The NFL is planning to investigation claims that Miami Dolphins owner Stephen Ross offered to pay the team’s head coach $100,000 for each loss the team suffered in the 2019 season.
It’s just one part of the wide-ranging fallout from the civil rights lawsuit filed earlier this week by former Dolphins coach Brian Flores. The suit is focused on alleged discrimination, but contains a number of tangential allegations that could prove problematic for the league beyond its hiring practices. Among them is Flores’ claim that Ross offered money for each loss in 2019, and that Ross pressured the coach to violate league tampering rules.
The NFL, which has publicly denied the discrimination, will investigate the claims against Ross, according to multiple media reports. Ross denied the claims, calling them “false, malicious and defamatory.”
Flores’ payment-for-tanking claim received some high-profile public backing. Former Cleveland Browns head coach Hue Jackson said on Twitter earlier this week that Cleveland owner Jimmy Haslam was “happy while we kept losing” and hinted he was paid “a good number” in connection to those losses. Jackson later clarified his remarks on ESPN, saying he was not explicitly offered money. A spokesperson for the Browns tells Sportico the allegations are “completely fabricated,” and that no member of their organization was “incentivized to deliberately lose games.”
With the NFL is now fighting on multiple fronts connected to the Flores lawsuit, there’s a chance the two threads could reconnect later if the league’s Dolphins investigation uncovers evidence that advances Flores’ discrimination claims. But don’t expect the NFL to willingly turn it over.
The league can try to block access to the evidence through the attorney-client privilege and work product doctrine.
So long as attorneys are involved in the investigation—a near certainty—the league can designate as confidential the materials uncovered. The investigation is occurring not only in the context of Flores’ lawsuit, but amid other legal fallout that could arise.
Flores said he rejected the alleged $100,000 offer. The team finished his first season 5-11, landing the fifth overall pick in the 2020 draft, which the Dolphins used to take Tua Tagovailoa, who’s now the team’s starting quarterback. The lawsuit also charges that in 2019, Ross urged Flores to tamper by recruiting “a prominent quarterback” who was under contract with another team—speculated to be Tom Brady, whom Flores knew from their time together on the Patriots. Ross, as Flores tells it, had arranged a meeting for the two on his yacht. Flores rejected that alleged overture as well.
Flores mentions the $100,000 offer and the tampering in the context of his firing this offseason. It wasn’t that he was coaching poorly, Flores claims, but rather that he was coaching too well, and adhering to league rules. He mentions feeling “ostracized” after those incidents, which he believes directly affected his future with the team.
Ross, the billionaire founder and chair of the Related Companies, categorically denies Flores’ allegations.
“I am a man of honor and integrity,” Ross states, “and cannot let [the allegations] stand without responding. I take great personal exception to these malicious attacks, and the truth must be known. His allegations are false, malicious and defamatory. We understand there are media reports stating that the NFL intends to investigate his claims, and we will cooperate fully. I welcome that investigation and I am eager to defend my personal integrity, and the integrity and values of the entire Miami Dolphins organization, from these baseless, unfair and disparaging claims.”
Tampering is explicitly prohibited by the league constitution. Tanking is not as spelled out, though the constitution empowers the commissioner to strip draft picks and impose fines “in cases involving a violation affecting the competitive aspects of the game.” The commissioner is also empowered to seek additional remedies, including a recommendation to the executive committee that an owner’s interest in a team be canceled. Removal of an owner would require a vote of at least three-quarters, or 24, of the league’s principal owners. An owner who is removed could sue the league under antitrust and other areas of law.
If Flores’ allegations against Ross are supported by corroborating emails, witness statements or other evidence, the potential legal consequences are far-reaching.
Fans who bought tickets to Dolphins games believing the team was not trying to win could sue under consumer protection laws. Gamblers might also sue, though such lawsuits would likely be dismissed given that teams do not owe duties to third parties (bettors are not in contract with NFL teams).
It’s even plausible, if highly unlikely, that law enforcement could become interested. Plots to throw games could give rise to conspiracy to engage in racketeering and sports bribery charges—as Boston College basketball players learned in their 1978-79 point shaving scheme with the mafia. To be clear, egregious instances of tanking in other leagues, most notably involving NBA teams, have not sparked any criminal consequences.
The NFL could plausibly argue the materials uncovered in the investigation are developed in coordination with attorneys and guided by their advice. The work product doctrine is also potentially relevant. Materials prepared by an attorney or for any attorney in anticipation of litigation or trial are generally exempt from pretrial discovery.
The NFL relied on claims of privilege to deny Brady access to investigative materials in the Deflategate investigation. That move was later cited by U.S. District Judge Richard Berman as one reason to vacate Goodell’s suspension. The NFL successfully appealed to the U.S. Court of Appeals for the Second Circuit and had Brady’s suspension restored. The league has also declined to share materials uncovered in the Washington Football Team workplace probe, a position former Oakland Raiders coach Jon Gruden has challenged in his lawsuit.
To be clear, these privileges are not absolute and can be challenged on different grounds. Attorneys for Flores can credibly argue that an internal investigation should not shield evidence relevant to his lawsuit. The more the investigation is geared towards fact-finding and business considerations rather than legal advice, the stronger an argument for Flores that privileges should not apply. These privileges can also be waived if a report is shared with a public relations firm or if some materials are shared in public disclosures.
As for Ross, his statement describing Flores’ allegations as “defamatory” is notable since it suggests that Ross might consider suing Flores for defamation. If Ross did so he would face an immediate hurdle, in that there is a “litigation privilege” under defamation law. Essentially, claims made in the course of litigation are exempt from defamation claims.
However, Flores has gone on television to reiterate those claims, which might give Ross an argument they fall outside the scope of the legal proceeding. But if Ross sues Flores, it would be easier for Flores to compel Ross to testify under oath.