DeMaurice Smith proposes alternatives to the Rooney Rule

Roger Goodell won’t laugh after reading DeMaurice Smith’s latest project.

Smith, the outgoing executive director of the NFL Players Association, is a co-author of an article that will appear in the next issue of the Yale Law and Policy Review. The article calls on the NFL to declare the Rooney Rule a failed experiment and repeal it, while taking other specific actions to improve hiring practices for coaches and other high-level employees.

The Summary of the article
makes some blunt but pertinent arguments about the NFL’s unique ability to avoid real consequences for decades of failing to give key positions to qualified minority candidates. This is not a controversial point; Troy Vincent, NFL Executive Vice President of Football Operations admitted it

But there’s still little that can be done to really change it. Smith’s article (co-authored with Carl Lasker, a budding third-year student at Yale Law School) explains that despite significant government benefits (including billions of dollars in tax dollars for stadiums), the league is subject to little government oversight. Without it, change can only be brought about by litigation.

And when lawsuits are filed, the league’s first step is to pursue the lawsuits in their secret, rigged Kangaroo Court, which: (1) is more likely to result in a positive outcome for the team/league; and (2) keep secret all evidence of wrongdoing.

“The NFL has no shareholder or consumer responsibilities,” write Smith and Lasker. “There is no public board of directors, there are no public compliance or audit reports, there are virtually no federal or state public disclosures required, and there is no government oversight.” All of this should come as a surprise – and deeply disturbing – given that that the NFL and its member teams have enjoyed tax benefits, special antitrust treatment, stadium financing and other publicly granted benefits for generations.”

There is another way to force change. Smith and Lasker mention the possibility of “aggressive concerted action by NFL players.” That sounds great in theory, but if players aren’t making sacrifices for their own interests, it’s hard to imagine them doing it for the interests of non-gamers.

The article makes concrete suggestions. First, admit that the Rooney Rule doesn’t work and give it up. Second, adopt a “consistent, fair, transparent and lawful system” for hiring and retention. Third, all rules obliging coaches to seek permission from the owners of their current teams to apply for positions at other teams must be abolished. Fourth, appoint an outside observer to review the hiring processes and publish an annual report on the progress or non-performance of those processes.

Fifth, develop league-wide job descriptions with objective guidelines for each key position—coach, GM, president, or CEO. Sixth, introduce strict punishment procedures for teams that don’t comply, with large fines for each offence. Seventh: Use uniform and consistent evaluation guidelines. Eighth: Develop rules to limit nepotism.

Ninth: All important positions must be advertised and kept open for 30 days. Tenth, do your best to help trainers gain experience. Eleven: Pre-screen interested candidates on a league-wide basis, making it harder for teams to simply ignore clearly qualified applicants. Twelfth: Adopt the concept of unionizing coaches.

The latter will never happen. While it’s not impossible for coaches to form a union, the NFL will never welcome it. The NFL has no reason to. Especially when arbitration clauses are already included in the coaching contracts, preventing independent dispute resolution and empowering the commissioner to judge whether one of his employers has broken the law.

Unfortunately, the NFL is unlikely to rush any of these proposed changes until it needs to. Nor will it be until a competent government agency — or a massive verdict in public court — forces the kind of dramatic and sweeping changes that are long overdue.

Hopefully, efforts like Smith and Lasker’s article will provide impetus to someone with the power and will to use them to force meaningful changes in the NFL’s hiring practices for coaches, general managers and other key executives.

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