Note: This article was originally written for The Student Sports Law Network and is republished here with the author’s permission.
As our country focuses on racial injustices throughout the United States, virtually no part of society is immune to racial inequality, including the NFL. Roger Goodell, commissioner of the NFL, released a statement in the wake of the many tragedies that have occurred around the United States and insisted that the NFL “was committed to continuing the important work to address these systemic issues.” Before the NFL can do anything in the community, they must address systemic issues in their own league.
Sports have the power to change the nation. Since 1947, when Jackie Robinson broke the color barrier in Major League Baseball, sports have become a place where people from all backgrounds come together, momentarily erase social discrimination, and bask in the joy that sports bring to us. Since Jackie Robinson, the number of minority professional athletes in all major sports has steeply increased. However, despite the fact that the athletes in most professional sports leagues are racially and ethnically diverse, the lack of diversity among coaches and management is stark.
One means by which to increase racial diversity is through race-conscious hiring, ordinarily prohibited by Title VII of the Civil Rights Act of 1964. However, the U.S. Supreme Court has recognized that affirmative action is permissible, and race can be a “plus” factor if candidates have relatively equal qualifications. Affirmative action programs thus allow an employer to consider race affirmatively in the hiring process in order to ensure equal opportunity. For an employer to have a valid affirmative action plan, there must be a manifest imbalance in the representation of minorities in traditionally segregated job categories. The plan must not unduly trammel the rights of white workers. Once the manifest balance is no longer needed, the employer cannot work to maintain the balance.
After the 2001 NFL season, a team of high-profile discrimination attorneys, including the late Johnnie Cochran, noted the significant lack of minority coaches in the NFL, particularly when looking at the pool of qualified head coaches. In 2001, 60% of the players were minorities, while only 6% of the coaches were minorities.
Cochran and his team analyzed the performance of black head coaches and white head coaches from 1989-2001. The results of the analysis revealed that even though black coaches won a higher percentage of NFL games, they were less likely to be hired and more likely to be fired than their white counterparts. In Hazelwood School District v. United States, the Court noted that statistics are an important source of proof in employment discrimination cases. “Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.” Not blind to the employment statistics and understanding a pattern or practice suit was looming, the NFL implemented an affirmative action plan known as the Rooney Rule.
The Rooney Rule, created by former Pittsburgh Steelers owner Dan Rooney, requires NFL teams who are looking to hire a new head coach or general manager to interview at least one racial minority applicant for the position. According to the NFL Report Card, as of the start of the 2020 season, 70% of NFL players are minorities; however, only 12.5% (4 of 32) of NFL head coaches and 3% (1 of 32) of General Managers are minorities. Since 1989, the NFL has had only 22 minority head coaches. After 17 years of having the Rooney Rule, it is safe to say that its goal of diversifying head coach and GM ranks has failed. On the other hand, the National Basketball Association’s (NBA) diversity numbers are great. Why?
It starts at the top. In the NFL, all team owners are white. Very likely, some of these owners harbor implicit bias against minorities. It is not surprising that white male owners typically hire white men to run their team. Perhaps the Rooney Rule’s mandate of interviewing a black candidate satisfies their diversity “checklist.” Perhaps billionaire owners who have rarely, if ever, worked with minorities may unconsciously believe white males are intellectually superior to other races and genders. Professor N. Jeremi Duru from American University Washington College of Law states that: “The presumption of intellectual inferiority, but physical superiority, obviously hampers the black candidate seeking a quarterback position, for which both physical and intellectual ability are deemed necessary. The presumption, however, completely handicaps the black candidate pursuing a coaching position, a position for which physical ability is irrelevant and intellectual ability –the candidate’s presumed weakness – is paramount.”
The NBA, on the other hand, has more diversity at the top, which trickles down to the General Manager and coaching positions. 37.6% of the NBA league office is comprised of minorities, including deputy commissioner Mark Tatum.  The league office, which is made up of professionals who run all of the business of the NBA, has the highest percentage of people of color in men’s professional sports. 26.1% of General Managers are minorities in the NBA, while only 6.3% of NFL General Managers are minorities. CEOs and Presidents of teams in the NBA are 10.7% minorities, compared to 5% in the NFL. These numbers directly correlate to the number of head coaches in the respective leagues. While only 12.5% of NFL coaches are minorities, 33.3% of NBA coaches are minorities.
The silver lining for the NFL is that growth in diversity is possible. In recent months, our national consciousness of racial inequities has begun to rise. By examining the NBA’s successful diversity initiatives, the NFL may recognize that diversity efforts are not a “checklist” burden, but an opportunity for meaningful racial progress. Goodell recently stated “We, the NFL, admit we were wrong for not listening to NFL players earlier…”.  It seems that league attitudes may be shifting at the very top. With qualified black coaches and general manager candidates looking for jobs, including Eric Bieniemy and Louis Riddick, the NFL teams will have the opportunity to put their money where their mouths are. Hopefully, Mr. Goodell and NFL owners stand by their word, and are committed to addressing these systemic issues.
 Johnson v. Transportation Agency, Santa Clara Cty, Oyez, https://www.oyez.org/cases/1986/85-1129
 Cochran: Black Coaches in the NFL: Superior Performance, Inferior Opportunities (2002).
 Hazelwood v. United States, 433 U.S. 299, 97 (1977).
 Lupchick, Dr. Richard, The 2019 Racial and Gender Report Card: National Football League (2019).
 N. Jeremi Duru, The Fritz Pollard Alliance, The Rooney Rule, and The Quest to “Level the Playing Field” in the National Football League (2008).
 Lupchick, Dr. Richard, The 2019 Racial and Gender Report Card: National Basketball Association (2019).
 Lombardo, John, Report gives NBA high grades for diversity hiring (2018).
 Lupchick, Dr. Richard, The 2019 Racial and Gender Report Card: National Basketball Association, 2019.
 Melas, Chloe, NFL Commissioner Rodger Goodell says league was wrong for not listening to players earlier about racism (2020).