The NFL has hired a major legal figure to defend against Brian Flores’ civil rights lawsuit. Former U.S. Attorney General Loretta Lynch, a litigation partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP in New York City, has been retained, according to Bloomberg. Lynch, the first African American female attorney general in U.S. history, possesses a unique background to help the NFL thread the needle: acknowledge that the league must do better with minority hiring but stress this problem doesn’t reflect unlawful conduct.
For this case, Lynch will join firm chairman Brad Karp, who has represented the NFL over the years and who graduated with Lynch from Harvard Law School in 1984. Their firm, Paul, Weiss, is familiar with NFL controversies. It represented the league in the concussion settlement and, through the Wells Report, in investigating the New England Patriots and Tom Brady in Deflategate.
Lynch, 62, is no stranger to sports litigation. While serving as AG in 2015, Lynch brought racketeering, wire fraud and money laundering charges against more than two dozen individuals with ties to FIFA and international soccer. “The indictment,” she said at the time, “alleges corruption that is rampant, systemic, and deep-rooted both abroad and here in the United States . . . it spans at least two generations of soccer officials who, as alleged, have abused their positions of trust to acquire millions of dollars in bribes and kickbacks.”
In private practice five years later, Lynch was hired by the NFL to investigate an ownership dispute between Washington Commanders owner Daniel Snyder and three owners with minority interests. The NFL also relied on Benjamin Block, a partner at Covington & Burling LLP in Washington D.C., to navigate its interests in the matter. The dispute was ultimately settled out of court, with Snyder buying the trio out.
Lynch has been active in seeking justice for black Americans. Under her orders in 2016, the Justice Department sued the city of Ferguson, Mo., alleging racism and civil rights violations. Two years earlier, a Ferguson police officer shot and killed Michael Brown, an unarmed 18-year-old black man. Lynch’s lawsuit contained data suggesting a pattern of discrimination against black people, including in rates of arrests and warrants. It also alleged “direct evidence of racial bias among influential Ferguson decision makers.”
Lynch went so far as to blast the city for “turning backwards” and having “chosen to live in the past.” The lawsuit was resolved with an agreement that the city would implement policing reforms.
Lynch is now tasked with defending the NFL, a defendant that Flores charges, “lives in a time of the past” and is “rife with racism.” Flores’ complaint indicates that even though 70% of NFL players are black, a vast majority of head coaches and coordinators are white. “A barrier to entry,” the complaint sharply contends, “exists today for Black professionals in leadership.”
To that end, Flores maintains that the league, as well as individual teams, are in violation of federal civil rights laws. The lawsuit identifies three basic areas of illegal conduct: at the hiring stage, during employment and when an owner decides to fire a coach. Within those parameters, Flores accuses Dolphins owner Stephen Ross of attempting to bribe him to lose games.
Flores’ case captures arguments that Lynch once alleged against defendants she would describe as corrupt and racist.
Now she’s on the other side of the table.
In the weeks ahead, Lynch and other attorneys will answer Flores’ complaint and motion for its dismissal. While NFL commissioner Roger Goodell recently acknowledged “the need to understand the lived experiences of diverse members of the NFL family to ensure that everyone has access to opportunity and is treated with respect and dignity,” he carefully avoided any admission of legal wrongdoing. With Lynch’s direction, the league will dispute some of Flores’ alleged facts and contend that neither the NFL nor any team broke the law.
In addition, the league will likely underscore that it adopted the Rooney Rule, which requires that teams interview minority candidates, in consultation with advocates for diversity and job equality. The league is also poised to mention its other programs and initiatives that advance racial justice in hiring. In other words, the NFL will say it should be judged mainly by its intent and efforts rather than by the results.
Through Lynch, the league will also offer what are called “legitimate, nondiscriminatory reasons” for problems identified by Flores. For example, while Flores argues that the New York Giants gave him a “sham interview” for a head coaching position that went to Brian Daboll, the league can point out that the Giants hadn’t yet hired Daboll. Especially since coaches can back out after saying yes (see Josh McDaniels and the Indianapolis Colts), the Giants were arguably doing their due diligence.
The defense might also assert that Flores’ lawsuit is procedurally flawed. The league could contend that Flores is bound by a requirement in the NFL constitution that the commissioner has “full, complete, and final jurisdiction and authority to arbitrate . . . any dispute between or among players, coaches, and/or other employees of any member club or clubs of the League [and] any dispute involving a member or members in the League or any [employees] of the members of the League [that] in the opinion of the Commissioner constitutes conduct detrimental to the best interests of the League.”
This language might require Flores to first arbitrate his dispute before turning to the courts. In response, Flores could insist that he isn’t suing as a coach—he’s suing as a former coach. He could also maintain that the NFL and Goodell would have an obvious conflict of interest in evaluating claims against them.
As another possible defense, Flores’ contract with the Dolphins might bar him from suing until he has first exhausted mediation or arbitration (or both). Even if such language exists, Flores can argue it doesn’t apply to claims of racial discrimination or to claims concerning non-employers. He was only in contract with the Dolphins, not the league or any of the 31 other teams.
If Flores’ case advances past a motion to dismiss, Douglas Widor and Flores’ other attorneys would be able to capitalize on pretrial discovery. They could demand league officials, NFL owners, general managers and other team executives provide sworn testimony and share emails and texts. The NFL would most likely try to settle with Flores before the case advanced into discovery. There Lynch, given her background in civil rights, might be particularly adept at finding a solution.
The case is before Judge Valerie Caproni, whom President Barack Obama nominated to the bench in 2013, a year before he chose Lynch to succeed Eric Holder as attorney general.
