The Rooney Rule and the Trouble with Defining "Minorities"

This feature is part of Super Bowl Week at VICE Sports.

The NFL head coaching dominoes have largely fallen, and, after the season concludes with Super Bowl 50 on Sunday, we'll be ready to reflect on the Rooney Rule—on its impact and relevance and the questions it raises. Does Hue Jackson minus Lovie Smith equal zero, for example, and is that OK?

There is a flaw contained within the Rooney Rule, however, and it has nothing to do with its overall effectiveness at increasing racial diversity among league decision-makers, or whether it stigmatizes minority coaches who would have gotten interviews anyway, or if it is incomplete because it does not apply to coordinators or personnel directors.

The question is more fundamental, and while it hasn't emerged as an issue in the rule's 13 hiring seasons, that time could be coming.

The oddity is this: the Rooney Rule demands that each NFL team interview at least one minority candidate when hiring a head coach or general manager. But the league, like universities and corporations and municipalities—like all of us, really—has no idea who classifies as a "minority."

Think about it a moment. When the Cleveland Browns hired Jackson last week and when the New York Jets hired Todd Bowles a year ago, those two men clearly fit any accepted definition of "minority." Likewise, we can safely assume that someone like Tom Coughlin or Chip Kelly would not. But between those two poles exists a vast gradient of cultural identity.

Would Seahawks assistant linebackers coach Lofa Tatupu, a Pacific Islander, fit the bill? How about Eugene Chung, the Chiefs assistant offensive line coach, who is Korean-American? Or Stanford running backs coach Lance Taylor, who is Choctaw? Or Bears defensive quality control coach Sean Desai, who is of Indian descent?

It's reasonable to think they all would satisfy the Rooney Rule. But what if Tedi Bruschi decided to leave the ESPN studio and get into coaching? His mother is Filipina. What about Jeff Garcia, recently a Rams offensive assistant, who inherited his ginger features from his German-Irish mother and his last name from his Mexican-American father? What about former NFL safety Kevin Kaesviharn, whose father is Thai and whose mother is white?

How about former NFL linebacker Chris Gocong? According to his father, Chris is 12.5 percent French, 12.5 percent German, 25 percent American Indian, 25 percent Islander and 25 percent Filipino. That's America, baby. But is it the Rooney Rule?

"I don't think it's ever come up with the NFL. Because I don't think there's ever been an ambiguous situation," says attorney Cyrus Mehri, one of the Rooney Rule's architects. "But I do think with the national trends changing the way they are, you raise a good question. It just hasn't come up in a real-world way yet."

The one thing just about everyone agrees upon when defining a "minority group" is that it has little to do with the group's percentage of the overall population.

"When we talk about minorities, or about 'underrepresented minorities,' it is sort of about their location in the social, political, and economic hierarchies," says Camille Z. Charles, professor of sociology and director of the Center for Africana Studies at the University of Pennsylvania. "So groups that have faced oppression of various sorts, historically, and that history continues to be a challenge for the opportunities in the present. That can be said in certain circles about women. Even though they're a slight majority in the population, they're at a disadvantaged position."

So who fits under the Rooney Rule? Reading the text of the actual rule doesn't help much because, well, there doesn't seem to be any. Asked for the precise wording, NFL spokesman Brian McCarthy referred me to the original press release announcing implementation of the Rooney Rule in 2003, a memo that makes no attempt to define "minority applicants."

Speaking to Mehri and to former NFL player and long-time team executive John Wooten, it's clear the league relies heavily on the Fritz Pollard Alliance to identify candidates. The alliance is named for the 1921 player-coach of the Akron Pros who would be the last black NFL head coach until Raiders owner Al Davis promoted Art Shell to the role in 1989.

Each year, Mehri explains, the group develops a ready list of qualified minority candidates for positions in the front office, for head coaches, assistant coaches, and "all the way down the line."

