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Speaker 1: This is the Bloomberg Business Sports show that we explored

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Speaker 1: the big issues in the world of sports. Sun Gold,

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Speaker 1: I'm Scarlett f Good, I'm Mike Lynch. Today we're breaking

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Speaker 1: down some legal stories and gro sports, talking about the

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Speaker 1: ongoing lockout in Major League Baseball. The stalemate continues the

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Speaker 1: players and owners far apart in negotiations for a labor

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Speaker 1: contract to replace the deal that expired in December. But first,

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Speaker 1: let's start with the NFL, where former Miami Dolphins head

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Speaker 1: coach Brian Flores has filed a lawsuit accusing the league

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Speaker 1: and teams of violating civil rights laws, alleging discrimination in

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Speaker 1: the hiring practices. For more, let's bring in our sports

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Speaker 1: law expert, Martin Edle. He is with Colston and Stores

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Speaker 1: sports law practice co chair and a law professor at Columbia. Marty,

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Speaker 1: welcome back to the show, old friend. Michael, it's so

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Speaker 1: nice to be here. Thank you for having me. Mike,

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Speaker 1: nice to speak with you, and Scarlett, it's a pleasure

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Speaker 1: to meet you. Let's start probably with the and I

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Speaker 1: know we use the phrase blockbuster lawsuit and he's overworked

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Speaker 1: all the time in the media, but this one is uh,

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Speaker 1: this one in the NFL with Brian Flores. This has

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Speaker 1: totally rocked the league. Your thoughts, first of all on

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Speaker 1: the impact of this lawsuit and what it means for

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Speaker 1: the game. So let me start off by what the

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Speaker 1: naked allegations are. What Brian Flores has claimed was systemic

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Speaker 1: racism in the hiring and maintenance of head coaches in

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Speaker 1: the NFL. UM. This is huge, as you just mentioned,

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Speaker 1: Whether the lawsuit itself has any gains any traction is

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Speaker 1: another question which we can get to if you like later,

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Speaker 1: But right now, the public relations fallout has to be

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Speaker 1: overwhelmingly against UH, the NFL. That being the case, there

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Speaker 1: are a couple of charges he makes in his suit. Um.

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Speaker 1: He talks about how he was ordered to tank games

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Speaker 1: to get a hired so that the Dolphins could get

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Speaker 1: a higher draft pick. He was kind of ordered by

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Speaker 1: the owner. UM. He also alleges, and this is a

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Speaker 1: more uh blockbuster charge I guess, is that he was

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Speaker 1: only interviewed by certain NFL clubs so that they could

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Speaker 1: check the box under the Rooney rule, and that he

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Speaker 1: was not really a serious candidate for the head coach job,

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Speaker 1: as revealed by texts from Bill Belichick, the head coach

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Speaker 1: of the New England Patriots, which charge is harder to

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Speaker 1: prove in a court of law. So let me take

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Speaker 1: it in two bites, if I may, Scarlett. First of all,

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Speaker 1: the claim um that Mr Flores has made about tanking games,

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Speaker 1: it's really difficult to understand why that would be in

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Speaker 1: a discrimination lawsuit. UM. And it's problematic of his entire

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Speaker 1: complaint that he throws a lot of claims in there,

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Speaker 1: and they may have legs to them, um, but he

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Speaker 1: throws a lot of claims which really have no basis

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Speaker 1: in a discrimination claim but cast the NFL in a

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Speaker 1: poor light. UM. So if you go to then the

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Speaker 1: second point that you mentioned, which is sham interviews, I

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Speaker 1: think that's what Mr Flora's refers to them and his

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Speaker 1: complaint that could be more significant, UM, because you have

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Speaker 1: the Rooning rule. It was a rule that was adopted

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Speaker 1: in two thousand three and amended two years ago which

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Speaker 1: requires NFL teams to interview a minimum of two minority

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Speaker 1: candidates for a head coaching position. If if it is

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Speaker 1: the truth as Mr Flory's claims, which will have he

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Speaker 1: may have the chance to take discovery on of his

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Speaker 1: case survived. Um, it'll be interesting to see whether this

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Speaker 1: was just a series of sham interviews UM and a

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Speaker 1: number of owners did not have any interest in hiring

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Speaker 1: a minority candidate, or if he just didn't stack up

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Speaker 1: with some of the other candidates. Hi, Marty, again, this

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Speaker 1: is Mike Lynch up in Boston. So use the word traction.

