The NFL has hired former SEC chair Mary Jo White to investigate Brian Flores’ allegation that Miami Dolphins owner Stephen Ross offered to pay him $100,000 for each loss during the 2019 season. The purported bribe was part of an alleged plot to secure a higher draft pick.
The 74-year-old White, a former federal prosecutor, is familiar with the NFL and how its teams operate. White is separately investigating Washington Commanders owner Daniel Snyder for allegations that he engaged in sexually inappropriate conduct with women employed by the team. Four years ago, White investigated then-Carolina Panthers owner Jerry Richardson over accusations of sexual harassment, inappropriate physical contact and racially insensitive language. She confirmed the veracity of those allegations.
Flores, who says he turned down the supposed offer, raised explosive bribery allegation in his civil rights lawsuit. Flores contends the NFL, the Dolphins, the New York Giants and the Denver Broncos broke the law in the hiring, employment and firing of black coaches.
Ross has categorically denied Flores’ charge, dismissing it as “false, malicious and defamatory.”
The accusation is nonetheless problematic for Ross.
An owner bribing a coach to lose would potentially constitute a crime under the Sports Bribery Act of 1964. Any person who, through their interstate activities, “influences, in any way, by bribery any sporting contest” can be convicted and face up to a five-year prison term. Although the Act has never been used in the context of the NFL, NBA, MLB or NHL, and although it’s unlikely that White confirming Flores’ account would spark a criminal investigation into Ross, an 81-year-old billionaire, the mere prospect of criminal implications is troubling for a pro league.
Ross could also become more vulnerable to ouster as Dolphins owner if White concludes he tried to “fix” the draft order. NFL teams have long been suspected of varying methods of “tanking”—such as resting star players—but owner bribery would elevate tanking to a new and disturbing level. Owner bribes would explicitly undermine the integrity of the game and possibly amount to consumer fraud. They would also subvert league partnerships with betting and daily fantasy sports companies whose business models rely on games being played competitively.
Under the NFL constitution, three-fourths of the 31 other ownership groups can vote out an owner, which would lead to a franchise sale. However, the NFL has never forced out a majority owner in the league’s 102-year history. Richardson was reportedly urged to sell the Panthers, but the decision was his own. Even if Ross isn’t forced to sell the Dolphins, he could be suspended and his team stripped of draft picks. The constitution refers to a lifetime ban for owners who attempt to “control, fix or bet money” on the “outcome or score” of a game.
Owners are also required to cooperate with league investigations. Ross and the Dolphins will be expected to share emails, phone records, memos and other materials with White and her team. Ross and team officials would also be required to answer questions, in person or in writing, from White’s team.
In addition to her NFL investigations, White, a partner at Debevoise and Plimpton in New York City, possesses deep expertise in probing workplace controversies—including those that implicate criminal law. A former U.S. Attorney for the Southern District of New York, White has decades of experience in uncovering white collar crimes by high-ranking business people.
Her investigation of Flores’ claims, however, will be limited in a few ways.
First, while White is functioning as a workplace investigator, she is also an attorney retained by one of the Dolphins’ co-defendants, the NFL. The legal interests of the Dolphins and the league are aligned. Both wish to defeat Flores. But from a public relations standpoint, the Dolphins might have reason to worry. Will the league, which has pledged to aggressively address race concerns, ultimately look to assign blame for Flores’ criticisms about owner-coach interactions? If so, the Dolphins might become more reticent with White.
Second, the NFL might not allow emails, witness statements and other materials gathered by White to be shared with the public or Flores. The NFL could designate them as falling under attorney-client privilege or work-product doctrine (which exempts materials obtained by attorneys in investigations in anticipation of trial). The NFL might shield all or portions of the investigation.
Third, White has no subpoena powers and can’t compel witnesses to speak under oath. The investigatory record she produces could prove incomplete and, in certain areas, not as reliable or authoritative as she wishes.
But make no mistake: The NFL hiring White is a serious development. Even if she doesn’t confirm that Ross offered a bribe, she could find other types of problematic behavior that validate the spirit of Flores’ case.