"When it comes to the top, top positions like head coach and GM," says Mehri, a founding partner at Mehri & Skallet in Washington, D.C., "we vet with the GMs and head coaches on the clubs: 'Well, you have this person and this person on your staff. Is he ready to be a head coach?' So we do a lot of groundwork and vetting to make sure that the people that we have on our list are ready to go, that these are viable, strong candidates."

Mehri and his associates meet with the NFL commissioner and other high-ranking league executives in December and present the ready list, which the NFL then distributes to individual teams. The names are disseminated before Christmas, well in time for January hiring season.

And those names, as it turns out, are self-identified.

Asked about the Rooney Rule reaching beyond African-Americans to advocate for people like Carolina Panthers head coach Ron Rivera, whose heritage is Mexican and Puerto Rican, the 79-year-old Wooten sounded slightly annoyed.

"Let me get you back on track here," said Wooten, chairman of the Fritz Pollard Alliance. "First of all, we deal with a very simple point. If a person considers himself a minority, we accept it. Ron Rivera would tell you, the job that he has today is a direct result of us pushing him up the pipeline like he deserves. I talk to him as often as I've talked to Mike Tomlin, Marvin Lewis, Todd Bowles, and any other minority guy."

McCarthy, the NFL rep, confirms the self-identification standard.

"The Rooney Rule was put in place to increase racial diversity, and has not been applied to religion or sexual orientation," he wrote in an email. "This has not come up. But our policies reflect a culture of inclusiveness. The question on biracial status has not come up but if someone identified as a person of color or as biracial, then we would consider them as a person of color or biracial."

Really, any other method of defining minority candidates would be a nightmare for the NFL. Imagine blue-suited businessmen around a conference table on Park Avenue, deciding whether, say, former NFL safety Haruki Nakamura (Japanese father, white mother) or Buccaneers quarterbacks coach Mike Bajakian (Armenian-American) qualifies as a minority.

But the self-identification formula is not without its red flags. Charles, the Penn professor, says it's a recurring controversy in academia, where anything other than straight WASP male tends to be touted as diversity.

"So for example in the black community, if you believe that the United States has a responsibility to kind of make efforts to repair the damage that was done by centuries of slavery and Jim Crow," Charles says, "then it isn't enough for a person to check a box that says 'Black.' Because that could be an immigrant from another country."

Whether such box-checking can create a legal vulnerability is another matter. Jon Israel, sports labor attorney at Foley & Lardner in New York City and former in-house counsel for the NBA, takes the middle ground.

"Is there some legal threat? There always is," Israel says. "In this area, when you're dealing with something that is prohibited, like the consideration of race or some other protected status in the employment context, there's always some risk when you allow it to be used, even as a criterion for trying to bring in an applicant pool. Because there's always potential missteps and miscommunications and other things that could trigger lawsuits when somebody feels like they didn't get picked."

At the same time, Israel, who is generally a fan of the Rooney Rule, gives those lawsuits long odds of being successful.

"Look, just because you might offer opportunity to one protected group, or at least be exploring that level of diversity, doesn't mean you're not providing the opportunity to somebody else," he says. "To me, that's the important legal point to keep in mind."

If an uproar were to arise over minority status in the NFL, the most likely punishment would involve a fine. That's what happened in 2003 when the Detroit Lions hired Steve Mariucci without interviewing a minority candidate. (Five of them turned down interview offers, deducing that the Lions' decision had already been made.) Then-NFL Commissioner Paul Tagliabue, a major proponent of diversity, fined the team $200,000 and threatened to dock the next violator $500,000.

The commissioner maintains wide discretion in this area, and could perhaps penalize a team a draft pick or two, as well. But it seems farfetched to think the league would block the hiring of a coach or general manager if it felt he had claimed dubious minority status to help secure an interview.

No, if and when the first controversy over a mixed-race coach occurs, the shock waves will be felt primarily on the public-relations front. That would be significant, too. The NFL remains the most profitable and most scrutinized sports organization in America. A tempest over whether a coaching candidate is "black enough" or "Mexican enough" would surely place Roger Goodell and his mostly straight WASP male corporate partners in an uncomfortable spot.

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