By Joseph M. Hanna and Joohong Park
“Change” and “diversity” are two words which have gained prominence in mainstream America’s vernacular since the recent election of our nation’s first African American president. Unfortunately, collegiate and professional athletics, arenas very often viewed as trailblazers in the field of diversity, still face many issues related to the hiring and retention of minority coaches. 1
The disproportionate representation of minority head coaches is most evident in college football. For instance, among the 119 NCAA Football programs, there are only four African American coaches. 2 A recent example of a collegiate coaching hire that evokes talk of discrimination is the hiring of Gene Chizik as the head coach of football at Auburn University. 3 What was notable in the hiring of Chizik, who had previously compiled a losing record of 5-19 for two seasons at Iowa State, 4 was the fact that a highly qualified African American candidate, Turner Gill, was also interviewed for the position but did not receive an offer. Gill took over as head coach at the University at Buffalo three years ago and succeeded in turning around one of the country’s worst football programs by guiding Buffalo to a winning record, its first Mid-American Conference championship and its first bowl bid in 50 years. 5
Auburn’s passing over of Gill evoked an emotional response in some quarters. NBA Hall of Famer Charles Barkley, a notable Auburn alumnus, has been quoted as stating that “I think race was the No. 1 factor… You can say it’s not about race, but you can’t compare the two résumés and say [Chizik] deserved the job. Out of all the coaches they interviewed, Chizik probably had the worst résumé.” 6 Barkley also stated that “I told him you can’t not take the job because of racism. [Turner] was worried about being nothing more than a token interview. [Turner] was concerned about having a white wife. It’s just very disappointing to me.” 7
The Auburn controversy has focused a spotlight on the issue of minority hiring within collegiate sports. Now, the choice is up to the NCAA whether it will choose to remedy this situation on its own prerogative or whether it will be forced to do so by the courts.
Self Regulation/Non Litigious Means
Collegiate and professional sports have often mirrored each other both on and off the field. For example, NCAA Division I-A football and the NFL often adopt the ideas, policies and on-field rules of each other’s respective organizations. Instant Replay is one example of an on-field policy that was initially adopted by the NFL (in 1986 8 and fully implemented in 1999 9 ) that the NCAA then also adopted later (in 2006). 10
One rule which has not been implemented by the NCAA, but which exists in the NFL, is the “Rooney Rule,” enacted in 2002. 11 The “Rooney Rule” was named after the owner of the Pittsburgh Steelers, Dan Rooney, who chaired the NFL Committee on Workplace Diversity and helped formulate a policy that any NFL club seeking to hire a head coach must interview one or more minority applicants for the vacant position. 12 The fact that today, approximately one-fourth of all NFL teams have minority head coaches 13 can arguably be attributed directly to the NFL’s implementation of the “Rooney Rule.” Conversely, in collegiate athletics, which lacks a functional counterpart to the “Rooney Rule,” approximately only four percent of NCAA football programs have African American coaches. 14
As a result of the apparent disparity in minority hiring between the NCAA and NFL, it has been argued that the NCAA should also adopt its own version of the “Rooney Rule.” Furthermore, if the NCAA or its member institutions could not be persuaded to enact such a rule on their own accord, litigation through Title VII has been discussed as an avenue of implementing such a policy change. 15 It must be noted that the NCAA has stated publicly it does not believe it can implement a collegiate version of the “Rooney Rule” because even though it is a governing body, it cannot instruct its members how to hire. 16 At a hearing before the House Subcommittee on Commerce, Trade and Consumer Protection in 2007, President of the NCAA Myles Brand stated that “[j]ust as no central authority dictates to American higher education who among all educators and administrators they ought to interview or hire, the colleges and universities will not cede to the NCAA the authority to dictate who to interview or hire in athletics. This is not a challenge that can be managed through Association action in the same way we have done with academic reform. The universities and colleges retain their autonomy and authority in the case of hiring and in the case of expenditures, and they will not cede it to the NCAA or any other national organization.” 17
When specifically asked about the implementation of a “Rooney Rule,” Brand stated that he believed “[s]uch a rule will not work for higher education as a whole, nor can a specific sport be singled out to operate apart from the institution.” 18 More tellingly, Brand indicated that he believes such a rule is not necessary. 19 Although Brand cited his work with the Black Coaches Association (“BCA”) in helping the BCA design the Minority Hiring Report Card that grades and publicizes the results of interview and hiring efforts in Division I, 20 it is clear that little progress has been made to date.
