MR. KOJO NNAMDIIt's a history the National Football League isn't all that proud of. The first African-American coach to head a pro football team was Fritz Pollard hired in 1921. Fritz was a player on the Akron Pros the year before. When Fritz died at the age of 92, more than 60 years later, he remained the only African-American coach of a pro football team. It was 1989 before a second black coach was named. Today, things are different, thanks in part to the Rooney Rule. It's a little known interview rule, one that changed American sports and many say could dramatically change the ranks of the American workforce if applied across the country.

MR. KOJO NNAMDIMy guest today worked for the person who made the Rooney Rule a reality. My guest is N. Jeremi Duru. He's a law professor at Temple University and author of the book, "Advancing the Ball: Race Reformation and the Quest for Equal Coaching Opportunity in the NFL." He joins us in studio. Welcome.

MR. N. JEREMI DURUThank you, Kojo. I'm pleased to be here.

NNAMDIWhy is it called the Rooney Rule?

DURUIt's called the Rooney Rule because once the NFL got a hold of this idea, the lawyer that I worked for, you mentioned, was a fellow named Cyrus Mehri. He worked together with Johnnie Cochran and they presented to the NFL...

NNAMDIJohnnie Cochran? You mean that Johnnie Cochran?

DURUThat Johnnie Cochran. That Johnnie Cochran, absolutely. The two of them presented to the NFL this idea that if you're going to hire a head coach, you should first interview at least one person of color so we can open minds to candidates who might not be the intuitive choices. They presented it to the league. The league, after some initial concern about the proposal, circulated it among the various owners. And Dan Rooney loved the idea and he approached the commissioner and said we've got to do something with this. The commissioner then appointed a committee of owners to look into the issue and Dan Rooney was the chair of the committee.

NNAMDIThat's why it became known as the Rooney Rule. The basics of the Rooney Rule are pretty clear. Essentially, whenever a team wants to hire a new head coach, the team owner must interview at least one minority candidate.

DURUThat's correct.

NNAMDIThat's the Rooney Rule.

DURUThat's right.

NNAMDIYou worked, as you mentioned, for Cyrus Mehri, the man who was the unlikely partner of Johnnie Cochran in this case. Cyrus and Johnnie's relationship started out a little bit rough thought didn't it?

DURUStarted out a little bit rough. Cyrus was working on a case against Coca Cola at the time. He was concerned that Johnnie was involving himself in a way that might cause some problems with respect to the case that Cyrus was bringing. But ultimately, the two of them got together. They talked about it, it became clear that as lawyers they had more in common than they thought. They were both essentially civil rights lawyers, something that I think is overlooked when we think about Johnnie Cochran as OJ's lawyer. I think at heart he's a civil rights lawyer. They ultimately agreed to begin working on cases together.

DURUAnd when Cyrus had the idea to challenge the National Football League, he asked Johnnie if he wanted to be a part of it. Johnnie himself was a high school quarterback. He loved football, was a huge Oakland Raiders fan. He agreed to be a part of it. And the two of them basically took on the league.

NNAMDIIf you'd like to join this conversation, you can call us at 800-433-8850. Our guest is N. Jeremi Duru. He's a law professor at Temple University and author of the book, "Advancing the Ball: Race Reformation and the Quest for Equal Coaching Opportunity in the NFL." Again, the number is 800-433-8850. If you have questions about the Rooney Rule, its history or its effects, you can also go to our website kojoshow.org. Send us a tweet @kojoshow or e-mail us, kojo@wamu.org if you'd like to join the conversation.

NNAMDIWhen lawyers want to get someone's attention, they generally file a lawsuit. Why did Cyrus and Johnnie Cochran choose to go the, well, academic route and release a statistical study instead? There are lawyers here in Washington, as you know, we have a few lawyers who were saying, what a statistical study, how come?

DURUI don't think they thought they could have won with a lawsuit. And I think that their view was that if they got the NFL to see the errors of the NFL's ways, in some respects, that the NFL would think about changing its personnel practices. The NFL had articulated that it wanted more people of color in the head coaching ranks. And indeed over the course of the late '70s, '80s and early '90s, the NFL had put in place a number of programs to increase diversity among coaches. And there was some increase, Kojo. But there remained a glass ceiling at the top of the coaching hierarchy.

NNAMDIHead coaches.

DURUThere were very few head coaches. And so they -- that is to say Cyrus Mehri and Johnnie Cochran concluded that if they presented to the NFL an idea that might get the NFL over that hump, break down that glass ceiling a bit, the NFL might latch on to it and run with it. Litigation wasn't a very viable approach because it's each particular team that does its hiring. And although Cyrus and Johnnie had some statistics to show that league-wide it appeared as though coaches of color were doing very well, but were the last hired, very rarely hired and the first fired when they did get positions, those statistics couldn't as a litigation matter be used against any particular team.

DURUIt is the team that would be the defendant. So there was some procedural questions that made them wonder whether litigation would work. So they decided to basically try the case through the media and released this press release and this report. Send a copy to the NFL and say it's on the table, what are we going to do about it.

NNAMDIWere there also some resource questions? Because suing the NFL would have meant dealing with a battery of high paid lawyers, and it's my understanding that Johnnie Cochran was working for nothing.

DURUAbsolutely. Both of them, both Cyrus Mehri and Johnnie Cochran were pure pro-bono. Neither was working for any money. The NFL is the most powerful, the most profitable sports league in the world. And so, there would have been a resource issue as well.

