I said in an earlier post that it could be easier to point out the unfair disparities in a system by looking at broader trends, and your post above shows why. That is pretty compelling stuff.
But it makes the case that there is a systemic problem. It doesn’t show that in any SPECIFIC instance race is the - or even A - reason why a particular candidate got fired or didn’t get hired. And Flores is claiming that HE is the victim here. So wouldn’t he need to show that HE didn’t get the NYG job because he is black? That seems like a much much harder thing to demonstrate.
Edit: Flores is an interesting individual case.
https://en.m.wikipedia.org/wiki/Brian_Flores
Got his first pro job at age 23 with NE. Moved up the organizational ladder. Moved up to linebackers coach and then, when Patricia left for Detroit, became the defensive play caller, but not the defensive coordinator.
Right after the Pats’ 13-3 win in the SB, he gets hired by the Dolphins as Head Coach.
So he got a HC gig on his very first try, without even being a coordinator first. He basically skipped that step in the process and probably leapfrogged several other qualified candidates who at least had experience as a coordinator. In fact, he got the job over Dowell Loggains, who is white. Loggains served as offensive coordinator for the Bears for a couple of seasons before interviewing for the HC job with Miami.
Now I think, personally, that Flores was a good bite by Miami and I think he did a good job there. Especially if the story is true that he was pressured to lose. But the point is, he got a HC job over a white candidate that had experience as a coordinator - something Flores didn’t have on his resumé. Not that having that experience is always necessary of course but if we are just looking at the “most qualified” candidates, I’m not positive that Flores fit that. I’m not sure he didn’t fit it but I’m not sure he did.
The point being that I don’t see a pattern in Flores’ career where he’s been held back by virtue of being black. And he’s claiming to be an aggrieved party on the basis of race here. Seems hard to *prove*.
The way he has pleaded his case, I don't think it turns on one particular event. Like, his claim is not "I wasn't hired by the Giants due to racial discrimination."
243. As described above, Defendants have discriminated against Plaintiff and the Proposed Class on the basis of race and/or color in violation of Section 1981 by (i) discriminatorily denying Proposed Class members positions as Head Coaches, Offensive and Defensive Coordinators and Quarterbacks Coaches, as well as General Managers, (ii) discriminatorily subjecting them to sham and illegitimate interviews, (iii) subjecting Proposed Class members to discriminatory retention practices and/or termination decisions, (iv) subjecting Proposed Class members to disparate terms and conditions of employment, including but not limited to, lack of opportunity and harm to professional reputation and (v) subjecting Proposed Class members to unequal compensation relative to their white peers.
244. Defendants have fostered, condoned, accepted, ratified and/or otherwise failed to prevent or remedy discriminatory conduct due to race and/or color. Each Defendant has actually participated in and aided and abetted the discriminatory conduct of the other Defendants.
245. As a direct and proximate result of Defendants’ unlawful discriminatory conduct in violation of Section 1981, Plaintiff and the Proposed Class have suffered, and continue to suffer, economic damages, loss of opportunity, loss of reputation and mental anguish for which they are entitled to an award of damages.
246. Defendants’ unlawful discriminatory actions constitute reckless, malicious, willful and wanton violations of Section 1981 for which Plaintiff and the Proposed Class are entitled to an award of punitive damages.
As has already been pointed out here, the Class Action is not likely to happen because there is no systematized way to award damages. But he's alleging more than "did not get one job" or"was fired from one job."
And his standard of proof is "more likely than not."
I think the Miami fact pattern alone seems pretty damning: 1. Hired coach, 2. Pressured him to throw games, which he declined to do, and to tamper, which he also declined to do. 3. Fired him after 2 straight
winning seasons (something that just doesn't happen with white coaches). 4. Claimed he was fired because he was an insubordinate asshole. The concept of a coach deliberately throwing games is very much anathema to much of the sports media, the fan base, and to propsective jurors. Maybe less so in the era of "The Process," but I doubt they are going to find a jury who will think - this guy got fired for insubordinately refusing to throw games and break league rules." Give the demonstrated lack of opportunities for Black coaches, asking one to throw games is basically asking him to light his career on fire during his first season and with a shitty team. Is it really unthinkable that after hearing the whole case, a jury would not think "more likely than not they wouldn't have done that to a white guy?"
The "didn't have the coordinator title" in NE could be spun as another act of discrimination (gave him a de facto promotion to a more senior position without the title, salary, and recognition that comes with the actual job). On many other teams I think those facts along would be a slam dunk. Probably not with the Patriots, though, because my sense is that they have a well-established pattern and practice of giving young coaches the coordinator responsibility before the title.
Assuming that is correct, I think it is an illustrative example of the NFL's problem here. Let's say Flores made that claim against the Pats (not giving him DC title was discriminatory). They can say, "
Well, in 2005, we did give a young up and comer (Mangini) the DC title, but we didn't do it with the OC title (McDaniels was QB coach) until the next year. Then , in 2009, when McDaniels left, we again didn't give OC to your young up and comer (O'Brien). Even in 2010 we didn't give O'Brien OC title, not did we give our up and coming defensive coach (Patricia) the DC title. O'Brien and Patricia both had the respnsibilities for 2 years before they got the title. Then in 2018 we did this with Brian Flores, just as we had done it with McDaniels, O'Brien, and Patricia. This wasn't racial discrimination, it is just what we do. Had Flores not gone to Miami, he would have gotten the title in 2019 or 2020. As things stand, we still haven't had an official DC since Patricia left." Probably convincing to a jury.
But I think Miami, and the league as a whole, would find it difficult to make that kind of case to defend itself against Flores' allegations. "
Asking young coaches to throw games and break league rules, and the firing them after 2 winning seasons, is just what we do on this team/in this league" isn't going to fly. Especially if Flores' lawyers unearth pay disparities.
Of course, the NFL is going to want to settle this before it comes to discovery. How badly does Flores himself want to settle vs get discovery?
Edit: The Miami tanking thing seems really damning. Black coaches get less time (a whole season less) than white ones to prove themselves and fewer second chances. In Flores' first year, he's pressured to lose games intentionally - which means he's being pressured to take on what could be a fatal black mark on his career - either because his losing record puts teams off of hiring him or because word gets out that he tanked. In his second and third years he actually does put together a winning record and the team responds by firing him. I think a jury could be persuaded that this was racial discrimination.
Edit: One of Flores' bigger obstacles may be this (unanimous) SCOTUS opinion from March 2020 which found that to win on this kind of pleading, Flores must establish race as a "but for" cause of his injury. IOW, what happened to him would not have happened to a similarly situated white guy.
https://www.supremecourt.gov/opinions/19pdf/18-1171_4425.pdf
