may prove fatal before the discrimination claim can be decided on the merits. To certify his class, Flores must show:
the class is so numerous that joinder of all members is impracticable [(numerosity)]; there are questions of law or fact common to the class [(commonality)]; the claims or defenses of the representative parties are typical of the claims or defenses of the class [(typicality)] and; the representative parties will fairly and adequately protect the interests of the class [(adequate representation)].
Flores currently faces two hurdles to certifying his class: numerosity and commonality. Determining whether the class is so numerous, though, is difficult since just two other coaches have joined and more may follow. Regardless, Flores will struggle to prove the commonality prong where there are likely not questions of law and fact common to the class.
In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court laid out the two ways a class can satisfy the commonality requirement. First, Flores would have to prove the NFL used a biased testing procedure to evaluate both applicants and incumbent employees. However, the Supreme Court held this inquiry did not apply when each store utilizes discretionary decision making in evaluating applicants. Also, a policy of allowing discretion by “local supervisors” has been held by the Supreme Court to be a common and presumptively reasonable way of doing business that itself raises no inference of discriminatory conduct. The NFL, like Wal-Mart, gives essentially full discretion to the individual franchises in hiring their coaching staff so this determination would not apply.
Second, Flores would have to show “significant proof that the [NFL] operated under a general policy of discrimination” and such discrimination manifested itself “in the same general fashion.” This argument, though, would likely fail, like the Wal-Mart claimants’. The Supreme Court in Wal-Mart found dispositive that the organization had a policy of forbidding discrimination and imposed penalties for denials of equal employment. Like Wal-Mart, the NFL has a policy forbidding discrimination in their collective bargaining agreement with the NFL Players Association. Also, the NFL has imposed penalties for violating the policy as recently as 2021, where they fined the Washington Commanders $10 million for bullying, intimidation, and multiple allegations of harassment.
Like the Wal-Mart class, the Flores class will likely have to result to relying on a “social framework” analysis testifying that the NFL has a “strong corporate culture” making it “vulnerable” to racial bias. However, it would be very difficult to determine with any specificity how regularly racial stereotypes play a meaningful role in employment decisions of NFL franchises. There are a multitude of qualitative and quantitative factors the teams use to determine who they hire for Head Coaching roles. Because of this, each individual hiring decision is too attenuated to constitute a strong corporate culture vulnerable to racial bias.
Since Flores’s class will not be able to certify due to lack of commonality between the individual claims, the class-action is likely to fail before it is heard on the merits. However, Flores and each coach will be able to bring individual suits against the organizations that they allege discriminated against them. No matter the result, Flores has succeeded in bringing new light to the longstanding and continuing issue of the NFL’s “dismal diversity numbers.”
 Fired Miami Dolphins Coach Brian Flores sues NFL, Alleging Racist Hiring, CNBC (Feb. 1, 2022) https://www.cnbc.com/2022/02/01/fired-dolphins-coach-brian-flores-sues-nfl-alleging-racist-hiring.html. The Dolphins released a statement from team owner Stephen Ross justifying their decision stating, “[a]fter evaluating where we are as an organization … I determined that key dynamics of our football organization weren’t functioning at the level I want it to be….” Miami Dolphins (@MiamiDolphins), Twitter (Jan. 10, 2022, 9:34 AM) https://twitter.com/MiamiDolphins/status/1480548522550300677?s=20&t=Okku1VY0zeWnLqfT4YF0jw.
 See Patrick Walker, Brian Flores Fired: Dolphins Send Shockwaves Throughout NFL with Unexpected Divorce from Head Coach, CBS (Jan. 10, 2022) https://www.cbssports.com/nfl/draft/news/2022-nfl-draft-better-than-team-here-are-20-prospects-pete-prisco-likes-more-than-the-scouts-do/.
 See Marcel Louis-Jacques, Brian Flores Sues NFL, Three Teams as Former Miami Dolphins Coach Alleges Racism in Hiring Practices, ESPN (Feb. 1, 2022) https://www.espn.com/nfl/story/_/id/33194862/brian-flores-sues-nfl-others-former-miami-dolphins-coach-alleges-racism-hiring-practices.
 Tyler Lauleta, Brian Flores’ Discrimination Lawsuit is Exposing the NFL’s Worst-Kept Secret – the Rooney Rule is Failing Black Coaches, Insider (Feb. 4, 2022) https://www.insider.com/brian-flores-lawsuit-rooney-rule-failed-2022-2.
