Brian Flores suing NFL, Giants over "sham" Rooney rule - "mistakenly" (?) sent Belichick text may be linchpin

BroodsSexton

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Good post, @BroodsSexton. I'll just say that imagine you're a police officer. Your police department has a real history of stopping black drivers at a massively disproportionate rate than white drivers. Ergo, there's a real systemically racist issue with your department. But you're a good cop, trying to be fair and just. You stop two people in a given day. The first one is a white driver, and the second is a black driver.

The black driver then sues, claiming that you stopped him because he's black, and he has all the years of data in your department to support his claim. But that's not why you stopped him at ALL. You stopped him because you happened to see he was speeding. And in fact, you stopped a white guy earlier in the day because....he was speeding too.

So suddenly you're branded a racist and people in town are coming at you for your racist enforcement of the law. That wasn't your intent, nor is that what you did. The overall police department's statistics are being used against you.

Is that fair to you? Is that how the police department's statistic should be used? To demonstrate that YOUR specific actions were racist?

I don't think I'm wrong when I say that it's sometimes easier to demonstrate systemic racism than to demonstrate any specific action is racist.

As far as the actual law goes, I'll totally defer to you, because I have no clue about that.
Well, setting aside the fact that the context is totally different (criminal law vs. employment practices), I'd probably sue the city for its practices of targeting minorities for speeding violations, rather than the individual cop for a particular stop. Something like the "stop and frisk" litigation that resulted in invalidating that NYPD program, regardless of whether one particular police officer on a given day with a particular target was justified in applying the policy. Because I'd be trying to affect institutional change.

I haven't thought through the possible objections to whether Flores is the right plaintiff to bring the type of lawsuit he's bringing, where he's seeking to affect institutional practices. I guess one question I have is what remedy can he reasonably seek here? Because he's not really attempting to stop a particular policy; he's attempting to change the affirmative practices, generally, and get more minority coaches hired. This isn't really the core of my practice, so I'm not aware of the precedents for this kind of litigation. I'd be interested to hear from others who can speak to this issue.

Let's assume he proves he was affected by a system that has a disparate impact, and a jury agrees it affected his termination (EDIT: or lack of hiring). What then? Just money?
 
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BaseballJones

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Well, setting aside the fact that the context is totally different (criminal law vs. employment practices), I'd probably sue the city for its practices, rather than the individual cop. Something like the "stop and frisk" litigation that resulted in invalidating that NYPD program, regardless of whether one particular police officer on a given day with a particular target was justified in applying the policy. Because I'd be trying to affect institutional change.

I haven't thought through the possible objections to whether Flores is the right plaintiff to bring the type of lawsuit he's bringing, where he's seeking to affect institutional practices. I guess one question I have is what remedy can he reasonably seek here? Because he's not really attempting to stop a particular policy; he's attempting to change the affirmative practices, generally, and get more minority coaches hired. This isn't really the core of my practice, so I'm not aware of the precedents for this kind of litigation. I'd be interested to hear from others who can speak to this issue.

Let's assume he proves he was affected by a system that has a disparate impact, and a jury agrees it affected his termination. What then? Just money?
Yeah, no idea. I mean even your assumption there at the end is iffy. It's one thing to prove that the system is flawed. It's another thing to prove that the flawed system contributed to his firing by Miami or to the Giants hiring Daboll over him. (I don't think the suit is about his firing, but rather about his not getting hired)

Again, Flores was JUST hired as head coach, after having had no experience as a coordinator.

As a less serious analogy, imagine a wife telling a husband that men tend to not do the dishes very often, that it's a pattern in most households that women do the dishes while men don't. That it proves that the dish washing system is sexist in nature. Ok, that may be true. But to say that the reason that that particular husband didn't do the dishes on that particular night is because of sexism seems....like a real stretch, right? Especially if the night before, he in fact did the dishes.

If the system is so rigged against Flores, how did he get the job in Miami just three years ago, without having had any coordinator experience? What are the possible reasons for his hiring? (he got hired over a white guy who had two stints as NFL offensive coordinator)

As far as a solution goes, does he just get paid money? I mean I don't know if he'd turn it down. But I think you're right - he's not really looking at scoring a PERSONAL victory here. He's after the SYSTEM. How does money fix that?
 

Shelterdog

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What point are you trying to illuminate here? The *stated* purpose of the Rooney Rule from the time it was introduced was to create opportunities for coaches of color by forcing owners to consider people who are not white. That’s not some kind of conjecture. That’s not some grand conclusion that brilliant minds finally arrived at following years of exhaustive study of the issue. That was quite literally the intent of the rule when it was enacted. Rooney recognized the disgraceful unwillingness of owners to hire black coaches, so he pressed for a rule that would mandate that non-white coaches had to be given interviews. His hope was that being exposed to a more diverse slate of candidates would help diversify the head coaching ranks. It hasn’t worked.
The stated purpose might not be the intent. Maybe some owners (like Rooney perhaps) were pure of heart bur I suspect that a big part of the intent was driven by PR, or an effort to insulate the league and owners from potential liability
 

Ralphwiggum

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If the system is so rigged against Flores, how did he get the job in Miami just three years ago, without having had any coordinator experience? What are the possible reasons for his hiring? (he got hired over a white guy who had two stints as NFL offensive coordinator)
Well, if the allegation that Ross offered him money to lose football games is true you might look at the decision to hire a black coach in that instance differently.
 

BroodsSexton

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As far as a solution goes, does he just get paid money? I mean I don't know if he'd turn it down. But I think you're right - he's not really looking at scoring a PERSONAL victory here. He's after the SYSTEM. How does money fix that?
"Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."
-Louis Brandeis, "What Publicity Can Do."

And courts can be pretty creative with injunctive relief. Let's see where the evidence goes.
 

