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Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.

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Speaker 1: We need change, We need change. UM. I know many

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Speaker 1: very capable UM black coaches. UM. Some of my staff

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Speaker 1: who I know, UM, if given an opportunity, I when't

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Speaker 1: given an opportunity going to go and do a great

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Speaker 1: job on their interview, UM. And I would just hate

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Speaker 1: for that, uh to be a to be a waste.

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Speaker 1: And I think, you know, we need to change the

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Speaker 1: hearts and minds of of the people making those decisions. Change.

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Speaker 1: That's why former Miami Dolphins head coach Brian Flores sued

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Speaker 1: the NFL for pervasive racial bias. In an interview with ESPN,

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Speaker 1: Flores laid out his allegations about racist hiring practices and

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Speaker 1: sham interviews under the Rooney Rule, which requires teams to

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Speaker 1: interview at least two minority candidates for positions like head coach.

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Speaker 1: I was upset that I wasn't getting a true opportunity

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Speaker 1: UM to show what I can do, to show what

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Speaker 1: I can bring to a team, UM, which I feel

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Speaker 1: is a lot. Though the NFL, the Dolphins, Broncos, and

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Speaker 1: Giants have denied Flora's as accusations. NFL Commissioner Roger Goodell admitted,

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Speaker 1: the league has fallen short in getting more diversity at

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Speaker 1: the head coaching position, and that is something that is

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Speaker 1: something we really had focused on to try to get

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Speaker 1: the kind of results that we would expect, and we

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Speaker 1: fell short of that by a long shot. Joining me

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Speaker 1: to discuss the challenges the lawsuit faces is sports attorney

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Speaker 1: Martinie Dell of Goolston and Stores. Marty tell us a

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Speaker 1: little about the complaint and whether there were any surprises

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Speaker 1: in Flores' allegations. So what Mr Flores has done in

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Speaker 1: his complaint is try to paint a picture of systemic

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Speaker 1: racism within the NFL, going back to its founding in

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Speaker 1: the nineteen twenties and then bringing it up to the

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Speaker 1: present time. The most important allegations for this case are

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Speaker 1: really what happens after the Rooney Rule has been adopted

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Speaker 1: by the NFL, which was two thousand three, and more

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Speaker 1: particularly the allegations concerning the failure to hire him and

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Speaker 1: what he calls sham interviews which took place arounding his hiring.

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Speaker 1: He doesn't seem to allege anything that isn't out in

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Speaker 1: the public field at this point. It always comes as

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Speaker 1: a shock to a defendant to be accused of being

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Speaker 1: a racist. So in that sense, probably it is somewhat

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Speaker 1: shocking to the defendants in this case. But there's nothing

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Speaker 1: particularly new here. It just is a reasonable way of

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Speaker 1: pulling together what has happened over the last couple of years. Particularly,

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Speaker 1: But as Mr Flora's alleges going back now almost a

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Speaker 1: hundred years, and he brought this as a class action

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Speaker 1: so far, he's the only plaintiff. Class action means he

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Speaker 1: has to clear some high legal hurdles. Why do you

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Speaker 1: think he brought it as a class action instead of individually.

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Speaker 1: I think what he has done here is he has

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Speaker 1: tried to vindicate every African American person in his class,

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Speaker 1: which he has named to be head coaches, offensive coordinators,

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Speaker 1: defensive coordinators, quarterback coordinators, and general managers. Procedurally, that will,

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Speaker 1: as you suggested, create a nightmare scenario for him in

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Speaker 1: his lawsuit, for among other reasons, because now he has

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Speaker 1: this whole class, there's going to be special discovery on

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Speaker 1: the class before you even get to what we call

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Speaker 1: discovery on the merits, or what his actual allegations are

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Speaker 1: and whether he can prove them those class allegations will

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Speaker 1: likely take some period of time, be it six months,

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Speaker 1: a year, or a year and a half to take

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Speaker 1: discovery and then adjudicate before we even get to the

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Speaker 1: next procedural hurdle hill face, which is a motion to

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Speaker 1: dismiss by one or more of the defendants. So we're

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Speaker 1: talking about a period of upwards of the year, maybe

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Speaker 1: upwards of two years, assuming he survives those procedural hurdles,