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Speaker 1: What does this How does this lawsuit get traction? Alright?

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Speaker 1: So a great question. So what Mr Flores has done

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Speaker 1: is he's filed a claim which is called a class action,

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Speaker 1: and into it he's thrown a whole bunch of allegations.

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Speaker 1: You're going to see a concerted effort once we get

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Speaker 1: beyond the public relations um part, You're going to see

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Speaker 1: a concerted effort by the defendants first to say that

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Speaker 1: this does not this is not an appropriate claim for

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Speaker 1: a class action. That's going to delay resolution for an

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Speaker 1: amount of time six months, a year, maybe a year

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Speaker 1: and a half, while the defendants are able to take

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Speaker 1: what's called class discovery, which does not go to the merits.

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Speaker 1: So the case will be in this legal limbo for

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Speaker 1: that time. If it is determined that Brian Flores has

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Speaker 1: a viable class action, then it's all likelihood the defendants

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Speaker 1: will move to dismiss the claims under the applicable law,

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Speaker 1: again delaying resolution on the merits or even taking discovery

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Speaker 1: on the merits for the period of time that the

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Speaker 1: motion to dismiss needs to get decided, probably another six

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Speaker 1: months or so. So as you can tell, we're talking

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Speaker 1: about an extended period of time before Mr. Flores lawsuit

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Speaker 1: can really see the light of day in terms of

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Speaker 1: whether he's able to take what we call merits discovery

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Speaker 1: or discovery on the merits. And that's only assuming he

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Speaker 1: survives those two motions that I just mentioned. So that's

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Speaker 1: what I meant by traction. If he gets to the

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Speaker 1: point where he can take merits discovery, then there's going

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Speaker 1: to be questions about what information is confidential and can't

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Speaker 1: be disclosed too of all folks, the media, um or

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Speaker 1: the consuming public, and what is fair game for disclosure,

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Speaker 1: Probably another set of motions and delays before you get

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Speaker 1: to the point at which the parties can get evidence

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Speaker 1: to prove their claims. I want to go back to

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Speaker 1: the Rooney rule. I remember when this came out, like

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Speaker 1: I said in two thousand three, I thought this is great.

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Speaker 1: This is going to level the playing field and all that,

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Speaker 1: and and all of a sudden it just blew apart. Marty,

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Speaker 1: I guess I asked what happened? Why did it blew apart? Well,

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Speaker 1: that's a great question, which I think goes to the

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Speaker 1: issue that Mr. Flora's raises, which is whether or not

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Speaker 1: their systemic racism in the hiring or maintenance of head

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Speaker 1: coaches in the NFL. As you know, no other professional

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Speaker 1: league has a rule similar to the Rooney rule, and

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Speaker 1: why because I guess they felt there wasn't a need

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Speaker 1: to have you look, for instance, at the NBA, the

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Speaker 1: NBA has thirteen of thirty head coaches who are African American. Um,

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Speaker 1: that's a significant number. Major League Baseball has I think

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Speaker 1: two head coaches who are African American out of thirty,

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Speaker 1: but they're African American. Player percentage is only about eight percent.

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Speaker 1: So again, and it's the numbers seem to align with

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Speaker 1: each other in all leagues except for the NFL, of

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Speaker 1: those three at least. Um, and going specifically to your

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Speaker 1: question of why the Rooney rule hasn't worked, I guess

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Speaker 1: the answer is. I guess the answer is that some

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Speaker 1: teams only use it as maybe only using it as

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Speaker 1: an excuse, But the NFL cannot mandate the hiring. They

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Speaker 1: can only provide the procedural mechanisms for owners to look

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Speaker 1: at candidates of quality and hopefully hire them. It sounds

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Speaker 1: like the ice cream truck has arrived. I want to

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Speaker 1: I want to chop the bar, and I want the woman.