BaseballJones

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Well, if the allegation that Ross offered him money to lose football games is true you might look at the decision to hire a black coach in that instance differently.
Sure. So is the argument then (should that be true) that he hired a black coach with the intent to lose, but that he wouldn't have hired a white coach to lose? Or did he think that Flores was the best guy to ultimately create a winning team, and losing FOR NOW was the best way to move the team into a winning situation? (which happens all the time in sports when teams tank, or when bad teams trade good players for draft picks at the deadline, etc.)

To argue the former, one has to say that Ross is SO racist that he orchestrated things just to set a black man up to fail (and presumably, make other black coaches look bad in the process). Which would be quite an accusation. Not saying it's not possible (and I'm not saying you're making this argument), but that's a heck of an accusation.
 

Ralphwiggum

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Sure. So is the argument then (should that be true) that he hired a black coach with the intent to lose, but that he wouldn't have hired a white coach to lose? Or did he think that Flores was the best guy to ultimately create a winning team, and losing FOR NOW was the best way to move the team into a winning situation? (which happens all the time in sports when teams tank, or when bad teams trade good players for draft picks at the deadline, etc.)

To argue the former, one has to say that Ross is SO racist that he orchestrated things just to set a black man up to fail (and presumably, make other black coaches look bad in the process). Which would be quite an accusation. Not saying it's not possible (and I'm not saying you're making this argument), but that's a heck of an accusation.
One argument might be that he didn't care about Flores' skin color because (a) he wanted the team to lose under Flores to get a better draft pick and (b) he planed on firing Flores and replacing him with another coach by the time the team was ready to win. Maybe if he didn't really care who he was hiring in that case he chose Flores because it weakened the Pats by having them lose their DC. Who knows?

But it doesn't really matter why the Dolphins hired Flores, if you are suing an employer because they treated you differently than they treat white employees, I don't think the employer can avoid liability by saying "if we were racist we never would have hired a black guy in the first place."
 

BaseballJones

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One argument might be that he didn't care about Flores' skin color because (a) he wanted the team to lose under Flores to get a better draft pick and (b) he planed on firing Flores and replacing him with another coach by the time the team was ready to win. Maybe if he didn't really care who he was hiring in that case he chose Flores because it weakened the Pats by having them lose their DC. Who knows?

But it doesn't really matter why the Dolphins hired Flores, if you are suing an employer because they treated you differently than they treat white employees, I don't think the employer can avoid liability by saying "if we were racist we never would have hired a black guy in the first place."
Yeah I get that and you might be totally right. Again, I don't know the law. But it's a bit of a hard one for me. I mean, take an interracial marriage. If you're white and you divorce your black spouse, can you reasonably be accused of doing it because she's black - and thus a racist - if you married her in the first place? Why would you be racist in the divorce but not in the marriage? That really makes little sense to me. But again, as I said in an earlier post, I can tend to be a bit naive in these things.
 

BroodsSexton

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Yeah I get that and you might be totally right. Again, I don't know the law. But it's a bit of a hard one for me. I mean, take an interracial marriage. If you're white and you divorce your black spouse, can you reasonably be accused of doing it because she's black - and thus a racist - if you married her in the first place? Why would you be racist in the divorce but not in the marriage? That really makes little sense to me. But again, as I said in an earlier post, I can tend to be a bit naive in these things.
Dude, I'm assuming you're coming at this in good faith, but using this as an analogy is pretty out there and should make you rethink how you're engaging this conversation. It's like you say "yes, yes, yes" to all the points that are being made along the way, but then you retreat back to your most reductionist instinct and say "that can't be wrong, can it?"

But it doesn't really matter why the Dolphins hired Flores, if you are suing an employer because they treated you differently than they treat white employees, I don't think the employer can avoid liability by saying "if we were racist we never would have hired a black guy in the first place."
That would be a neat trick. There's probably 5 votes for that on the Supreme Court.
 

BaseballJones

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Dude, I'm assuming you're coming at this in good faith, but using this as an analogy is pretty out there and should make you rethink how you're engaging this conversation. It's like you say "yes, yes, yes" to all the points that are being made along the way, but then you retreat back to your most reductionist instinct and say "that can't be wrong, can it?"
It's totally in good faith. I see the systemic issues. I struggle with how we can attribute racist motives in certain instances though. And yeah, I think it's hard to say that the reason a guy got fired from a job is because he's black, when he got hired in the first place by the same people. Was he not black then? If Miami didn't want a black coach, why would they have hired him over a potentially more qualified white guy (who had coordinator experience with two different teams)? That makes no sense to me.

Like I said...maybe I'm totally naive here but I have a hard time connecting the two. If you don't like the silly marriage example, disregard it. I'm just trying to work this all out in my head. Well, actually, via keyboard and SOSH conversation. This is me being a "verbal" processor.

If that leads people to conclude that I'm not coming at this in good faith, then I'll stop and let you guys figure out what's going on here and I'll just listen.
 

BroodsSexton

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It's totally in good faith. I see the systemic issues. I struggle with how we can attribute racist motives in certain instances though. And yeah, I think it's hard to say that the reason a guy got fired from a job is because he's black, when he got hired in the first place by the same people. Was he not black then? If Miami didn't want a black coach, why would they have hired him over a potentially more qualified white guy (who had coordinator experience with two different teams)? That makes no sense to me.

Like I said...maybe I'm totally naive here but I have a hard time connecting the two. If you don't like the silly marriage example, disregard it. I'm just trying to work this all out in my head. Well, actually, via keyboard and SOSH conversation. This is me being a "verbal" processor.

If that leads people to conclude that I'm not coming at this in good faith, then I'll stop and let you guys figure out what's going on here and I'll just listen.
So, it has already been pointed out to you that “motive” is not the end point of the inquiry, which you’ve acknowledged by nodding along to “systemic racism.” When you then reduce the conversation to specific intent, you are missing the point. And if you continue to do that after it has been explained (several times) to you, you are going to cause frustration. You can’t work it out because you’re not being consistent.
 

