Texans Hiring Lovie Smith Could Form Basis of Retaliation Lawsuit by Brian Flores

This week, the expectation from the Houston Texans, based on widespread media reports was that the team was down to two candidates for its Head Coach vacancy. Brian Flores, the former Dolphins Coach who brought an explosive lawsuit against the League and various teams alleging racial discrimination in hiring was one of those frontrunners. His competition was Josh McCown, whose lack of professional coaching experience made him an unlikely winner. If McCown had edged out Flores it would have only added fuel to his lawsuit, and one more bit of purported proof that the NFL refuses to hire and retain a sufficient number of black coaches despite a rule, called the Rooney Rule that has been in effect for twenty years to accomplish diversity in coaching and management roles.

Flores, according to many, would be the shoe in to become the Head Coach of the Texans. But what about his recently filed lawsuit? How would that interrupt the ebb and flow of the hiring process? What implications could he or the team face if he were to be hired?

Flores took a direct jab at the Texans in his lawsuit, despite being considered for the big role. In his complaint he mentioned the unfairness of David Culley, being fired after just one year as the Texans Head Coach for “philosophical differences,” implying it was a sham excuse. According to Flores, other less qualified white coaches were frequently given extensions and second chances in the league after losing seasons. Culley, according to many, faced an impossible situation when the Texans were plagued by the Deshaun Watson controversy and nearly twenty two claims alleging various forms of sexual assault and harassment. The quarterback would not play for the remainder of the season.

On the one hand, if the Texans hired Flores, it would undermine his claims of discrimination in hiring, at least on the surface. It would mark two black head coach hires back to back for the organization. Both Culley and Flores are extremely qualified candidates. Similarly, if he were offered the job, Flores would be pressured to take it because his entire suit rests on the idea of promoting minority candidates to prominent positions in the League. At the same time, he would be going to work for an organization that he accused of racially discriminatory practices in its handling of its former coach’s employment.

On the other hand, working for an owner you are suing could also pose an uncomfortable situation. But alas, another twist surfaced today when suddenly out of nowhere, Lovie Smith was announced as finalizing a deal with the Texans to become the next Head Coach. Seemingly, Lovie Smith, the team’s Defensive Coordinator, came out of nowhere in the final hour to get the job. To many, it seems a bit suspect that a process was in place that narrowed down candidates to finalists and then a third person comes in out of nowhere to edge out Brian Flores, the guy who is suing the NFL for discrimination in hiring. Lovie is taking a job that otherwise may have gone to Flores. McCown, with his complete lack of coaching experience was not considered the favorite and his hiring as a less experienced, white male, would have really fanned the flames of the class action suit brought by Flores. It would’ve reinforced the idea that less qualified white coaches are taking jobs from more qualified black ones. Lovie Smith is someone already working within the organization so it’s not entirely unexplainable. In fact, maybe the Texans have evidence that discussions with Lovie were taking place for a while and it just never was leaked to the media.

But this hiring of Lovie Smith, while it may help the team claim that it is hiring qualified black candidates, it could create another problem altogether. Retaliation. Brian Flores’ camp is most definitely exploring the possibility of a retaliation suit to claim Flores lost that Texans job because he filed the lawsuit. This provides another example of conduct that could bolster his original case. It’s entirely reasonable to think that Flores’ legal team will want to conduct discovery and access the inner workings of the hiring process to find out exactly why Flores did not get the job. The circumstances are all too suspect, not to. It’s not that Lovie doesn’t deserve it or isn’t a better fit than Flores. Maybe he is, maybe he isn’t. It’s about the fact that the process was almost complete and when the two finalists were narrowed down and Flores was the obvious choice, another person was suddenly hired in the wake of Flores filing the suit. This circumstance could actually help Flores’ case, if he is able to ascertain discovery that shows his lawsuit had a chilling effect on Texans brass.

We shall see whether Flores takes this recent development, and yet another loss, lying down. It seems from his first, extremely ambitious and wide reaching lawsuit, that it’s unlikely.

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