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Speaker 1: I just want to make sure the ice cream man

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Speaker 1: got all these rem me back change. Everyone in the

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Speaker 1: household is is good with their ice cream bars. Why

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Speaker 1: do you think this is a problem specific to the NFL,

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Speaker 1: not the MLB and NBA. You you told us how

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Speaker 1: the other leagues don't have a need for something like

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Speaker 1: the Rooney rule. From where you sit, having practiced law

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Speaker 1: and covered the sports industry at large, sports law over overall,

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Speaker 1: not limited to the NFL. What is specific about the

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Speaker 1: culture of the NFL that has led to this that

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Speaker 1: hasn't led to a similar problem in the MLB and

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Speaker 1: n B A I have pondered over that for literally

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Speaker 1: decades now without coming to a hard and faced conclusion.

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Speaker 1: I'd like to think it is not systemic racism in

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Speaker 1: the NFL. I think the NFL itself, as an an

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Speaker 1: entity um has tried to pave the way for opportunities

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Speaker 1: for people of color for non a people who are

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Speaker 1: not of color, but it hasn't worked. Um. I'm not

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Speaker 1: sure why. Once upon a time I would have said

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Speaker 1: that it's because the NFL has a group of owners

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Speaker 1: which aren't as varied as some of the ownership interests elsewhere.

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Speaker 1: They had fewer corporations and more individuals and ownership positions

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Speaker 1: than some of the other leagues. But that really isn't

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Speaker 1: the case anymore. Um, And there certainly are very qualified

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Speaker 1: people of color who could be who should be head

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Speaker 1: coaches in the NFL, Marty Um. Congressman McGovern of Massachusetts

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Speaker 1: wants to have hearings on this lawsuit in Capitol Hill.

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Speaker 1: Is that a frivolous exercise or that could that help

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Speaker 1: expedite um the traction of this lawsuit. So I'm glad

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Speaker 1: you've adopted my term traction here. Yeah. So that's the

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Speaker 1: key word of the day. I want to be with, right, Um.

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Speaker 1: I think it's a terrific way if Congressman the government

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Speaker 1: follows through of bringing to public attention what will undoubtedly

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Speaker 1: get buried in the minutia of a lawsuit over the

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Speaker 1: next couple of years. So Congress always has the ability,

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Speaker 1: the ability to shine the light on a problem and

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Speaker 1: bring it to public attention, whereas if it's in the lawsuit. Yeah,

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Speaker 1: we've seen over the last two weeks the public relations machines,

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Speaker 1: both for Mr Flores as well as for the NFL

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Speaker 1: and the member teams who are being sued go into

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Speaker 1: you know, top gear. But we've we've seen a lessoning

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Speaker 1: of attention in the press and media in general to

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Speaker 1: the allegations in the lawsuit as they start to wind

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Speaker 1: their way through the legal process. So the bottom line is,

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Speaker 1: I think this is a great way of bringing public

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Speaker 1: attention and focusing public attention on what could be a

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Speaker 1: real problem. This is where we check the box. It

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Speaker 1: gets complicated for Brian Flores because he is now saying

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Speaker 1: that the Texans passed on him because of the litigation.

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Speaker 1: But the Texans have just hired Lovey Smith as their

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Speaker 1: head coach, Lovey Smith, another African American. How does this

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Speaker 1: complicate Brian Flores's lawsuit? So it complicated in a number

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Speaker 1: of ways. Um One is that now you have a

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Speaker 1: qualified African American being hired, which might undermine some of

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Speaker 1: the claims of systemic racism hurled against the NFL and

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Speaker 1: some of its member teams. Uh. Mr flores Is response

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Speaker 1: undoubtedly will be something along the lines of, oh, yeah,

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Speaker 1: that's what they're trying to do. Is now that I've

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Speaker 1: shine the light on them, they're trying to rehabilitate themselves.

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Speaker 1: I focusing attention away by hiring a single African American candidate. Um,

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Speaker 1: so you'll have point and counterpoint there. Flora says that

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Speaker 1: the Texans passed on him because of the litigation, and

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Speaker 1: when the lawsuit first came out, there was a lot

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Speaker 1: of talk about how he's just made himself completely unhireable

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Speaker 1: in the NFL. Is that a fair assessment of the situation?