BigJimEd

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Yeah I get that and you might be totally right. Again, I don't know the law.
I don't even know what to say about that "analogy."
You don't know the law and will leave that to @BroodsSexton and others. So what exactly is the point you are trying to make?

If your point is, as you mentioned previously that:
I don't think I'm wrong when I say that it's sometimes easier to demonstrate systemic racism than to demonstrate any specific action is racist.
I think everyone agrees with that. Is anyone saying you are wrong or arguing differently?

Is it simply that the Dolphins actions might not have been entirely driven by race? That's possible. We can never know for sure one or the other but we have plenty of evidence that they are part of a system that treats Black candidates unfairly.
 

Ralphwiggum

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It's totally in good faith. I see the systemic issues. I struggle with how we can attribute racist motives in certain instances though. And yeah, I think it's hard to say that the reason a guy got fired from a job is because he's black, when he got hired in the first place by the same people. Was he not black then? If Miami didn't want a black coach, why would they have hired him over a potentially more qualified white guy (who had coordinator experience with two different teams)? That makes no sense to me.

Like I said...maybe I'm totally naive here but I have a hard time connecting the two. If you don't like the silly marriage example, disregard it. I'm just trying to work this all out in my head. Well, actually, via keyboard and SOSH conversation. This is me being a "verbal" processor.

If that leads people to conclude that I'm not coming at this in good faith, then I'll stop and let you guys figure out what's going on here and I'll just listen.
You keep saying you see the systemic issues, but you clearly don't understand how they work. Stephen Ross didn't have to be thinking about Brian Flores' skin color when he was firing him in order for Flores' lawsuit to have merit.
 

BringBackMo

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Three years ago they hired Flores, a guy with no experience as an offensive or defensive coordinator. Flores is black/Hispanic (biracial). Three years later they fired him. Did they fire him *because he was black*? That would make little sense, since they HIRED him in the first place.
The Dolphins episode is plenty troubling, but it is not, to me at any rate, the heart of Flores’ suit. After all, he didn’t file it after being fired. He filed the suit after learning that the Giants had already settled on hiring someone else prior to even interviewing him. In fact, BB’s text appears to have been sent before either of them had been interviewed in person.
So suddenly you're branded a racist and people in town are coming at you for your racist enforcement of the law. That wasn't your intent, nor is that what you did. The overall police department's statistics are being used against you.

Is that fair to you? Is that how the police department's statistic should be used? To demonstrate that YOUR specific actions were racist?
It is beginning to feel to me that your primary motivation in these discussions is to make sure that the individuals who are part of the systems that racially profile or exclude are not accused of racial profiling or exclusion. In any case, the proper analog for NFL owners making hiring decisions is absolutely not an individual police officer deciding who does and does not get a ticket. It is the police chief or mayor who sets department policy and influences department culture. A person acting honorably within a corrupt system is still part of a corrupt system. Do you truly not get that?
I mean, take an interracial marriage. If you're white and you divorce your black spouse, can you reasonably be accused of doing it because she's black - and thus a racist - if you married her in the first place? Why would you be racist in the divorce but not in the marriage? That really makes little sense to me. But again, as I said in an earlier post, I can tend to be a bit naive in these things.
I don’t know what to make of this entire analogy. I don’t believe that you believe that you are naive. I’m not going to participate further in this exchange, so if you would like the final word you can have it.
 

BringBackMo

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Just injecting a bit of law here and addressing your bolded comments: in the context of Title VII, disparate impact on a particular group may be considered evidence of intent or motive. In other words (for the statistically-minded among this fabled Red Sox baseball board), the statistical evidence of hiring, firing, promotion, retention, interviewing, etc. may be evidence of intent as it applies to Flores, specifically, and the NFL's practices more broadly. Most recently, this was explored by the Supreme Court when reviewing the Trump administration's attempt to eliminate DACA. Link. Is it the equivalent of a smoking gun email? No. (Those are in the Gruden lawsuit...) But it's evidence, to be given weight. One interesting issue to be worked out is how the NFL's statistics, writ large, apply to the Miami situation. A question I raised earlier in the thread (which I don't know the answer to) is how is the league responsible here, as opposed to the individual team? And if it's just the team, shouldn't we be focused on Miami's employment practices and statistics (which are not specifically pleaded I don't believe)?

I think the disjunct that the two of you are having is that @BaseballJones, you are acknowledging the conclusion (that there is a racism problem), and you are acknowledging the former (i.e., the statistics), but you are discounting the value of the former as evidence of the latter, and suggesting Flores should lose if he doesn't have the direct receipts of a smoking gun email or the equivalent. Now, reasonable minds can disagree on how much weight to place on the statistics and evidence of disparate impact. (The current Supreme Court would probably like to eliminate the principle entirely...) But it's going to create frustration from @BringBackMo if you say "I acknowledge a structural problem with racism in the league. And I acknowledge that prima facie, these statistics indicate a problem with racism in the league. But, I can't reasonably conclude based on this evidence that racism affected Flores in this instance." Because in an individual instance, it is very often difficult to prove specific intent. If you have that specific intent, you know well-enough to paper around it.

This is why the disparate impact standard evolved. Because seemingly neutral criteria were nonetheless creating "headwinds" for racially equal hiring practices. In Griggs v. Duke Power (a decision worth reading in its entirety), the Court invalidated a procedure that required testing and/or a high school diploma as a condition of departmental transfer when the testing was not a reasonable measure of job performance, and when the result is that African Americans were suffering from disparate impact, i.e., it kept African Americans from transferring.