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Speaker 1: before Mr Flores will be able to take any type

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Speaker 1: of discovery on the merits. We heard from the NFL

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Speaker 1: Commissioner Roger Goodell, and he admitted that the league fell

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Speaker 1: short by a lot in increasing the number of black

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Speaker 1: and minority coaches. Is that an admission that can help

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Speaker 1: Floraes in his lawsuit? So I think the answer is

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Speaker 1: a qualified yes. It certainly is a statement by someone

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Speaker 1: in power that the league should be able to achieve

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Speaker 1: greater hiring of African Americans in the different positions. That said,

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Speaker 1: the league cannot mandate the hiring of a head coach

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Speaker 1: by a particular team. It could provide the guardrails, and

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Speaker 1: in this case that's the Rooney rule. It can lean

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Speaker 1: on teams or leverage the league's position to make sure

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Speaker 1: that the teams are not just engaging in I guess

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Speaker 1: with Mr Flora's gold sham interviews that these are meaningful interviews,

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Speaker 1: But I'm not sure what else the NFL should be

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Speaker 1: doing in this sense to assist African American candidates for

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Speaker 1: these positions, which are unique to each team. Explain how

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Speaker 1: is allegations of sham interviews fit into his complaint. The

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Speaker 1: Rooney Rule requires right now, teams to interview at least

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Speaker 1: two minority candidates for any head coaching position. If all

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Speaker 1: a team does is say, Okay, I've already picked my candidate,

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Speaker 1: but because of the Rooney Rule, I have to interview

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Speaker 1: to minority candidates and then proceeds to interview them having

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Speaker 1: no intent or interest in hiring them. That is what Mr.

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Speaker 1: Flora's alleges happened to him, and is a sham interview

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Speaker 1: that would tend to show more of a disc inventory

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Speaker 1: animus in the sense that they didn't have any interest

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Speaker 1: in hiring someone of color for the position. He also

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Speaker 1: alleges that the Dolphins owner tried to get him to

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Speaker 1: tank the season to get a high draft pick. I'm

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Speaker 1: wondering if that actually cuts against him, because it might

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Speaker 1: that be a reason that he was fired because he

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Speaker 1: didn't do that. So yes, it could cut against him.

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Speaker 1: But more importantly, what I'm scratching my head about is

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Speaker 1: why that's even in the lawsuit. It doesn't show racial

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Speaker 1: animus or but for race as a criterion of hiring

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Speaker 1: or in this case, firing, and it seems to be

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Speaker 1: thrown out there just to create a bad public relations

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Speaker 1: situation for the NFL. Why Because tanking is illegal, it's

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Speaker 1: a form of gambling, it's outlawed in many states. If true,

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Speaker 1: it would create a situation for the Dolphins and for

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Speaker 1: the NFL that could result in a criminal investigation, but

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Speaker 1: that's not a racial investigation. What I'd like you to

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Speaker 1: explain is what you have to prove to prove racial

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Speaker 1: animus the butt for Okay, So first, the plaintiff in

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Speaker 1: this case, Mr. Flores, has to allege and prove that

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Speaker 1: a negative or adverse employment action was taken against him

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Speaker 1: because of his race, and that he suffered damages as

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Speaker 1: a result of that once he can show them, and

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Speaker 1: that's not a terribly high burden to prove. The burden

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Speaker 1: then shifts to the defendants to show that there was

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Speaker 1: a reason for their actions, a non discriminatory reason for

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Speaker 1: their actions if they can meet that burden again not

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Speaker 1: a terribly difficult or high burden. The burden shift back

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Speaker 1: to Mr Flores to show that the reason given by

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Speaker 1: the defendant or defendants was pretext Well, that is, it

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Speaker 1: just simply wasn't the case and race was the case.

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Speaker 1: But he can't go back simply to saying I was

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Speaker 1: fired it was because of my race. He has to

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Speaker 1: show why the reasons offered by the defendants were pretextual.