Directly suing a university may not only bring more attention to the issue of minority hiring than just the Minority Hiring Report Card, but may also spur the NCAA or its member universities to enact its own type of “Rooney Rule” in order to avoid both negative publicity and further litigation.
Accelerating Minority Hiring Through Litigation
Title VII Litigation
Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. 21 Specifically, Title VII states:
(a) Employer practices
It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 22
If an organization wanted to initiate a lawsuit on behalf of minority coaches against an institution based upon a violation of Title VII, a number of requirements must first be met. The organization would have to: (1) establish that it has standing to bring a lawsuit on behalf of the coach (“plaintiff”); 23 (2) if applicable, achieve certification as “class”; (3) establish that plaintiff is a member of a protected group/class; (4) prove that plaintiff was qualified for the position; (5) demonstrate that plaintiff suffered an adverse employment action; and (6) prove that the adverse employment action occurred under circumstances that give rise to an inference of discrimination. 24
In the context of federal court litigation, “standing” is the basic legal requirement that determines whether an individual or class of individuals is a “proper party to request an adjudication of a particular issue.” 25 Specifically, the courts have stated that to establish standing, a party must prove “(1) that the plaintiffs have suffered an injury in fact- an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of- the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” 26
Courts have held that “[o]nly someone who claims he has been, or is likely to be, harmed by [an] ongoing discriminatory practice has an adequate stake in the litigation to satisfy the “case or controversy” requirement of Article III.” 27 “If [a] named plaintiff lacks standing to sue, he cannot prosecute the pattern or practice claim, and unless an employee who has been, or is likely to be, harmed by the discriminatory practice is substituted as the named plaintiff, the claim fails.” 28
If an organization wanted to bring a lawsuit on behalf of minority coaches who were denied interview opportunities or otherwise denied coaching positions, it would also have to seek class certification. In order to establish a “class” of litigants, the law requires that there exist numerosity, commonality, typicality, and that adequacy are satisfied so that relief is appropriate for the class as a whole. 29 A class of minority coaches could fulfill the requirement for class certification, since there are a number of qualified minority coaching candidates and the basis of their claim could fall under the rubric of discrimination and Title VII. However, the difficulty would be in establishing a class of minority coaches that faced commonality of circumstances with regard to the alleged hiring practices of a university.
The next set of elements: (1) that the plaintiff is a member of a protected class; (2) that plaintiff was qualified for the position; and (3) that plaintiff suffered an adverse employment action would not be difficult to establish. First, race is a protected class. Therefore, an African American coach who was denied a head coaching position will fall under the definition of a protected class. 30 Second, a minority coach can often cite his prior coaching experience to prove that he was qualified for the head coaching position at issue. Finally, failing to be hired will suffice as an “adverse employment action.”
The thorniest issue to be resolved for both educational institutions and any coach who believes that he was discriminated against is the issue of proving such discrimination. In a Title VII action, the plaintiff has the burden of establishing the case of racial discrimination. 31
The Supreme Court has cited two methods of analysis under a Title VII lawsuit: (1) the pre-text analysis 32 and (2) the mixed motive method. 33 Under a pre-text analysis, plaintiff carries the initial burden of establishing a prima facie case of racial discrimination. In McDonnell Douglas Corp. v. Green, the Supreme Court set forth a model for resolving claims of intentional discrimination where there is no direct evidence of discriminatory intent. The Court stated that plaintiff could establish a prima facie case of racial discrimination by “showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 34
The Court added that “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” 35 Plaintiff must then establish that the reason offered by the employer was merely a “pretext” for an employer’s discriminatory hiring practices. 36
According to the Court, one method of establishing that an employer’s reason was merely pretext for its racially discriminatory decision would be to establish that “whites engaging in similar illegal activity were retained or hired by petitioner.” 37 The Court also added that other relevant evidence in establishing pretext could include facts that an employer had followed a discriminatory policy toward minority employees. Finally, the Court stated that “statistics as to [an employer’s] employment policy and practice may be helpful to a determination of whether [an employer’s] refusal to rehire [plaintiff] in this case conformed to a general pattern of discrimination against blacks.” 38
“Under the mixed-motive method, a plaintiff must present sufficient evidence, direct or circumstantial, that, despite the existence of legitimate, non-discriminatory reasons for the adverse employment action, an illegal factor (i.e., race) was a motivating factor in that decision.” 39 A party does not have to establish that race was the only motivating factor, only that race did play a motivating part. 40 In addition, the racial bias must originate from a decision maker and race must have had a role in the employer’s decision making process and a determinative influence on the hiring decision. 41 However, it must be noted that standing alone, a deviation from an institution’s policy does not establish discriminatory intent. 42
Conclusion
When all of the legal tests and factors are viewed together, it becomes clear that the burden for a party or individual attempting to bring litigation against the NCAA or an educational institution regarding the disparity in minority coaching hires is steep and a potential plaintiff faces significant evidentiary challenges. An organization would have to find a minority coach that was clearly discriminated against by an educational institution and then attempt to find some direct or circumstantial evidence of discriminatory intent. In addition, statistical imbalances, although very real and prevalent, may not prove to be decisive in proving a case of minority hiring discrimination.