In language that surely resonates for Flores:


The Court continued, in language that speaks almost directly to some of the objections lodged in this thread:

Moreover, Duke Power had it's own Rooney Rule, which was acknowledged within the overall evidence of the discriminatory practices:



Now, Griggs was adopted by a much more liberal Supreme Court in 1971--but it's still good law, and provides the framework for disparate impact litigation like this. The argument will be about whether Flores was impacted by discriminatory employment practices--most acutely termination, but could be other employment action as well--but the overall context sure raises eyes for me. Hired to tank, thereby assuring he'd get a reputation as an unsuccessful coach. Tagged as "uncooperative" when he wouldn't accept unlawful payments. Terminated despite winning seasons. And defamed on the way out the door. All in the context of myriad admissions by the league that it has a problem, statistical evidence that looks pretty bad, and an ineffective "Rooney Rule" that hasn't done anything to reduce the headwinds that minority coaches face.

I'd sure wait around and listen to the evidence with an open mind.
This is an amazing post. I learned a lot from it.
 

Eddie Jurak

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This is why the disparate impact standard evolved. Because seemingly neutral criteria were nonetheless creating "headwinds" for racially equal hiring practices. In Griggs v. Duke Power (a decision worth reading in its entirety), the Court invalidated a procedure that required testing and/or a high school diploma as a condition of departmental transfer when the testing was not a reasonable measure of job performance, and when the result is that African Americans were suffering from disparate impact, i.e., it kept African Americans from transferring.
How much of a prolblem for Flores is this decision: COMCAST CORP. v. NATIONAL ASSOCIATION OF AFRICAN AMERICAN-OWNED MEDIA
As far as a solution goes, does he just get paid money? I mean I don't know if he'd turn it down. But I think you're right - he's not really looking at scoring a PERSONAL victory here. He's after the SYSTEM. How does money fix that?
This is what he asks for in the complaint.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that the Court enters judgment in his favor and against the Defendants for the following relief:
A. A declaratory judgment that the actions, conduct and practices of the Defendants complained of herein violate the laws of the United States and the State and City of New York, and the State of New Jersey;
B. An award of injunctive relief necessary to cure Defendants’ discriminatory policies and practices;
C. Certification of this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure;
D. An award of damages to Plaintiff and the Proposed Class and against the Defendants, in an amount to be determined at trial, to compensate them for all monetary and/or economic damages;
E. An award of damages to Plaintiff and the Proposed Class and against the Defendants, in an amount to be determined at trial, to compensate them for all non-monetary and/or compensatory damages, including, but not limited to, loss of reputation, loss of opportunity and mental anguish;
F. An award of punitive damages to Plaintiff and the Proposed Class and against the Defendants in an amount to be determined at trial;
G. Pre- and post-judgment interest on all amounts due.
H. An award of Plaintiff and the Proposed Class’s reasonable attorneys’ fees and
costs; and
I. Such other and further relief as the Court may deem just and proper.
So he wants:
  • The Court to delcare the actions, conduct and practices of the Defendants illegal.
  • Injunction against the league to cure its discriminatory policies and practices
  • Certification as a Class (not happening, but I think it was only part of the complaint for strategic reasons)
  • Compensatory and punitive damages, with interest
  • Attorney's fees and costs
So, mostly money, but also the declaratory judgment against the league and perhaps some sort of injunctive relief.
 

reggiecleveland

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Feel free to delete if too far off topic. But, as a coach, I have seen this type of thing (affirmative action if you will) work. First Nations (USA still uses the term American Indian in some cases) kids are underrepresented on high school teams and especially college teams. My buddy and I decided, decades ago actually, if a FN kid tried out we would give him 2 more days after we decided to cut him. And we would go beyond our roster limit (say 12) if a FN kid was close to making the team. It was our way of trying to 1. Overcome our own unconscious bias. 2. Giving a chance to a group of kids who usually got fewer chances. I am sure you can anticipate the outcome, we have had some good players develop, guys that surprised us.

Also in hoops. My son and I went through the NBA coaches, and I put this in the Celtics coaching thread. But, there are far more white kids that can take the 'coaching is my passion" route to the top. There are NBa coaches, I am pretty sure I was a better player, and one that never even played, those guys are all white. The black coaches are all at least Div 1 starters as players.
 

BroodsSexton

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@Eddie Jurak

Comcast is a decision under Section 1981, barring racial discrimination in the enforceability of contracts, i.e., “[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, [and] give evidence . . . as is enjoyed by white citizens.” (Incidentally, not for nothing, but it's fascinating to me -- in the current context -- that whiteness is written into the statutory scheme. Good luck.)

The source of the right here (Section 1981) is different than the right to be free of employment discrimination (Title VII), and a different standard applies, as indicated in Comcast:
The guarantee that each person is entitled to the “same right . . . as is enjoyed by white citizens” directs our attention to the counterfactual—what would have happened if the plaintiff had been white? This focus fits naturally with the ordinary rule that a plaintiff must prove but-for causation. If the defendant would have responded the same way to the plaintiff even if he had been white, an ordinary speaker of English would say that the plaintiff received the “same” legally protected right as a white person. Conversely, if the defendant would have responded differently but for the plaintiff ’s race, it follows that the plaintiff has not received the same right as a white person.
This is a lot more similar to the standard that BaseballJones has been attempting to import into the employment discrimination context. It is the traditional "but for" standard, i.e., the plaintiff must show that but for his race, he would have entered into the contract. Note that the Court in Comcast acknowledged the distinction:

In the Civil Rights Act of 1991, Congress provided that a Title VII plaintiff who shows that discrimination was even a motivating factor in the defendant’s challenged employment decision is entitled to declaratory and injunctive relief. A defendant may still invoke lack of but-for causation as an affirmative defense, but only to stave off damages and reinstatement, not liability in general.
I don't know if, long term, the core of Flores's complaint is really a 1981 claim, i.e., that but for his race, he would have been hired as the Giants Head Coach. This is a lot closer to the standard that BaseballJones has been hypothesizing around--but it's not the same as a Title VII claim (at least not yet...give it time, with this Court). Long term, Flores's claim is probably the employment discrimination claim, which he hasn't yet pleaded, but which he says he is going to amend to include--once he gets the EEOC right to sue letter. They probably pushed this thing quickly to make a timely filing, and are going to backfill with an amended complaint to include the Title VII claim. The Section 1981 claim is a placeholder, to assure federal jurisdiction for the time being, because it's his only federal claim. That's my best guess.

