Inherent Conflicts of Interest in the National Football League Management Structure May Render the Rooney Rule Meaningless

Introduction

Recently, the National Football League (NFL) has come under attack for its minority hiring practices at the upper echelon management positions. Lawyers Johnnie L. Cochran, Jr. and Cyrus Mehri have notified the NFL that they will sue unless substantial progress is made by the NFL in the hiring of African-Americans for head coaching positions. The NFL’s response was to enact the Rooney Rule, a league policy requiring each team to interview at least one minority candidate when seeking to fill a head coaching vacancy.

Although the NFL continues to face external opposition to the Rooney Rule which many opponents state is not aggressive enough, its most formidable opposition may be internal, occasioned by the inherent conflicts of interest in the NFL’s own management structure. This article will explore the conflicts of interest inherent in the league’s structure, including the respective roles of the NFL Commissioner and league owners.

Background

The 2003-2004 National Football League season marks the league’s 83rd year since its inception in 1920. While, currently, nearly 70% of all NFL players are African American, only 3 of 32 head coaches are African-American(Simmons, 2003). In fact, the NFL’s track record in the hiring of black coaches throughout its existence has not been much better. When considering the over 400 head coaches hired all-time by the NFL, only 7 have been African-American revealing a grossly inadequate percentage of 1.75%.(Cochran & Mehri, 2002)

As illustrated in the following table, there have only been 6 African-American head coaches in the modern NFL, commencing with Art Shell in 1989. Prior to Shell, the NFL had not hired an African American head coach in sixty-four years.(Cochran & Mehri, 2002)

Table 1

African-American Head Coaches in the NFL

In response to a September 2002 study by Janice Madden, Ph.D., commissioned by attorneys Johnnie L. Cochran, Jr. and Cyrus Mehri titled “Black Coaches in the National Football League: Superior Performance, Inferior Opportunities” and a threatened lawsuit against the NFL for its unfair hiring practices by the two noted attorneys, the NFL’s owners agreed, in principle, in December 2002 to implement a league policy requiring that any team seeking to hire a head coach would have to interview at least one minority candidate.(Farrell, 2003) This new rule became known as the “Rooney Rule”, named after the Pittsburgh Steelers owner Dan Rooney, who serves as chairman of the NFL’s workplace diversity committee.(Lions’ Millen fined $200K for not interviewing minority candidate, 2003). Despite the NFL’s proactive attempt to address its own minority hiring practice problems, the Rooney Rule may never have a meaningful impact due to the inherent conflicts of interest posed by the NFL’s management structure. A “conflict of interest” is defined as a situation when an individual has a conflict between competing duties or between private interests and professional responsibilities. How does an NFL owner who sits on the league’s diversity committee and believes in the Rooney Rule in theory not in practice enforcement of the rule against other owners and himself? How does the NFL Commissioner who is hired by the owners and is accountable to the owners enforce the Rooney Rule against those very same owners?

The NFL Commissioner

In March 1941 the NFL named Elmer Layden its first commissioner. In broad terms, a commissioner’s role is to exercise broad administrative or judicial authority. More specifically, the NFL Commissioner manages the business affairs of the league and is its most visible representative.

The management structure of the NFL reveals the inherent conflicts of interest when considering the juxtaposition of the commissioner and the league’s owners in the context of such structure. While the commissioner is an employee of the owners, he also, in many ways, directs, oversees and otherwise polices the owners in the due course of his role in running the day-to-day operations of the NFL. For example, the commissioner may discipline an owner for violating a standing NFL regulation under the guise of maintaining the sanctity and integrity of the sport. However, this power is anything but unbridled as the owners hire the commissioner, and possess mechanisms to fire him when his decisions are adverse to their interests (Wong, 2002). If a commissioner’s paramount concern is his very own job security, how does he simultaneously do what is in the best interest of the sport in the face of the owners’ divergent interests?

Another glaring conflict of interest which compromises the commissioner’s ability to fairly carry out the duties of his office are the politics involved in pleasing the owners as a collective group. As a result of the varying and sometimes conflicting interests of the owners, in order to be effective, the commissioner must be diplomatic and political in his approach if he wishes to have a successful and lengthy tenure in office (Wong, 2002). How does the commissioner simultaneously, for instance, weigh the interests of owners of big market teams vs. the interests of owners of small market teams? Does he simply side with the more influential owners in name of his own job security, notwithstanding a potentially detrimental impact on the sport?

The commissioner also manages issues involving players. When the players and owners have opposing positions on a particular issue the commissioner’s conflict of interest is pronounced. Fortunately for players, the commissioner’s power over the players is regulated by three main documents: the league’s Basic Agreement, the Uniform Player Contract, and the Collective Bargaining Agreement (Wong, 2002).

