All Aboard the Coaching Carousel: Analyzing Challenges to the Rooney Rule in the NFL
Diversity is a fundamental American value that only continues to grow.[1] World leaders have implemented diversity, equity, and inclusion (DEI) hiring practices to build a more just society, but such practices may be forced to change significantly to conform to the modern legal landscape.[2] The Rooney Rule in the National Football League (NFL) is the latest employment policy to face legal scrutiny.[3]
The Rooney Rule
The Rooney Rule is an employment policy designed to increase the number of minority candidates hired in leadership positions in the League’s thirty-two member teams.[4] The NFL adopted the Rule in 2003 based on recommendations from its DEI committee, and the Rule has expanded ever since.[5]
As of 2022, after expanding the minority candidate definition to include women, NFL teams are now required to interview at least two minority candidates for vacant head coach, general manager, and coordinator positions, and one minority candidate for the quarterbacks coach position.[6] Additionally, teams are rewarded for developing minority talent who go on to become a head coach or general manager elsewhere in the League.[7] If a team loses a minority executive or coach to another team, that team receives a third-round compensatory draft pick in the NFL Draft for two years; if a team loses both a coach and a personnel member, it receives a third-round compensatory pick for three years.[8]
The Rule has successfully promoted diverse leadership with a record nine minority head coaches entering the 2024 season, but the NFL now faces legal challenges to its DEI initiative.[9]
The Challenges
Leading the charge against the Rooney Rule is America First Legal (AFL), a public charity dedicated to challenging “radical left” policies that violate the civil rights of American citizens.[10] AFL has targeted the diversity policies of Major League Baseball (MLB), NASCAR, and other prominent corporations, and it now turns to the NFL.[11]
On February 6, 2024, AFL sent a letter to the Equal Employment Opportunity Commission (EEOC) requesting that it investigate the NFL and its member teams for their unlawful employment practices.[12] According to AFL, the Rooney Rule facially violates Title VII of the Civil Rights Act of 1964 for limiting, segregating, or classifying their employees or applicants in ways that deprive at least some individuals of interview and employment opportunities specifically because of race, color, or sex.[13] AFL argues that no matter how well-intentioned, quotas and employment practices aimed at achieving racial “balancing” are strictly prohibited, and the Rooney Rule is no exception.[14]
Contrary to the NFL’s meritocratic system in selecting talent for the field, says AFL Senior Advisor, Ian Prior, “NFL teams must follow the ‘Rooney Rule’ and interview prospective coaches and executives, not because of their skill and hard work, but rather because of the color of their skin.”[15]
The mandatory interviews do not appear to be effective either. Rather than significantly increasing the percentage of minority coaches in the NFL, former minority interviewees claim that the Rule has instead resulted in teams conducting “sham interviews” with minority candidates “solely to check the Rooney Rule box.”[16] Given the limited timeframe to address leadership positions after the NFL season, this results in fewer opportunities for similarly situated, well-qualified candidates who are not minorities.[17]
The Implications
The merits of AFL’s claims are not yet known, as there are few cases that directly address interview practices similar to the Rooney Rule, but there is some guidance on the subject.[18] In the wake of the Supreme Court decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the EEOC released a statement addressing the current state of diversity-motivated employment practices.[19] The Court’s decision does not address employer efforts to foster a diverse workforce, so “it remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”[20]
However, the Rooney Rule is not free from scrutiny. EEOC Commissioner Andrea Lucas believes that the SFFA decision could implicate a range of common employer DEI initiatives, specifically referencing “selecting interviewees partially due to diverse candidate slate policies.”[21]
New York University law professor Kenji Yoshino agrees that such practices could be legally vulnerable.[22] As the faculty director of the Meltzer Center for Diversity, Inclusion, and Belonging, Yoshino rates DEI programs as green, yellow, and red depending on their level of risk, with red being the riskiest.[23]
The Rooney Rule, says Yoshino, considers race and sex as factors when populating candidate pools, but teams do not ultimately hire candidates based on those characteristics; this places the Rooney Rule “squarely in the yellow zone.”[24] The real problem with the Rule is the compensatory draft pick system, which acts as an incentive for teams to develop minority talent.[25] This incentive is particularly risky, and it could place the Rule in the “red” zone, thereby exposing the NFL to legal action.[26]
So what is the solution? Yoshino and fellow law professor David Glasgow identify three ways that organizations can mitigate risk in their DEI programs: avoid preferences, avoid protected groups, or avoid palpable benefits.[27]
Due to the nature of the Rooney Rule, it will be difficult for the NFL to avoid protected groups such as race or sex, but it can certainly address the other two options. The Rule does not directly place preferences on diverse candidates; it merely provides candidates with the opportunity to interview for vacant leadership positions. The NFL has the most work to do with its incentive system. By rewarding teams for developing minority talent, the League is indirectly placing preferences on members of protected groups. If this practice persists—and the Supreme Court continues to shut down DEI initiatives—the NFL could be in trouble.
The Rooney Rule in the NFL has evolved significantly over the last twenty years, and it represents the extent our country values equal opportunity. DEI practices must conform to the law as it develops, but this does not mean that they will disappear. Committed employers will adapt to opposing forces to ensure that their mission is accomplished.
Footnotes