And I'm spitballing all this--there are undoubtedly civil rights and employment lawyers around here that can speak more authoritatively.

I wonder if they also considered an antitrust claim of some sort. Probably not, because Wigdor is an employment firm (and it's probably a bit of a stretch). But the leagues always seem to get a little defensive when their antitrust exemptions are questioned...
 
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mauf

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@Eddie Jurak

Comcast is a decision under Section 1981, barring racial discrimination in the enforceability of contracts, i.e., “[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, [and] give evidence . . . as is enjoyed by white citizens.” (Incidentally, not for nothing, but it's fascinating to me -- in the current context -- that whiteness is written into the statutory scheme. Good luck.)

The source of the right here (Section 1981) is different than the right to be free of employment discrimination (Title VII), and a different standard applies, as indicated in Comcast:


This is a lot more similar to the standard that BaseballJones has been attempting to import into the employment discrimination context. It is the traditional "but for" standard, i.e., the plaintiff must show that but for his race, he would have entered into the contract. Note that the Court in Comcast acknowledged the distinction:



I don't know if, long term, the core of Flores's complaint is really a 1981 claim, i.e., that but for his race, he would have been hired as the Giants Head Coach. This is a lot closer to the standard that BaseballJones has been hypothesizing around--but it's not the same as a Title VII claim (at least not yet...give it time, with this Court). Long term, Flores's claim is probably the employment discrimination claim, which he hasn't yet pleaded, but which he says he is going to amend to include--once he gets the EEOC right to sue letter. They probably pushed this thing quickly to make a timely filing, and are going to backfill with an amended complaint to include the Title VII claim. The Section 1981 claim is a placeholder, to assure federal jurisdiction for the time being, because it's his only federal claim. That's my best guess.

And I'm spitballing all this--there are undoubtedly civil rights and employment lawyers around here that can speak more authoritatively.

I wonder if they also considered an antitrust claim of some sort. Probably not, because Wigdor is an employment firm (and it's probably a bit of a stretch). But the leagues always seem to get a little defensive when their antitrust exemptions are questioned...
Adding two thoughts to this excellent post:

— You were the one who pointed out to me that the 1981 claim avoids the need to wait 6+ months for a right-to-sue letter. So long as that claim survives a motion to dismiss, it has served its purpose.

— I’m not an antitrust guy either, but under Twombly (2007 SCOTUS case) Flores can’t make an antitrust claim on information and belief — he needs to plead specific facts. He can go back and amend the complaint if he turns up evidence of a conspiracy among NFL teams to deny him (or Black coaches generally) employment opportunities.
 

sodenj5

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I’m not sure what’s worse: Flores waiting to see if he gets another job, then suing the NFL if he doesn’t; or suing the NFL and then not getting another job because no one will touch him.

View: https://twitter.com/adamschefter/status/1490852376076378112?s=21


I understand that his cause is bigger than him, but whoever advised Flores to come out with this before seeing the Saints and Texans interviews through probably cost him dearly.

This statement doesn’t seem to be doing him any favors either.
 
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Gash Prex

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He named every NFL team as a potential defendant and will most likely be involved in litigation that involves current coaches, gms and owners. This involves depositions etc….

There are many valid and rational reasons why it’s a non starter for him to be a head coach in the NFL right now. I wish that wasn’t the case.
 

DJnVa

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I’m not sure what’s worse: Flores waiting to see if he gets another job, then suing the NFL if he doesn’t; or suing the NFL and then not getting another job because no one will touch him.

View: https://twitter.com/adamschefter/status/1490852376076378112?s=21


I understand that his cause is bigger than him, but whoever advised Flores to come out with this before seeing the Saints and Texans interviews through probably cost him dearly.

This statement doesn’t seem to be doing him any favors either.
How it what he said obvious?
 

NomarsFool

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I know it's sort of par for the course for lawyer statements, but saying that the "only reason" that Lovie Smith was hired instead of Flores is because of the lawsuit is rather arrogant, isn't it? I mean, if I was Lovie Smith, wouldn't I feel a bit insulted? Flores thinks he had a "great interview". That is, of course, his opinion. Maybe he didn't have that great an interview. Maybe Lovie Smith had an amazing interview. Maybe there were things they just liked about Lovie Smith more than Brian Flores.
 

tims4wins

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I know it's sort of par for the course for lawyer statements, but saying that the "only reason" that Lovie Smith was hired instead of Flores is because of the lawsuit is rather arrogant, isn't it? I mean, if I was Lovie Smith, wouldn't I feel a bit insulted? Flores thinks he had a "great interview". That is, of course, his opinion. Maybe he didn't have that great an interview. Maybe Lovie Smith had an amazing interview. Maybe there were things they just liked about Lovie Smith more than Brian Flores.
It also kind of puts Lovie in a tough spot. I would think that overall he is sympathetic to Flores’ cause. But he can’t come out and say “yeah I agree with Flo the only reason I got this job was because of the suit”.
 

RobertS975

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How does it help the cause of more minority hiring if terminating that individual automatically brands them as racist?
 

BroodsSexton

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I’m not sure what’s worse: Flores waiting to see if he gets another job, then suing the NFL if he doesn’t; or suing the NFL and then not getting another job because no one will touch him.