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Speaker 1: In your opinion, how much does this suit jeopardize the

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Speaker 1: NFL and its legacy and how much is it you

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Speaker 1: headlines today and forgotten tomorrow. H great question. It certainly

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Speaker 1: is headlines today. Will it be forgotten in six months

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Speaker 1: depends how a lawsuit drags along, and it's likely to

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Speaker 1: be forgotten until there's the next big decision in the

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Speaker 1: lawsuit itself. Unless Mr Flora's can keep a constant media

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Speaker 1: pressure on the NFL. What it ought to have is

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Speaker 1: it ought to create just the type of introspection which

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Speaker 1: Commissioner Goodell opined about saying, you know, we haven't done

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Speaker 1: our job as well as we can, and lead to

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Speaker 1: the formation and of at least some committees to investigate

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Speaker 1: how the NFL could do better. You have a league

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Speaker 1: with I think it's fifty seven and a half percent

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Speaker 1: of its players or African American, and right now it

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Speaker 1: has two head coaches who are African American. That's not

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Speaker 1: a good percentage, especially because I think is pretty clear

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Speaker 1: by this point there are many qualified candidates who are

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Speaker 1: African American and are not getting jobs. With the last

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Speaker 1: of the available NFL head coaching positions now filled, Flora's

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Speaker 1: will not be coaching next season, and some are saying

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Speaker 1: that he'll never coach again in the NFL because he

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Speaker 1: filed this lawsuit. My view is at some point somebody

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Speaker 1: will realize that Mr. Flora Is is a very good coach,

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Speaker 1: He's had a good record as a coach, and they

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Speaker 1: may want to hire him in the future. That may

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Speaker 1: be more idealistic the inaccurate and cutting against that, it's

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Speaker 1: people often don't like to hire somebody who's suing them

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Speaker 1: because you don't know if that person has a greater

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Speaker 1: proclivity to suing them again if they don't like what happens.

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Speaker 1: Head coaches, as we know, are basically hired to be

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Speaker 1: fired they'll survive as long as they have a winning

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Speaker 1: record where they make the playoffs, but once that changes,

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Speaker 1: the ownership will probably look elsewhere. So I think idealistically

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Speaker 1: I'd like to leave. He could be hired, but you

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Speaker 1: know the situation. If you want to take an example

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Speaker 1: with Colin Kaepernick. Here was a good quarterback. He decided

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Speaker 1: to take the knee as a protest. He was thrown

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Speaker 1: out as a quarterback and the result was he has

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Speaker 1: not been able to be hired again in the NFL.

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Speaker 1: And it's not because of his skill level, because he

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Speaker 1: couldn't even get a skill interview. Thanks for being on

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Speaker 1: the show, Marty. That's Martini Dell of Gulston and Stores.

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Speaker 1: Mr Michael. The court sentences you as follows. That is

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Speaker 1: Life plus twenty. Travis Nickmichael, his father Gregory, and their

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Speaker 1: neighbor William Roddy Bryan were all sentenced to life in

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Speaker 1: prison after being convicted in a Georgia state court of

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Speaker 1: chasing down and murdering a mod Arebury, a black man

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Speaker 1: who was jogging in their neighborhood. Here's Judge Timothy Walmsley.

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Speaker 1: As we all now know, based upon the verdict that

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Speaker 1: was rendered in this court in November a mod Aubrey

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Speaker 1: was murdered. It's a tragedy, but it's not the final

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Speaker 1: verdict for the three men. They're now being tried a

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Speaker 1: second time in federal court for hate crimes, where prosecutors

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Speaker 1: will try to prove that the white men targeted Arebury

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Speaker 1: because he was black. My guest is Janine Bell, a

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Speaker 1: professor of law at Indiana University. Let's start with the

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Speaker 1: big question, what is the point of a hate crimes

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Speaker 1: trial when these men are going to spend the rest

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Speaker 1: of their lives in prison. The point of a hate

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Speaker 1: crime trial in such circumstances is to show anyone else

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Speaker 1: who might commit such acts of violence or similar acts

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Speaker 1: of violence in the future, that the United States government

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Speaker 1: is going to punish you. It's a deterrence effect. And

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Speaker 1: given the number of hate crimes last year and the

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Speaker 1: significant increase in the number of hate crimes reported to

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Speaker 1: the FBI by police departments across the country, there's a

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Speaker 1: real need for deterrence in this area. So largely a

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Speaker 1: deterrence factor. There's also and this is a secondary factor,

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Speaker 1: and acknowledgement to the family that this behavior was raised

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Speaker 1: based and you didn't have that with the ordinary criminal charges.