Unlike professional sports leagues such as the NFL, the government could not force the NCAA to pass regulations by threatening to withdraw an entity’s anti-trust exemption. Additionally, the NCAA does not even have the authority to tell its members how they should hire. However, similar to the NFL, the threat of litigation and the related negative publicity could spur universities to self regulate by instituting their own version of the “Rooney Rule.”
Joseph M. Hanna is a partner with the firm Goldberg Segalla LLP in its Buffalo office. Mr. Hanna concentrates his practice on commercial litigation with a focus on construction law and sports and entertainment law. He can be reached at jhanna@goldbergsegalla.com
Joohong Park is an associate at the same firm and concentrates his practice on commercial and civil litigation, E-discovery and legal hold issues. He can be reached at jpark@goldbergsegalla.com
1. http://sports.espn.go.com/ncf/news/story?id=3780386
2. http://sports.espn.go.com/ncf/news/story?id=3770769
3. http://auburntigers.cstv.com/sports/m-footbl/spec-rel/121308aab.html
4. http://sports.espn.go.com/ncf/news/story?id=3770769
5. http://sports.espn.go.com/ncf/news/story?id=3770769
6. http://sports.espn.go.com/ncf/news/story?id=3770769
7. http://sports.espn.go.com/ncf/news/story?id=3770769
8. http://www.nfl.com/history/chronology/1981-1990
9. http://www.nfl.com/history/chronology/1991-2000
10. http://www.ncaa.org/wps/ncaa?ContentID=4802
11. https://www.nfl.info/nflmedia/News/2002News/NFLDiversityProgram.htm
12. https://www.nfl.info/nflmedia/News/2002News/NFLDiversityProgram.htm
13. http://sports.espn.go.com/ncf/news/story?id=3780386
14. http://sports.espn.go.com/ncf/news/story?id=3780386
15. http://sports.espn.go.com/ncf/news/story?id=3780386
16. Id.
17. http://www.ncaa.org/wps/ncaa?ContentID=3303
18. http://www.ncaa.org/wps/ncaa?ContentID=3303
19. Id.
20. http://www.ncaa.org/wps/ncaa?ContentID=3303
21. http://www.eeoc.gov/policy/vii.html
22. 42 U.S.C.A. § 2000e-2
23. Bennett v. Spear, 520 U.S. 154 (1997); Murray v. U.S. Bank Trust Nat. Ass’n , 365 F.3d 1284 (11th Cir. 2004). See also Hall v. Alabama Ass’n of School Boards, 326 F.3d 1157 (11th Cir. 2003) and Cotter v. City of Boston, 323 F.3d 160 (1st Cir. 2003).
24. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
25. Flast v. Cohen, 392 U.S. 83 (1968) states “The ‘gist of the question of standing’ is whether the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’” citing Baker v. Carr, 369 U.S. 186 (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.
26. Bennett v. Spear, 520 U.S. 154, 167 (1997) citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
27. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 965 citing Flast v. Cohen, 392 U.S. 83, 99-101 (1968) (internal citation omitted).
28. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955 (11th Cir. 2008).
29. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, FN 20 955 (11th Cir. 2008); and Fed.R.Civ.P. 23(a) which states that “One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.”
30. Johnson v. St. Luke’s Hosp., 2007 WL 3119845 (E.D.Pa..Oct. 23, 2007). See Generally Title VII.
31. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
32. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Ward v. City of North Myrtle Beach, 457 F.Supp.2d 625 (D.S.C. 2006).
33. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); See Also Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277 (4th Cir. 2004).
34. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973)
35. Id.
36. Id.
37. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) citing Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co.
38. Id.
39. Ward v. City of North Myrtle Beach, 457 F.Supp.2d 625 (D.S.C. 2006) citing Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277 (4th Cir. 2004) and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
40. Id.
41. See generally Ward v. City of North Myrtle Beach, 457 F.Supp.2d 625 (D.S.C. 2006) citing Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277 (4th Cir. 2004).
42. Mitchell v. USBI Co., 186 F.3d 1352, 1355-56 (11th Cir. 1999)