View: https://twitter.com/adamschefter/status/1490852376076378112?s=21


I understand that his cause is bigger than him, but whoever advised Flores to come out with this before seeing the Saints and Texans interviews through probably cost him dearly.

This statement doesn’t seem to be doing him any favors either.
I seriously hope these NFL guys are as dumb as investment bankers and lawyers (the two groups who ROUTINELY are the source of the best emails) and the discovery pays dividends.
 

sodenj5

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It also kind of puts Lovie in a tough spot. I would think that overall he is sympathetic to Flores’ cause. But he can’t come out and say “yeah I agree with Flo the only reason I got this job was because of the suit”.
Flores also got canned because the owner basically said he was a dick and hard to work with. Then he goes ahead and releases a public statement that…kind of makes him seem like a dick.
 

Swedgin

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This is what he asks for in the complaint.
So he wants:
  • The Court to delcare the actions, conduct and practices of the Defendants illegal.
  • Injunction against the league to cure its discriminatory policies and practices
  • Certification as a Class (not happening, but I think it was only part of the complaint for strategic reasons)
  • Compensatory and punitive damages, with interest
  • Attorney's fees and costs
So, mostly money, but also the declaratory judgment against the league and perhaps some sort of injunctive relief.
The "prayer for relief" clause in a Complaint tells you nothing about what a plaintiff actually wants. It is largely boilerplate and should track the potential relief afforded by the statute/common law claim that provides the basis for the count. That being said in 95% cases the answer is money - because that is what our civil court system provides - most of the time. However, there are exceptions to every rule - see Taylor Swift and her nominal damage award.

Does Flores hope to see some dollars out of this? That's a reasonable assumption, given that as far as I know he does not already have generational wealth (x 100) like Taylor. But if your goal is to find out what Flores "really wants" the prayer for relief is not where you go looking.
 
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Flores can’t be surprised his suit has had an effect on his job prospects. If he wanted he could have waited for the NO and Houston decisions and then filed. Maybe he’ll wish he did, but I think after the NYG mess he was so aggrieved he decided to take a different path. It would have been much easier to keep silent and wait for the next opportunity. Despite the “difficult” label, media reports on him were generally positive, and I think most expected he would have offers this cycle. He’s taken the hard way and will likely suffer the professional consequences, especially now that the league has its hackles up over the litigation. I hope there’s a way he gets paid and this creates real change, but the league office and its owners will likely fuck it up.
 

RobertS975

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Read the complaint.

https://www.wigdorlaw.com/wp-content/uploads/2022/02/Complaint-against-National-Football-League-et-al-Filed.pdf

I question Flores' media strategy, but this is about far more than a single wrongful termination claim.
At the very beginning of the complaint, there is a quote from MLK that says the law prohibits being denied a job because of the "color of my skin". Indeed, I agree with that 100 %. But nowhere does the law state that I have to be hired because of the color of one's skin.

If we are ever to become a color blind nation, this is not helping.
 

Eddie Jurak

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At the very beginning of the complaint, there is a quote from MLK that says the law prohibits being denied a job because of the "color of my skin". Indeed, I agree with that 100 %. But nowhere does the law state that I have to be hired because of the color of one's skin.
Nowhere in Flores' suit does he claim the specific cause of action that you are inferring from the MLK quote.
 

Devizier

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I have to be hired because of the color of one's skin.

If we are ever to become a color blind nation, this is not helping.
Hold on, I’m looking for my eyeballs, because they just rolled out of my head.

This is one of those “do better” reminders because it’s clear that you haven’t read a single post in this thread. But thanks anyways.
 

Ralphwiggum

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At the very beginning of the complaint, there is a quote from MLK that says the law prohibits being denied a job because of the "color of my skin". Indeed, I agree with that 100 %. But nowhere does the law state that I have to be hired because of the color of one's skin.

If we are ever to become a color blind nation, this is not helping.
-Invoke MLK, likely without a clue of what MLK actually stood for, check.
-Gross bad faith interpretation of what Flores is asking for, check
-"I don't see color", check

You hit all the notes. Congrats.
 

jezza1918

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At the very beginning of the complaint, there is a quote from MLK that says the law prohibits being denied a job because of the "color of my skin". Indeed, I agree with that 100 %. But nowhere does the law state that I have to be hired because of the color of one's skin.

If we are ever to become a color blind nation, this is not helping.
If you want some reading material on why the bolded statement is incredibly counter-productive & ignorant, feel free to PM.
 

HomeRunBaker

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Now Flores is losing me. I mean sure, there are influences.

But I assume Bill has said great things about Flores, Daboll, McDaniels and many other of his former staff members when they were up for jobs.

Flores has a legitimate beef in general but training his eyes on Bill to this extent seems misplaced and even stupid to me.
Reading between the lines here it is apparent that Flores did not leave New England and Belichick on good terms. If anyone recalls the HBO documentary with Nick Saban he specifically speaks about having an issue with an assistant coach who leaves to take on a head job while taking other assistants with him. Belichick kinda rolled his eyes and spoke about how they should want to build their own staff without stealing guys from his former boss. This documentary was filmed 6 months after Flores left two openings (three including himself) on the Patriots staff when he took Chad O’Shea and Jerry Schuplinski with him to Miami.

Who knows what happened prior between the two and what was said following the hires (I’m sure Bill lethis feelings be known to Flores) but that passive aggressive dig to Flores in the documentary shows pretty clearly that there was some animosity between the two.

Edit: Didn’t read entire thread so apologies if someone brought this up earlier.
 

StuckOnYouk

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As a Giants fan who followed the whole hiring process of both GM and head coach based on NY football reporters and their nuggets they would put out over the past month, here's my take on what happened.

Mara wanted Flores. Schoen wanted Daboll. And in the end Mora decided to let his new GM make the final call.

