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By Daniel Wallach

After a period of relative inactivity, the Brian Flores racial discrimination lawsuit against the NFL is beginning to heat up. Last month, Flores filed an amended complaint which included two additional plaintiffs (Steve Wilks and Ray Horton) and added 3 more NFL teams (the Titans, Texans and Cardinals) as defendants.

While we await the formal response from the NFL defendants--which is expected towards the end of June--both sides recently filed a proposed "civil case management plan and scheduling order" with the court. The proposed case management plan provides a succinct overview of the claims and anticipated defenses. This is especially appreciated when the amended complaint is 100 pages long and involves multiple parties, claims, and non-intersecting storylines.

More revealingly, the case management plan includes a preview of what to expect in the lawsuit over the next couple of months. Both sides identify for the first time what "motions" (i.e., requests for judicial intervention) they will be filing with the court. Besides stating the obvious--such as the NFL signaling that it will be filing both a motion to dismiss the amended complaint and a motion to compel arbitration--these initial disclosures also include some unexpected revelations from each side that could tee up some spirited legal battles over the next few months.

Horton's importance to the lawsuit for class certification purposes

One of these crucial battles will focus on Horton, who may turn out to be the key plaintiff for class certification purposes. Horton was a defensive coordinator for three NFL teams (including the Titans) and coached in the league for more than 20 years without ever having been offered a head coaching position. The addition of Horton as a named plaintiff serves two important strategic purposes. First, it bolsters Flores' allegation that NFL teams conduct 'sham' interviews of Black head coaching candidates simply to satisfy the 'Rooney Rule.' Whereas Flores relies primarily on a Bill Belichick text message that the NFL now conveniently asserts is "ambiguous," Horton's claim of a 'sham interview' process is backed by much stronger evidence--a recorded admission from former Titans head coach Mike Mularkey, who stated in a podcast interview that he was offered the Titans head coaching position in 2016 in circumvention of the Rooney Rule while other minority candidates--including Horton--were still going through the interview process. That allegation--when coupled with the Belichick text message--could help the plaintiffs overcome an expected NFL motion to dismiss on that claim.

Second, Horton's inclusion as a named plaintiff is seemingly designed with class certification in mind. Unlike Flores and Wilks--the other new plaintiff added in the amended complaint--Horton has never been a head coach in the NFL. As such, his claims of racial discrimination are more "typical" of the claims of other potential members of the class, many of whom have yet to be hired as an NFL head coach. The "typicality" requirement of class certification ensures that the named plaintiffs' claims have the same essential characteristics as the class at large. Since both Flores and Wilks have previously been head coaches in the NFL, their situations and circumstances may differ markedly from those class members who have never been an NFL head coach.

Nowhere is this more evident than in Flores' own particularized allegations, which detail: (1) an alleged bribe offer made by Miami Dolphins owner Stephen Ross to intentionally lose games during the 2019 season as part of a scheme to secure the top overall pick in the 2020 NFL Draft; and (2) an "improper directive" to secretly meet with a prominent NFL quarterback (reportedly Tom Brady) still under contract with another NFL team. Flores alleges that his refusal to participate in the alleged tanking and tampering schemes played a role in the Dolphins' decision to fire him as head coach despite leading the team to winning records in his last two seasons. Calling these reasons "plainly unrelated to his race," the NFL defendants have indicated that they will be seeking the dismissal of Flores' racial discrimination claims for failure to state a viable cause of action because his own allegations reveal that "race played no role in the employment decisions challenged here."

NFL will be seeking the dismissal of Horton's claims as time-barred

This potential ground for dismissal as to Flores' claims accentuates the importance of Horton's inclusion in the lawsuit since he is not subject to this unique defense, and moreover, possesses characteristics more aligned with other members of the potential class. Which is why the looming battle over the validity of Horton's claims warrants special attention. In their portion of the proposed case management plan submitted to the court last month, the NFL defendants signaled that they will be moving to dismiss Horton's racial discrimination claims as time-barred because the events giving rise to his claims occurred, if at all, in January 2016 when he interviewed for the Titans head coaching position. The statute of limitations on a claim of employment discrimination is generally either three or four years (depending on the particular statutory cause of action), meaning that Horton may have filed his claims several years too late. The NFL defendants hint at this argument with their statement in the joint letter that "Mr. Horton alleges that the Titans interviewed him for their head coaching position over six years ago, in 2016, without a genuine interest to hire him," followed several paragraphs later by their assertion that they plan to assert multiple other defenses to Plaintiffs' claims, including . . . statute of limitations defenses."