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Speaker 1: By doing this, he can never count on getting a

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Speaker 1: job in the NFL. Again, I don't think so. You know,

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Speaker 1: to me, it's always um. I'd like to believe it's

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Speaker 1: whoever is going to be ultimately the most qualified. After

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Speaker 1: is a real need, somebody's going to look beyond it.

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Speaker 1: But Mr Flores has file the lawsuit. That lawsuit gives

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Speaker 1: a signal to people that why do we want to

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Speaker 1: hire somebody who may not like our decisions down the

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Speaker 1: road and may choose to sue us for our decisions.

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Speaker 1: So teams don't like to buy into lawsuits, and that

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Speaker 1: will be a negative in whether or not Mr. Flora's

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Speaker 1: can get higher down the road. On the other hand,

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Speaker 1: I am a great believer in merit. I'd like to

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Speaker 1: believe there are teams out there that believe in merit.

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Speaker 1: And Mr Flora certainly has a good track record with

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Speaker 1: Miami as a head coach. So maybe maybe, um, he

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Speaker 1: will get hired down the road. And I'm glad you

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Speaker 1: brought that up, because that's part of why I think

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Speaker 1: he did include that allegation that he was asked to

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Speaker 1: tank the rest of the season because he had to

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Speaker 1: back to back winning seasons his his uh when US

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Speaker 1: record was pretty good and on its own, would not

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Speaker 1: necessarily explain why he was fired from the Dolphins. Yeah,

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Speaker 1: I think that that's a that's a great point, um.

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Speaker 1: And you know, tanking is in the lawsuit more atmospheric

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Speaker 1: than a substantive allegation showing discrimination. Uh. You know, we

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Speaker 1: had the Brown's head coach come out a few days

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Speaker 1: later and say, yeah, I was ordered to tank games too,

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Speaker 1: which he walked back a bit a couple of days

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Speaker 1: after that. Uh. But there's always been some impression at

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Speaker 1: least in the public that maybe teams aren't playing up

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Speaker 1: to potential and why are they not doing that? And

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Speaker 1: hopefully that what this will do is encourage the NFL

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Speaker 1: to conduct an investigation independent of the lawsuit into questions

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Speaker 1: of tanking, because is that that is the type of

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Speaker 1: allegation which, if correct, would really undermine the credibility of

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Speaker 1: the NFL. You know, I go back a generation ago

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Speaker 1: to the black Socks scandal, and there was tanking. Of

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Speaker 1: course it was done by professional gamblers then, but it

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Speaker 1: undermined confidence in Major League Baseball that took Major League

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Speaker 1: Baseball years to regain the trust of the viewing public. Marty,

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Speaker 1: that's the alleged A hundred thousand dollars per game offer

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Speaker 1: from Steve Ross to Brian Flores is pretty tough to prove.

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Speaker 1: Does that in any way detract from the merit of

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Speaker 1: this case? So I think the answer is yes, because

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Speaker 1: it may become a sidelight issue, which has, at least,

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Speaker 1: to me, from an employment law perspective, very little to

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Speaker 1: do with whether or not there is systemic racism or

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Speaker 1: there was racism. Racism was a motivating force uh in Mr.

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Speaker 1: Flores case. Um these are allegations which are independent of

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Speaker 1: that claim. So we're talking to sports law expert Marty Eatle,

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Speaker 1: and I guess my big question now is I've got

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Speaker 1: a bunch of baseball drafts coming up in a matter

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Speaker 1: of weeks. Am I just totally now off the radar?

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Speaker 1: Because I don't see any movement in any baseball negotiations Nowhere,

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Speaker 1: no form, no fashion, I was joking earlier before we

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Speaker 1: went on, the only thing that they've agreed to is

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Speaker 1: that we're not gonna wear stirrups, and that's it. And

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Speaker 1: and why do they wait to do this up until

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Speaker 1: the last minute. If I waited three hours before I

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Speaker 1: handed in my homework to do it, I would be

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Speaker 1: in big trouble. Why so, I think the answer here

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Speaker 1: is you have two immovable forces, namely Major League Baseball

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Speaker 1: and the Major League Baseball Players Association, and each is

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Speaker 1: waiting for the other to blink and trying to create

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Speaker 1: pressure to have the other one blink, and so they're

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Speaker 1: playing it down to the wire. I don't have a

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Speaker 1: lot of confidence in pitchers and catchers coming to the

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Speaker 1: training facilities in what is it about ten days? Now?