Flores's own lawyers brought up Mara immediately calling Flores after firing Judge and ask that he not jump to any coaching jobs until he interviews with them. His nephew texted Flores soon after the Judge firing as well. And Carton mentioned that he had his own source that told him Mara said to Flores that he wanted to "bring him home".

In the end Schoen's decision was likely based on familiarity with Daboll, and the fact that he hoped Daboll could work magic with Jones or whoever the next QB is they hire. And I wouldn't be suprised that Schoen was also leery of Flores due to the stuff going on behind the scenes in Miami between Flores and Grier and personnel disagreements that were flaring up. Probably not the first thing you want to deal with when you get a GM job and you've come from an organization where everyone seems to be on the same page.

For what it's worth, even though I like the current Giants staff with Daboll and now bringing in Martindale as DC from Baltimore - I still would have preferred to have Flores as coach. And I do think he has a chance to coach again in the NFL.
 

lexrageorge

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Reading between the lines here it is apparent that Flores did not leave New England and Belichick on good terms. If anyone recalls the HBO documentary with Nick Saban he specifically speaks about having an issue with an assistant coach who leaves to take on a head job while taking other assistants with him. Belichick kinda rolled his eyes and spoke about how they should want to build their own staff without stealing guys from his former boss. This documentary was filmed 6 months after Flores left two openings (three including himself) on the Patriots staff when he took Chad O’Shea and Jerry Schuplinski with him to Miami.

Who knows what happened prior between the two and what was said following the hires (I’m sure Bill lethis feelings be known to Flores) but that passive aggressive dig to Flores in the documentary shows pretty clearly that there was some animosity between the two.

Edit: Didn’t read entire thread so apologies if someone brought this up earlier.
Although the text messages indicate that Bill and Flores were still on good terms, even if Bill originally thought he was texting w/ Daboll. I always thought the comment in the Saban/Belichick special was around the Eric Mangini fiasco (who, incidentally, took Daboll with him).

O'Shea got a nice promotion from WR coach to offensive coordinate, a position that was out of reach for him in New England with McDaniels on the staff. Jerry Schuplinski was similarly blocked. I'm sure Bill would prefer not to have his staff poached, but he also realizes that a lot of these guys are toiling long hours in windowless cubes deep in the bowels of Gillette so that they can get a better job, either inside or outside New England. Flores was a hot commodity after the 2018 Super Bowl win and it's conceivable that Bill did give Flores a tacit approval to hire O'Shea and Schuplinski. It was clear that a similar understanding did not exist when Mangini left. Then again, it's hard to find a more tight-lipped organization than the Patriots, so we're reading crumbs more than tea leaves here.
 

Super Nomario

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Although the text messages indicate that Bill and Flores were still on good terms, even if Bill originally thought he was texting w/ Daboll. I always thought the comment in the Saban/Belichick special was around the Eric Mangini fiasco (who, incidentally, took Daboll with him).

O'Shea got a nice promotion from WR coach to offensive coordinate, a position that was out of reach for him in New England with McDaniels on the staff. Jerry Schuplinski was similarly blocked. I'm sure Bill would prefer not to have his staff poached, but he also realizes that a lot of these guys are toiling long hours in windowless cubes deep in the bowels of Gillette so that they can get a better job, either inside or outside New England. Flores was a hot commodity after the 2018 Super Bowl win and it's conceivable that Bill did give Flores a tacit approval to hire O'Shea and Schuplinski. It was clear that a similar understanding did not exist when Mangini left. Then again, it's hard to find a more tight-lipped organization than the Patriots, so we're reading crumbs more than tea leaves here.
IIRC from whichever Holley book it was, the thing that really pissed Bill off about the Mangini affair was that Mangini was recruiting coaches to come with him, even when they were still prepping for the playoffs. Similarly, Easterby ruffled some feathers by trying to recruit guys to come to Houston. I imagine it's the sort of thing where there's a right way and a wrong way to do this, even if the end result is pretty similar.
 

Shaky Walton

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If Flores and Belichick have any bad blood based on Flores' hiring of Pats assistants, I doubt that prevented Bill from giving a positive endorsement of Flores if and when Miami asked about him.

Flores might have felt that he had no choice but to give Bill's texts up in his Complaint.

But I think some people would have gone about this in a different way in light of their relationship and the fact that they were on good enough terms to be texting about Flores' candidacy with the Giants. The same holds true for Flores' comments about Bill on that podcast. And the same holds true about Flores' lawyers' comments about Lovie Smith being an inferior candidate to Flores (which is admittedly likely true).

Your mileage may vary, but in my view, that Flores is likely right about a lot of what he is saying does not change the fact hat he's behaved like a dick. Which is ironically one of the things that was being said about him about his time in Miami -- great coach but doesn't play well in the sandbox.

Make no mistake, I am NOT at all suggesting that Flores is wrong about the lip service NFL teams pay to the Rooney Rule. On the merits, he's undoubtedly right. And I'm glad that he's raising the issues. It's about time this got dealt with in a way that makes teams give black candidates a real and fair shot. I just think he's doing some of it in a douchey way.
 
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BigJimEd

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It's about time this got dealt with in a way that makes teams give black candidates a real and fair shot. I just think he's doing some of it in a douchey way.
And just how should he go about it?

I hear a lot people saying similar things but not sure there's any way Flores can do this without that type of criticism. That's part of the problem. You are going to ruffle feathers when suing the league.

People think he should've waited until after Saints and Texans hires. Then what? Not sue if he's hired? Nothing changes. Sue anyway which will likely piss off the organization that just hired you.
 