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Speaker 1: There was a deal in place, and it would have

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Speaker 1: avoided the trial. Of course, required them Michaels, to admit

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Speaker 1: to racist motives and forfeit their right to appeal their

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Speaker 1: federal sentence. It seemed like a good deal for the system.

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Speaker 1: Why did the judge reject their plea agreement with the prosecutors.

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Speaker 1: News reports suggest that the judge rejected the plea deal

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Speaker 1: because the family had a problem with these perpetrators going

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Speaker 1: to federal prison as opposed to state prison, and that

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Speaker 1: recognizes the pain of the family and the fact that

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Speaker 1: this was a racially violent crime, and that the perpetrators

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Speaker 1: should do hard time in state prison. That's an awful

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Speaker 1: comment on the system. If it makes that much of

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Speaker 1: a difference whether you're in state prison or federal prison,

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Speaker 1: it is, It absolutely is. In the state's case against

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Speaker 1: the man, the key piece of evidence was a video

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Speaker 1: showing them chasing are Very through their neighborhood. Will that

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Speaker 1: be a key piece of evidence do you think in

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Speaker 1: the federal trial as well, and the hate crimes trial

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Speaker 1: it will if the government's theory it's predicated on the

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Speaker 1: ways in which this sort of violence has worked in

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Speaker 1: the past. In the past, racist crimes have occurred in

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Speaker 1: white neighborhoods because individuals who lived in those neighborhoods rejected

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Speaker 1: the idea that African Americans should purchase houses or spend

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Speaker 1: any time in the neighborhoods. So if that's part of

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Speaker 1: the government theory of the case, that this is a

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Speaker 1: time worn reaction to African Americans in white neighborhoods, then

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Speaker 1: the video will be quite important to that. The jury

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Speaker 1: is being selected for the trial, and several potential jurors

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Speaker 1: have said they believe problems with racism in America are exaggerated,

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Speaker 1: and they've questioned whether there should be special charges or

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Speaker 1: punishments for crimes motivated by race. Does that surprise you,

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Speaker 1: It doesn't surprise me. I wonder about the jury pool.

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Speaker 1: I wonder about whether there has been a change in

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Speaker 1: support for hate crime legislation, because surveys dating back to

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Speaker 1: the nineteen eighties on hate crime legislation suggests that Americans

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Speaker 1: are in favor of hate crime legislation. Americans believe that

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Speaker 1: racially motivated crimes are against American ideals, contrary to what

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Speaker 1: this country stands for. So individual jurors who say, you know,

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Speaker 1: we shouldn't have these sorts of trials. Makes me really

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Speaker 1: wonder about the jury pool. It makes me wonder about

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Speaker 1: how the jurors are being questioned on this, whether appropriate

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Speaker 1: education is given to them with respect to the fact

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Speaker 1: that hate crimes are race neutral, meaning anyone can be

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Speaker 1: a victim of a hate crime, and lots of people

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Speaker 1: of different backgrounds are victimized by hate crimes, and law

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Speaker 1: enforcement knows this and recognizes it. And if we really

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Speaker 1: want to stop this sort of violence from happening, we

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Speaker 1: need to go after the perpetrators that we found, because

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Speaker 1: in the vast majority of hate crime cases, we don't

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Speaker 1: ever find a perpetrator, even serious cases. They're very hard

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Speaker 1: to investigate. So we need to broadcast that this sort

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Speaker 1: of violin is un American and we won't tolerate it,

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Speaker 1: and we'll go after perpetrators. Thanks Janine. That's Janine Bell

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Speaker 1: of Indiana University, and that's it for this edition of

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Speaker 1: the Bloomberg Law Show. Remember you can always get the

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Speaker 1: latest legal news on our Bloomberg Law Podcast. You'll find

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Speaker 1: them wherever you get your favorite podcasts. Thanks so much

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Speaker 1: for listening, and please tune into the Bloomberg Last Show

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Speaker 1: every week night at ten pm Wall Street Time. I'm

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Speaker 1: June Grosso and you're listening to Bloomberg m