Opinion: Odds Are Super Bowl Won’t Make Brian Flores Story Go Away For NFL

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The week before the Super Bowl, former Miami Dolphins coach Brian Flores filed a lawsuit against the NFL and three of its teams.

Flores’ suit makes clear that despite the Rooney Rule, the NFL has failed to create an equitable system. The class-action lawsuit alleges discrimination under Section 1981 of the Civil Rights Act of 1866, violations of New York state anti-discrimination law, and violations of New Jersey anti-discrimination law.

Flores makes some alarming allegations in the complaint, including that he has been the victim of discrimination because of his race during his time in the NFL. In fact, the lawsuit starts with a quote (not something you see often) purportedly from Bill Belichick informing Flores that the New York Giants had already made a hiring decision three days before Flores was scheduled to interview for the open head coaching job.

But the complaint makes an additional allegation that could have serious consequences in the US sports betting world. At the very least, it will cause significant headaches for the league on the eve of the Super Bowl. In paragraphs 14 and 133 of the complaint, Flores alleges that Miami Dolphins owner Stephen Ross offered him $100,000 for every game he lost during the 2019 season.

Ross also owns a multimillion-dollar stake in The Action Network, a sports betting affiliate site sold last year in a $240 million transaction.

What was allegedly said to Brian Flores?

The complaint states:

The Dolphins owner, Stephen Ross, was unhappy with this performance not because it was under-performing. To the contrary, Mr. Ross wanted the Mr. Flores to “tank” the season to put the team in position to secure the first pick in the draft. Indeed, during the 2019 season, Mr. Ross told Mr. Flores that he would pay him $100,000 for each game lost that year.

Then, when the Dolphins started winning games, due in no small part to Mr. Flores’ coaching, Mr. Flores was told by the team’s General Manager, Chris Grier, that “Steve” was “mad” that Mr. Flores’ success in winning games that year was “compromising [the team’s] draft position.”

The allegations, if proven, would be a bombshell of epic proportions. Only a handful of times has a league ordered that an owner sell or transfer ownership of a team. But if true, odds are this would be the only possible response for the NFL.

Bigger than the NFL

While the Flores lawsuit and the allegations about the coach being offered money to lose certainly ensured that Roger Goodell and company had a terrible week, it is possible that there might be criminal consequences if the allegations could be proven.

It is not clear at the moment if the FBI’s new sports integrity unit will open an investigation into the allegations. Still, this might fall within its mandate given the unit’s title.

Brian Flores case viewed from federal level

Depending on the circumstances and facts, of which we have very few details, the federal government could have a few options for possible charges. However, the most prominent federal law that might attach, should probable cause be found, would be the Sports Bribery Act of 1964.

The Sports Bribery Act states:

Whoever carries into effect, attempts to carry into effect, or conspires with any other person to carry into effect any scheme in commerce to influence, in any way, by bribery any sporting contest, with knowledge that the purpose of such scheme is to influence by bribery that contest …

From this text, we can break the statute down into four elements that the government would need to prove:

Breaking down the elements

The key question surrounding the allegation is whether there is a scheme in commerce. A scheme in commerce refers to  a scheme effectuated “the use in interstate or foreign commerce of any facility for transportation or communication.”

While the NFL and the sport of professional football are engaged in interstate commerce (a predicate for triggering many federal laws,) there are several questions about whether the alleged scheme to lose games would qualify.

Unfortunately, there is not much case law on this issue. However, it is possible that if the offer of $100,000 was made by phone, the scheme in commerce could be triggered. It is also possible that payment itself could pass through communication facilities triggering the statute.

Gambling fits in?

While gambling is often associated with Sports Bribery Act charges, that is not always the case. For example, a remaining pending indictment stems from the match-fixing at the 2002 Olympics in pairs figure skating.

If the offer of money was made in association with intending to lose future games and tank to achieve the first overall draft pick, this could be found to be an effort to influence. The payment of money for each loss would appear to meet the standard for bribery. While most federal laws addressing bribery deal with government officials, the Sports Bribery Act does not.

Lastly, there is little debate that NFL games are sporting contests. It is worth noting that the act does not need to be completed; a conspiracy to lose games would suffice.

However, even if federal charges under the Sports Bribery Act or a statute of broad applicability like the federal wire fraud statute do not arise, it is possible that there might be state-level exposure.

State law

Like many states around the country, Florida has its own sports bribery law.

While the facts of the allegation are spotty in several places, for illustration purposes, we’ll assume this conversation took place at least partially in Florida, given the connections of the people to the state.

Florida Statute 838.12 criminalizes sports bribery where someone promises a coach something of value, with the intent to lose a professional game, as a third-degree felony. A felony in the third degree is punishable by a maximum of five years in prison in Florida.

What are the odds Ross faces charges after Super Bowl?

A lot of information still needs to come to the surface about what took place between Stephen Ross and Brian Flores.

Regardless of whether there is a criminal investigation, the NFL needs to take a good hard look at itself and open its eyes. They are not doing enough.

We often associate match-fixing with gambling, but gambling is not always the primary motivation. This is something that people who study match-fixing have been shouting for years, but it appears no one at the NFL was listening.

The betting market needs the NFL to clean up its house and take integrity seriously. It is past time for the NFL to get educated from top to bottom.