YTF

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Make no mistake, I am NOT at all suggesting that Flores is wrong about the lip service NFL teams pay to the Rooney Rule. On the merits, he's undoubtedly right. And I'm glad that he's raising the issues. It's about time this got dealt with in a way that makes teams give black candidates a real and fair shot. I just think he's doing some of it in a douchey way.
I'm not sure what you might classify as douchey. Hindsight is 20/20, I'm sure there might be a thing or two he might approach differently and as others sometimes say here, "We don't know what we don't know." Aside from that, to date the class action aspect of this probably hasn't been what Flores hoped it might be and the highest profile incident of a coach of color to go public about this didn't do Flores any favors. Jackson's expression of his experience in Cleveland was not helpful in any way, but like it or not Flores' name now gets associated with Jackson. The statement after Lovie Smith's hiring in Houston wasn't a great look, but that came from Flo's attorney.
 

Cotillion

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a lot of this is starting to sound like the common “you should protest peacefully, but don’t take a knee, another way, no not that way either, try something else, no not that either”
 

E5 Yaz

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a lot of this is starting to sound like the common “you should protest peacefully, but don’t take a knee, another way, no not that way either, try something else, no not that either”
Agreed, and that's not a road I suggest folks start going down
 

pappymojo

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Patriots' Fans:

Yeah! Ha ha! Fuck the NFL! Fuck the Giants! Fuck the Dolphins!​
Wait, don't attack Belichick. He's just an old dude that fucked up texting which is kind of funny, right? That doesn't mean our team was racist though.​
There's definitely racism at play for the league. I just wish Flores wasn't handling this in such a douchey way.​
Giants' Fans:

Yeah, the NFL is racist, but our owner really, really wanted to hire Flores. He just listened to his GM. Besides, if the Giants told Belichick that we were going to hire Daboll before we even interviewed with Flores, well,.... Wait, what makes you think Belichick even knew who we were going to hire? The team obviously wouldn't have told Belichick. Why would the Giants do that? Probably Belichick misunderstood. Our team wasn't racist.​
There's definitely racism at play for the league. I just wish Flores wasn't handling this in such a douchey way.​
Broncos' Fans:

Yeah, the NFL is racist, and John Elway is a drunk. We all know that. That doesn't mean our team was racist though.​
There's definitely racism at play for the league. I just wish Flores wasn't handling this in such a douchey way.​
Dolphins' Fans:

Yeah, the NFL is racist, and our owner sucks, and it sucks that we were trying to lose games, but our team sucked. Of course we were trying to lose games. What were they supposed to do? That being said, the Dolphins hired Flores in the first place & our GM is black. Flores was a jerk. He wanted to trade for Watson. Flores got in the way of developing Tua. We needed to move on from him. Back-to-back winning seasons was underperforming. Obviously, our team isn't racist.​
There's definitely racism at play for the league. I just wish Flores wasn't handling this in such a douchey way.​
 

sodenj5

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Patriots' Fans:

Yeah! Ha ha! Fuck the NFL! Fuck the Giants! Fuck the Dolphins!​
Wait, don't attack Belichick. He's just an old dude that fucked up texting which is kind of funny, right? That doesn't mean our team was racist though.​
There's definitely racism at play for the league. I just wish Flores wasn't handling this in such a douchey way.​
Giants' Fans:

Yeah, the NFL is racist, but our owner really, really wanted to hire Flores. He just listened to his GM. Besides, if the Giants told Belichick that we were going to hire Daboll before we even interviewed with Flores, well,.... Wait, what makes you think Belichick even knew who we were going to hire? The team obviously wouldn't have told Belichick. Why would the Giants do that? Probably Belichick misunderstood. Our team wasn't racist.​
There's definitely racism at play for the league. I just wish Flores wasn't handling this in such a douchey way.​
Broncos' Fans:

Yeah, the NFL is racist, and John Elway is a drunk. We all know that. That doesn't mean our team was racist though.​
There's definitely racism at play for the league. I just wish Flores wasn't handling this in such a douchey way.​
Dolphins' Fans:

Yeah, the NFL is racist, and our owner sucks, and it sucks that we were trying to lose games, but our team sucked. Of course we were trying to lose games. What were they supposed to do? That being said, the Dolphins hired Flores in the first place & our GM is black. Flores was a jerk. He wanted to trade for Watson. Flores got in the way of developing Tua. We needed to move on from him. Back-to-back winning seasons was underperforming. Obviously, our team isn't racist.​
There's definitely racism at play for the league. I just wish Flores wasn't handling this in such a douchey way.​
I don’t necessarily think that Flores is handling it in a “douchey way” but I do think that he’s undermining his own case when he released that statement on Lovie Smith.

He is making the case that he was dismissed because he wouldn’t cooperate with the owner’s request to tamper and tank.

They’re saying that he was fired because he was kind of a dick and hard to work with.

And so far, Flores is showing that he might actually kind of be a dick and hard to work with.
 

Ralphwiggum

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I think the only stumble so far from team Flores was the statement after the Lovie Smith hiring. They had to say something, but pointing out Flores is a better candidate was IMO unnecessary. Just say congrats to Lovie Smith but one team hiring one black coach doesn't mean there isn't a larger problem. Beyond that, there's no way of doing what Flores is trying to do without people's feathers getting ruffled. Hell we spent two days in this thread on why recommendations like the one BB gave for Daboll can be problematic, with more than a few posters who simply could not internalize that the way they have hired people basically forever might be problematic. People don't like it when they are faced with the reality that they (or their team, or their coach) might be part of the problem.
 

pappymojo

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I don’t necessarily think that Flores is handling it in a “douchey way” but I do think that he’s undermining his own case when he released that statement on Lovie Smith.

He is making the case that he was dismissed because he wouldn’t cooperate with the owner’s request to tamper and tank.

They’re saying that he was fired because he was kind of a dick and hard to work with.

And so far, Flores is showing that he might actually kind of be a dick and hard to work with.
Every human being on the planet is kind of a dick, especially when we get mistreated.