The consequences of this defense are obvious. If Horton's claims are dismissed as time-barred, there might not be a certifiable class since he is the only plaintiff who has never been a head coach--and thus his claims are more "typical" of the other class members--and both Flores and Wilks could be subject to unique defenses and other individualized arguments that may otherwise preclude class certification (or, worse, lead to the dismissal of their claims on a Rule 12(b)(6) motion to dismiss). Without a suitable class representative, this lawsuit becomes much narrower in scope. Therefore, the viability of Horton's claims could be the key to the entire case.

Plaintiffs may need "equitable tolling" to save Horton's claims

To preserve Horton's seemingly untimely claims, his attorneys may need to resort to the doctrine of "equitable tolling." Indeed, in their recent court filing, Horton's attorneys assert that the doctrine of "equitable tolling" would serve to "revive" any claims where the statute of limitations has otherwise passed. "Equitable tolling" is a common law doctrine providing that a statute of limitations shall not bar a claim in cases where the plaintiff, despite the exercise of due diligence, could not or did not discover the alleged injury until after the expiration of the limitations period.

In the employment discrimination context, however, equitable tolling is considered an "extraordinary" remedy that is to be applied sparingly. The Second Circuit's case law on equitable tolling makes clear that for equitable tolling to apply, "the employer must prevent the employee in some extraordinary way from exercising her rights, or the employee must be actively misled by his employer and that conduct must be responsible for making the employee unaware of her [statutory] rights.” In short, equitable tolling will apply only where the employer's own acts or omissions have lulled the plaintiff into foregoing prompt attempts to vindicate his or her rights.

Horton's attorneys will likely argue that the Titans actively prevented Horton from discovering the existence of the alleged sham interview by concealing the fact that Mularkey had already been offered by the Titans' head coaching position when Horton interviewed for that same position in January 2016. Horton's attorneys would presumably argue that, as a result of this active concealment by the team, Horton could not have discovered--with the exercise of reasonable diligence--that he was the victim of a sham interview by the Titans until October 21, 2020 at the earliest when Mularkey publicly admitted in a podcast interview with "Steelers Realm" that one of his greatest professional regrets was secretly accepting the Titans coaching position in circumvention of the Rooney Rule while other minority candidates--including Horton--were still going through the interview process.

The expected discovery battle over equitable tolling

Believing that "equitable tolling" may be the only way to avoid dismissal of Horton's claims on statute of limitations grounds, Horton's attorneys have advised the court in their proposed case management plan that "certain discovery" is necessary prior to the resolution of the NFL's anticipated motion to dismiss and motion to compel arbitration. In particular, plaintiffs' attorneys have indicated they will be seeking pre-ruling discovery on the arbitrator bias issue (bearing on the appropriateness of NFL Commissioner Roger Goodell serving as the arbitrator of tort claims asserted against his employer and those that pay his $63.9 million annual salary), personal jurisdiction and venue issues (to the extent that the NFL defendants raise those grounds for dismissal in their forthcoming motion to dismiss), and "issues relating to the equitable tolling issue in connection with the claims brought by . . . Horton."

On the equitable tolling issue, Horton's attorneys would presumably seek to take Mularkey's deposition under oath to get him to repeat and/or verify the statements that he made during the podcast in order to overcome any potential hearsay objection by the Titans and/or the NFL since those podcast admissions were made by him out of court and are being offered by Horton for the truth of the matter asserted. A deposition of Mularkey could also elicit more detailed information about the conversations that he had with Titans ownership and management regarding his hiring and the need to interview other candidates. Along the same lines, Horton's attorneys would likely also seek to take the depositions of Titans team owner Amy Adams Strunk, Kenneth Adams (another team owner), Titans General Manager Jon Robinson, Titans President Steve Underwood, and Titans' Vice President Vin Marino, all of whom allegedly participated in the January 2016 interview with Horton. Through these depositions, Horton's legal team would seek to learn more about the timing of the Titans' decision to hire Mularkey as head coach and could request internal documents (including emails) bearing on that decision. In addition, the plaintiffs' attorneys may seek to depose the other candidates who interviewed for the Titans' open head coaching position in January 2016, namely, Doug Marrone (the then Jacksonville Jaguars assistant head coach), and Teryl Austin (a black candidate who was the Detroit Lions defensive coordinator).

If the court were to grant such pre-ruling discovery, the depositions would likely take place on an expedited basis, likely during the summer months. Not surprisingly, the NFL defendants have a different view of the issue, advising the court that such pre-ruling discovery is "unwarranted" and that they will instead be seeking a blanket stay of all discovery during the pendency of their motion to dismiss and motion to compel arbitration.

While there are many battles and legal skirmishes that will play out in the Flores case over the coming months, this will definitely be one worth keeping your eye on given its potential signal importance to the entire case and the viability of a class action.

Daniel Wallach is the co-founder of Conduct Detrimental. He is a nationally recognized gaming and sports betting attorney. You can follow him on Twitter at @WALLACHLEGAL.