DeMaurice Smith and Carl Lasker did not publish “The Rooney ‘Suggestion,'” their paper that will be featured in a future edition of the Yale Law and Policy Review, to create the Rooney Rule 2.0.
Instead, using Smith’s experience as executive director of the NFL Players’ Association for the last 14 years and his background as a lawyer, they wrote the 100-page missive to formally state what has been largely known for decades: that the way the league hires head coaches is unfair and inequitable.
“The Rooney Rule created this myth that the league office was somehow going to enforce this rule and the league office doesn’t have any power to enforce really any rules except for the ones that the owners agree to be bound with,” Smith told USA TODAY Sports in a lengthy video interview last Friday, his final day as executive director of the union.
Owners always considered it a suggestion, not a rule
Smith said that he spoke to multiple owners about the Rooney Rule during his time leading the union.
“I know that there are owners – plural – who want to build a more fair system,” Smith said. “And the paper was written for them as well.”
Because, as the paper explains, it is the owners who were never going to subject themselves to the structure of a rule that had little chance of being enforced with legitimate consequences. The secondary blame for the rule’s failure, Smith said, lies with those who thought calling it a rule would actually bind the activities of a group of people whose business had historically never been regulated.
The paper attempted to examine why the Rooney Rule was destined to fail from its inception. From the time the rule was enacted by recommendation of the league’s Workplace Diversity Committee in 2003 – and named after the late Dan Rooney, then-chairman of the group and former owner of the Pittsburgh Steelers – the owners already perceived it as a suggestion rather than a rule, Lasker said.
“I think the owners are the only ones with the keys to meaningful change in the NFL,” Lasker said.
The NFL did not respond to a request for comment regarding the paper’s assertion that the Rooney Rule was merely a “suggestion.”
Owners rule their individual ‘fiefdoms’
The average fan misinterprets how the league is structured, Smith said. While it presents itself as a monolith corporation behind commissioner Roger Goodell, it is essentially 32 separate fiefdoms with the owner controlling all within their team. That deliberate system, Smith said, means it’s nearly impossible for a right-minded owner – or even a right-minded commissioner – to actually bind all 32 people with a rule. For that to happen, the owners would have to write the rule into the NFL Constitution, which wasn’t the case with the Rooney Rule.
In turn, there is little the league office can do to invoke change. The natural decentralization and lack of oversight by the league ensures that there is no record when teams violate rules, Lasker said.
“And it’s not so much to ask a state government or a federal government – who is giving taxpayer money to the NFL – to simply say, ‘Here’s the roadmap to enforce your own laws,’” said Smith, who noted New York’s Democratic Gov. Kathy Hochul pushing through legislation that gave the Buffalo Bills $800 million for a new stadium that won’t be controlled by the state or local governments.
In the courts, the league’s strategy is to force coaches who legally challenge the NFL into arbitration, such as it tried in the proceedings involving former Miami Dolphins head coach Brian Flores and his suit against the league and three teams. However, a federal judge in March ruled that the case would proceed to trial.
“You force coaches who are aggrieved into arbitration so that they could never publicly discover things about the league,” said Lasker, a second-year law student at Yale and Smith’s former teaching assistant, “and their settlements are silenced.”
NFL operates ‘like it’s not in the United States of America’
The lack of diversity, especially compared to player demographics, among NFL head coaches has been well-documented in both media and scholarship articles.
“But I think it’s hard for newspapers to make a pitch to (governments) for oversight,” Smith said.
Hence the paper in a law review, as Smith and Lasker hope it will spur officials at the federal, state and local levels to investigate hiring practices within the league that would be derided in any other industry, they said.
“What we’ve also tried to do is highlight where government activity does touch the NFL, which is generally in making the NFL more profitable and allowing the owners to engineer private fortunes,” Lasker said, “and where government oversight does not touch the NFL, which is in all these areas that affect the public interest.”
Over the past two decades, corporate America has adopted its own versions of the Rooney Rule to varying degrees. The result is a shield that has allowed many companies to receive the benefit of the doubt from regulators.
“When you have this rule with a catchy name, where industry across America is abiding by it, then it makes it a lot easier for government oversight to say, ‘Oh, we’re good there. They are aware of the problem and they’re trying to fix it,’” Lasker said.
According to a survey of 47 current and former NFL coaches of color, 80% of respondents said they were never briefed on fair employment guidelines set forth by the U.S. Equal Employment Opportunity Commission or related laws and regulations governing fair employment. Nearly 90% said they believe the NFL and its owners do not adhere to federal statutes against discrimination.
“It makes you come to grips that the NFL operates like it’s not in the United States of America,” Smith said.
Is Rooney Rule reform possible?
Smith likens the efforts to increase fair hiring standards to a similar movement that took decades to flesh out: free agency.
“It’s something that (the owners) never wanted, but it’s something that would make the league better,” he said. “I think there is a group of people who understand that their long-term legacy is going to hinge on whether the NFL perpetuated an unfair and unequal system while they were there, and whether they chose to do something about it.”
One main aspiration of the paper is to convince oversight entities to begin constructing a paper trail compiled by a neutral oversight board that judges a coach’s qualifications. The information from that report would then be publicly available.
Other recommendations include standardized and specific job postings and a minimum application window of 30 days.
“Really, the Rooney Rule is dependent on whoever is making the hires and whoever is pulling the strings,” Lasker said. “It’s not a rule at all. It’s a suggestion of whether they can follow it or not.”
Follow Chris Bumbaca on Twitter @BOOMbaca.