Despite the adoption of the three main documents, professional athletes in the big four sports leagues (i.e., NFL, NHL, NBA and MLB) recognized the inherent conflicts of interest in the commissioner acting as arbitrator between players and owners in grievance proceedings. “First, players asserted that the commissioner would not be able to remain impartial if the grievance was against a decision he himself had made. Second, the players claimed that the commissioner of a professional sports league is hired and fired by the owners of that league, and therefore is not an impartial entity but may have a bias toward the owners.”(Wong, 2002) As result, players demanded and were granted a system whereby an independent party would act as final arbitrator.

The Owners

In 1900 William C. Temple took over the team payments for the Duquesne Country and Athletic Club, becoming the first known individual club owner.(NFL.com) Owners in the modern NFL are still individual or private franchise owners. As mentioned previously, the owners hire a commissioner who is charged with operating the league on a day-to-day basis and generally hire an individual they believe will advocate for their own best interest. It is not surprising then, that the current NFL commissioner, Paul Tagliabue, served as the NFL’s principal outside counsel prior to becoming commissioner. (Sportsencyclopedia.com)

The owners establish league policies through a committee structure. Through membership on the various committees (e.g., finance, rules, diversity, etc.), owner’s set policy which, in theory, promotes the sport’s long-term viability, maintains its integrity, sanctity, commercial appeal, etc. Policies approved by the various committees are implemented and enforced by the commissioner. Finally, the owners operate their individual teams all of whom must abide by the policies set by the various committees and enforced by the commissioner.

The NFL’s management structure pertaining to owners as outlined above, also reveals inherent conflicts of interest. The owners hire the commissioner and author policies as committee members that the commissioner must, in turn, enforce against them as individual franchise owners. The owners as a collective group must also be able to place the best interests of the league ahead of their individual interests as franchise owners. How does an owner simultaneously consider conflicts of interest posed by weighing their individual goals against that of the league’s and the sport’s goals as whole?

Conclusion

Due to the NFL’s management structure, which is fraught with inherent conflicts of interest, the commissioner, who is beholden to the owners, is reduced to figure head status when it comes to the enforcement of league policies such as the Rooney Rule. Sure, the commissioner is empowered to levy penalties (e.g., monetary fines, etc.) against teams that violate league policy, but such disciplinary action is discretionary with the interpretation of the letter and spirit of the rule left to the devices of the commissioner on a case-by-case basis.

The conflicts of interest in the NFL’s management structure were, by design, created by the owners to benefit the owners. Therefore, in order for the Rooney Rule or any other policy to have a meaningful impact the owners must embrace it, not only in theory, but also in practice. The commissioner may attempt to cajole the owners into complying with a policy, but it is the owners who must actually take action. Owners must embrace a policy to the point that it becomes embedded as the normal and accepted way that business is conducted, notwithstanding conflicts of interest in management structure. This is the only way a league policy, fair hiring or otherwise, will have a meaningful effect.

Simmons, C. R. (2003, August 11). Cochran and Mehri Take Aim at the NFL. Blackenterprise.com. Retrieved August 11, 2003, from the World Wide Web:
http://www.blackenterprise.com/ExclusivesOpen.asp? Source=Articles/11142002CS.html

Cochran, J. L., & Mehri, C. (2002). Black Coaches in the National Football League: Superior Performance, Inferior Opportunities. Retrieved August 11, 2003, from the World Wide Web:
http://www.findjustice.com/ms/nfl/indextop.html

Farrell, W. C. (2003, August 3). Walsh Network Produces Diversity as Well as Success. The New York Times, Section 8-11

 Lions’ Millen fined $200K for not interviewing minority candidates. (2003, July 25). CBS SportsLine.com. Retrieved July 29, 2003, from the World Wide Web:
http://cbs.sportsline.com/nfl/story/6498949

Wong, G. M. (2002). Essentials of Sports Law (3rd ed.). Connecticut: Praeger, p. 13

NFL History — Chronology 1869-1910. NFL.com. Retrieved August 12, 2003, from the World Wide Web: http://ww2.nfl.com/history/chronology/1869-1910.html

Paul Tagliabue (1989-Present). (2002, August 26). Sportsecyclopedia.com. Retrieved August 13, 2003, from the World Wide Web:
http://www.sportsecyclopedia.com/nfl/comish/tagliabue.html

Author’s Note:

Corey M. Turner, J.D./M.S.W. is an Adjunct Professor of Sports Law and Ethics in the Graduate School of Business at the Metropolitan College of New York and Instructor of Business Law / Corporations at the New York Paralegal School. He is also Principal in The Turner Law Firm, P.C., a New York City Corporate, Entertainment and Securities firm.