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Speaker 1: You know, all of course, all of our fantasy football

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Speaker 1: baseball picks are going to go out the window here. Yeah, sorry, Bar,

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Speaker 1: you're talking to the commissioner here in Michael Vaughan's back

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Speaker 1: to NASCAR for me, I mean, it really does sound

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Speaker 1: like a game of Chicken. I wonder, Marty, Um, if

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Speaker 1: with all the gambling, the sports betting that's taking place,

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Speaker 1: does that incentivize the Players Association or MLB to get

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Speaker 1: to the negotiating table faster? Every dollar of revenue ought

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Speaker 1: to incentivize both sides to get to the table faster. Um.

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Speaker 1: I think the as I recall, the lessons of the

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Speaker 1: last couple of lockouts in Major League Baseball was that

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Speaker 1: it took the fans a while to come back to

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Speaker 1: the stadium. Uh, that's complicated by COVID and how many

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Speaker 1: people still feel comfortable going into a stadium even without

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Speaker 1: masking rules or with masking rules. Uh. But if the

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Speaker 1: stadium isn't open, that makes it an easy decision. Well

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Speaker 1: where will fans turn their attention? Are they going to

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Speaker 1: turn it to other sports that take place during the

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Speaker 1: period April through October? I suspect the answer is yes.

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Speaker 1: People have an insatiable desire to consume sports at some level,

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Speaker 1: and if baseball isn't there, they'll find something else. How

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Speaker 1: tough will it be for baseball to make a comeback?

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Speaker 1: It's historically baseball has always made a comeback, but it's

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Speaker 1: taken time, Marty. Last week the Players Association rejected an

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Speaker 1: offer of federal mediation we call. We all know that

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Speaker 1: the Players Association's first word on anything is no. But

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Speaker 1: once we get past that, it does that a sign

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Speaker 1: of perhaps a lack of confidence that they may prevail

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Speaker 1: under federal mediation. They don't think so. Because federal mediation,

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Speaker 1: like any type of mediation, is consensual. That means the

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Speaker 1: parties have to agree to it. A mediator cannot impose terms,

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Speaker 1: can only suggest terms to the parties to adopt. Now

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Speaker 1: that said, the Players Association has not had a long

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Speaker 1: end wanted history in mediation UM and in fact, there

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Speaker 1: were some idea that the last mediation they had did

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Speaker 1: not go as well for the players as the owner said,

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Speaker 1: they were a little reluctant um to engage in that.

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Speaker 1: I read last night that the Secretary of Labor has

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Speaker 1: offered to mediate if the players can't agree on a

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Speaker 1: federal mediation service mediator UM. I didn't see any reaction

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Speaker 1: as of ten three this morning to the Labor Secretary's offer.

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Speaker 1: Marty Eagle, you just shouted all my dreams of trying

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Speaker 1: to draft. It's all over now, man, It's like you

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Speaker 1: know now, I'm going to go back and look at

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Speaker 1: my Willie Horton card. You can lie. The Olympics fire okay,

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Speaker 1: They've been playing with one arm behind their back, and

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Speaker 1: Bob Costa says is the best. I just I feel

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Speaker 1: bad for NBC. I know is anyway, Don't don't mind me.

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Speaker 1: I'm going down a note pad here. Marty Eatle with

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Speaker 1: Gulston and Stores, sports Law practice co chair and Columbia

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Speaker 1: law professor. You are the man and you are always

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Speaker 1: our as sports law expert. Thank you, sir, Thank you

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Speaker 1: so much for having me. It's been a pleasure. This

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Speaker 1: is the Bloomberg Business of Sports podcast. Catch us here

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Speaker 1: each and every Monday, Wednesday and Thursday, exploring the world

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Speaker 1: of money and sports on Michael Blar. Catch me on

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Speaker 1: Twitter at bit Bar Sports. I'm on Twitter at Scarlett

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Speaker 1: Fool and I'm Mike Lynch. You can follow me at

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Speaker 1: Lynch w c PB. You're listening to Bloomberg Business of

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Speaker 1: sports on Bloomberg Radio around the world,