Pittsburgh Steelers assistant coach Brian Flores’ civil rights lawsuit against the NFL grew on Thursday, with his attorneys filing a 100-page amended complaint that adds two plaintiffs: former Arizona Cardinals head coach Steve Wilks and longtime NFL assistant coach Ray Horton.
Wilks, an assistant coach for the Carolina Panthers, is portrayed as a victim of race discrimination by the Cardinals.
“He was unfairly and discriminatorily fired after just one season,” the complaint charges, “a season in which he was without a general manager . . . and stuck with an unready rookie quarterback drafted by the GM contrary to Mr. Wilks’ suggestion.” The complaint goes on to highlight that the 52-year-old “was replaced by a white coach, Kliff Kingsbury, who had no prior NFL coaching experience and was coming off of multiple losing seasons as a Head Coach at Texas Tech University.”
Horton’s contentions focus on interviewing for head coaching jobs, but coming up short. The complaint maintains that Horton, 61, received “sham interviews,” including in January 2016, when the Tennessee Titans “asked him to immediately get on a flight to Tennessee to interview for the Head Coach job the next day.” The reason provided to Horton, who was in Arizona at the time, was that “Titans owner Amy Adams Strunk’s granddaughter was competing in an equestrian event for which she had to get to Tampa, Florida on Saturday.” The complaint says the real reason for the rush was so that the Titans could nominally comply with the Rooney Rule before announcing a decision they had already made: Mike Mularkey would be the head coach.
To bolster this accusation, the complaint quotes from a 2020 podcast in which Mularkey allegedly said, “Amy Adams Strunk and her family came in and told me I was going to be the head coach in 2016, before they went through the Rooney rule.” Mularkey said he regretted other candidates being brought in when they had no chance. “And so I sat there,” he lamented, “knowing I was the head coach in 2016, as they went through this fake hiring process . . .”
If Flores’ lawsuit advances to pretrial discovery, Mularkey can expect to become a witness. Flores’ attorneys want to establish that if teams are superficially complying with letter—but not the spirit or substance—of the rule, then teams are discriminating against candidates on the basis of their race.
Meanwhile, the inclusion of Wilks and Horton will help Flores argue that his lawsuit, which until Thursday had only detailed Flores’ alleged experiences, (1) should not be dismissed if his own claims are preempted by arbitration and (2) should be certified as a class action on behalf of similarly situated black individuals. To that end, the trio aim to represent all black general managers, head coaches, coordinators, quarterback coaches and black candidates who applied for those jobs during the applicable statute of limitations period.
In the amended complaint, Flores and his attorneys further insist that the NFL is a “joint employer” of those in the proposed class action. This is an important point, discussed in Sportico in the context of Major League Baseball being deemed a joint employer of minor league players. If the NFL is recognized as a joint employer of coaches, the league would be legally responsible in the same way that individual teams are responsible for coaches’ employment. In other words, Flores could argue that even if his employment contract with the Dolphins contains an arbitration clause and contractually prevents him from suing the Dolphins, he could still sue his joint employer, the NFL.
The amended complaint also contains new details about Flores’ allegation that, as part of an alleged tanking plot, Dolphins owner Stephen Ross offered to pay him $100,000 for each loss during the 2019 season. As Sportico explained, this allegation is highly damning in that such bribes could constitute criminal acts under the Sports Bribery Act of 1964, in addition to providing convincing grounds for other owners to oust Ross (who categorically denies the allegation). Flores now refers to writing a memorandum on Dec. 4, 2019, in which he “memorialized” Ross’ desire to have Miami lose games. As Flores tells it, the letter was shared with three Dolphins executives, including GM Chris Grier.
The memorandum could assist Flores in establishing that he genuinely believed he was under pressure to lose games. In law, so-called “contemporaneous notes” are helpful in showing that the witness’s memory is accurate. Why? Because the witness jotted down what happened right after it occurred.
At the same time, a memorandum written by Flores doesn’t prove Ross offered a bribe. Proof could be in the form of an email, text or testimony of a third person. As a point of contrast, when then-NBA commissioner David Stern took away five first-round draft picks from the Minnesota Timberwolves as a punishment for owner Glen Taylor negotiating a “secret agreement” with free agent forward Joe Smith to circumvent the NBA’s salary cap, there was corroborating evidence of the plot. The evidence came to light in the aftermath of Smith’s agents breaking ties and their accompanying dispute over clients.
One other notable addition: The amended complaint adds the Houston Texans as a defendant. The complaint argues that the Texans, who hired Lovie Smith as head coach in February, “retaliated against” Flores “by removing him for consideration for its head coach vacancy due to his decision to file this action and speak publicly about systemic discrimination in the NFL.” Although Flores “applauded” the Texans for hiring a black coach, “it is equally problematic,” the complaint charges, “that the reason that the Texans did not hire Mr. Flores in the first place was because he filed this lawsuit and opposed systemic racism in the NFL.”
Whether Flores’ case will advance to the class certification stage or suffer an early dismissal is uncertain. The NFL, which has retained former U.S. Attorney General Lorretta Lynch as counsel and former Securities and Exchange Commissioner Chair Mary Jo White to probe Flores’ bribing allegations against Ross, and team defendants will file a motion to dismiss. The Dolphins are expected to argue that Flores’ employment contract with the team contained an arbitration provision that knocks Flores’ claims out of court. While Flores and his counsel have argued on behalf of potential federal legislation that would bar mandatory arbitration in race discrimination cases, no such law currently exists.
The removal of the Dolphins as a defendant wouldn’t automatically end Flores’ lawsuit. However, it would constitute a major blow.
Flores can personally attest to claims against the Dolphins in the three prongs of his lawsuit—hiring, employment and firing—since he worked for them for three years. In contrast, Flores’ claims against other teams and the NFL are either much narrower (allegations of one-time “sham” job interviews) or partly based on other persons’ retellings of others’ experiences.
This is where the addition of Wilks and Horton makes it more likely that Flores v. NFL will withstand dismissal. The two men offer their own set of employment experiences that they contend reflect race discrimination. Flores’ contract with the Dolphins becomes less consequential to the outcome of his case.
At the same time, it’s possible that employment contracts and other contractual provisions for Wilks and Horton might pose hurdles for them as they do for Flores. The NFL and its teams, like other leagues and their franchises, typically use employment contracts for coaches and executives. Those contracts are not only designed to preempt potential litigation, but also to clarify expectations with regard to sensitive information and trade secrets.
Later this month, Judge Valerie Caproni will hold an initial pretrial conference.
Scott Soshnick contributed to this story.