 Id. The text message stated, “[heard from] Buffalo & NYG that you are their guy.” Flores then asked if Belichick meant to text Brian Daboll, another top candidate for the Giants Head Coach job who was currently the Buffalo Bills Offensive Coordinator. Belichick responded “I double checked and misread the text. I think they are naming Brian Daboll. I’m sorry about that.” Id.
 The Athletic NFL Staff, Brian Flores NFL Lawsuit: Live Updates, News as Former Dolphins Coach Files Discrimination Suit, Signs with Steelers, The Athletic (Feb. 22, 2022) https://theathletic.com/live-blogs/brian-flores-nfl-lawsuit-live-updates-news-as-former-dolphins-coach-files-discrimination-suit-against-all-32-teams/PqUm2Bl11Qjl/ (Flores specifically named the Miami Dolphins, the New York Giants, and the Denver Broncos).
 The Rooney Rule, NFL Football Operations, https://operations.nfl.com/inside-football-ops/diversity-inclusion/the-rooney-rule/ (last visited Apr. 14, 2022).
 See generally Scott Neuman, Why a 20-Year Effort by the NFL Hasn’t Led to More Minorities in Top Coaching Jobs, NPR (Feb. 3, 2022) https://www.npr.org/2022/02/03/1075520411/rooney-rule-nfl.
 Id. (currently Mike Tomlin of the Pittsburgh Steelers is the only Black Head Coach. Ron Rivera, Latino, of the Washington Commanders and Robert Saleh, Lebanese dissent, of the New York Jets are the only other nonwhite Head Coaches in the NFL.)
 Lauleta supra note 5.
 Fed. R. Civ. P. 23(a)(1-4).
 Ken Belson, Two Black Coaches Join Brian Flores’s Lawsuit Against the N.F.L., N.Y. Times (Apr. 7, 2022) https://www.nytimes.com/2022/04/07/sports/football/nfl-discrimination-ray-horton-steve-wilks.html.
 Fed. R. Civ. P. 23(a)(2).
 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 353 (2011), Telephone Company of the Southwest v. Falcon, 457 U.S. 147,159 (1982).
 Wal-Mart Stores, Inc., 564 U.S. at 353.
 Id. at 355 (only unreasonable when the plaintiff can identify “a common mode of exercising discretion that pervades the entire company”).
 Deena Zaru, NFL Says Each Team Must Hire Minority Offensive Coach Amid Push for Diversity, ABC News (Mar. 29, 2022) https://abcnews.go.com/US/News/nfl-team-hire-minority-offensive-coach-amid-push/story?id=83742037 (new NFL rule requires all teams to hire at least one minority or female coach as an offensive coach).
 Wal-Mart Stores, Inc., 564 U.S. at 353.
 See id. at 353-54.
 Tiffany Anton, NFL’s Anti Discrimination Policy Includes Sexual Orientation, Bleacher Report (Sept. 27, 2011) https://bleacherreport.com/articles/868038-nfls-anti-discrimination-policy-includes-sexual-orientation (“There will be no discrimination in any form against any player by … any Club … because of race, religion, national origin, sexual orientation …”).
 NFL Fines Washington Football Team $10M Following Investigation Into Team Culture, NFL (July 1, 2021) https://www.nfl.com/news/nfl-fines-washington-football-team-10m-following-investigation-into-team-culture.
 Wal-Mart Stores, Inc., 564 U.S. at 354.
 Id. at 344, 357 (even if a regression analysis shows a pattern of discriminatory hiring, it would fail to demonstrate that commonality of issues exists).
 See e.g., Sean Tomlinson, The Terrifying Process of Hiring a New Head Coach in the NFL, Bleacher Report (Jan. 3, 2017) https://bleacherreport.com/articles/2684789-the-terrifying-process-of-hiring-a-new-head-coach-in-the-nfl (interviewing former Philadelphia Eagles President Joe Banner on his criteria for filling the 1999 Head Coach vacancy).
 See discussion supra § III.
 See e.g., Wal-Mart Stores, Inc., 564 U.S. at 359-60.
 China Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1805 (2018).
 See e.g., Zaru supra note 19 (The NFL, in response to the Flores suit, has announced a new rule requiring all teams to hire at least one minority or female coach as an offensive coach), Belson supra note 14 (NFL has begun to reconsider the Rooney Rule).