NNAMDIHow did the NFL react to the study? In particular, what was the roll of the NFL attorney Jeff Pash?

DURUWell, Jeff Pash is the person who received the study and I believe very strongly that if it weren't for Jeff Pash's involvement in this, things could have gotten ugly. Instead, and we should talk about, things have gone in a really positive direction for the NFL. Jeff Pash was a very stoic and stayed and respectful lawyer. He's not in the history onyx. He's into finding common ground. He's the person who read the report. As soon as he got it, he assessed it as a lawyer should to determine whether there's any liability risk on the part of the NFL.

DURUAnd I think he concluded, Kojo, what Cyrus Mehri and Johnnie Cochran concluded initially which is the NFL is not really going to suffer any legal liability on this point. The NFL is pretty well protected from that for the procedural issues, for the procedural reasons I discussed earlier. And so, once Jeff concluded that, he took a second look at the report and saw things in the report that he thought could get the NFL where it wanted to be with respect diversity. And so, with his blessing, Commissioner Tagliabue sent the report around to all 32 owners, said read this report. When we have our owners' meeting in two weeks, we're going to talk about it.

NNAMDIYou say Jeff Pash probably doesn't get enough credit for averting what might have been an ugly confrontation between these lawyers in the league because apparently some others, besides Dan Rooney I guess, in the league were much more reluctant to sit down at a table with Johnnie Cochran and Cyrus.

DURUYeah, that's right. I mean, there was one executive vice president -- I talked about him in the book a bit -- in league who basically described them as self-serving outsiders who basically wanted to strengthen their legal practices by challenging the league, had no interest in the league, didn't care if the league did well or did poorly, they just basically wanted to strengthen themselves and get some press. And there were some owners who had that view as well. And so, Jeff and Commissioner Tagliabue together with then-chief operating officer Roger Goddell who's now the commissioner, the three of them kind of headed up the league's effort to convince owners that this rule is something that would benefit owners, benefit the league, benefit everybody.

NNAMDII guess at some point, right now, I guess, we should contextualize this. How many African-American players were there in the NFL at that point in terms of percentages?

DURUJust under 70 percent. Fluttered around 68 to 69 percent. And there was a time in 2002, right after coach Tony Dungy who later led the Indianapolis Colts to the Super Bowl, after he was fired, there was one head coach of color in a league in which there are 70 percent -- more than 70 percent players of color, about 70 percent African-American players. So the disproportionality was just alarming.

NNAMDISo that even though individual owners may not necessarily have wanted to do anything about that, the NFL as a whole, as a body, felt that we need to have a better picture of diversity here because this doesn't look too good.

DURUDoesn't look good. Doesn't look good, exactly. The National Basketball Association was legions ahead of the NFL with respect to diversity. Not just in coaching, but in executive positions, in scouting positions, and the various front office positions. Major League Baseball was miles ahead as well. The NFL was really a laughing stock when it came to diversity questions.

NNAMDIIf you'd like to join the conversation, the number is 800-433-8850. We're going to take a short break. How do you see the Rooney Rule having affected the NFL? Do you think of it as an affirmative action rule? If you do, that's a question we'll address when we come back. And do you think it should also be used or something similar to the Rooney Rule outside of professional sports, because that's what's beginning to happen. 800-433-8850.

NNAMDIWe're talking with N. Jeremi Duru. He's a law professor at Temple University. His book is called, "Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL." I'm Kojo Nnamdi.

NNAMDIWelcome back. We're discussing the Rooney Rule which requires that an NFL team that is seeking a new head coach has to interview at least one minority. Have you been responsible for hiring people at your job? Have you sat on a search committee? Do you or your organization make it a practice, whether formal or informal, of requiring that your pool of interview candidates include at least one minority person? How would such a rule help or hurt your search process and the candidates you see?

NNAMDICall us at 800-433-8850. Our guest is N. Jeremi Duru. He's a law professor at Temple University and author of book, "Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL." Some say the Rooney Rule is toothless because there's no hiring requirement. How do you think a hiring requirement would have helped or hurt?

DURUWell, it's -- I'll start by saying that nobody in the league, not the coaches, not the lawyers as we talked about, Cyrus or Johnny, not the owners, not the commissioner, wanted a hiring requirement. There was basic -- there was agreement as to opposition to a hiring requirement because the sense was that all that these coaches need is the opportunity, the opportunity to show that they can do the job. A hiring requirement, quite frankly. And this is some of the resistance that existed on the part of the lawyers involved, likely would not have been legal under current affirmative action law.

DURUAnd so the way to thread the needle to get more diverse work places, without rubbing up against illegality under Title VII under the Constitution, is to impact the process. Create a process that fosters an atmosphere in which equal opportunity can flourish, and let that process have outputs that are the diverse work forces. So that's the idea that took hold here, and it's been effective, in the National Football League and elsewhere.

NNAMDIWe'll get to elsewhere in a second because on the face of it, it seemed like a brilliant idea. It avoids being quote/unquote "an affirmative action program." Its critics have called it an affirmative action program, but that would be an unfair label because there is no hiring requirement.

DURUAbsolutely. That would be entirely -- I mean, it's -- there's no hiring requirement, there's no quota. There's not even -- I mean, the -- under the Grutter v. Michigan case, we're getting in to law a bit now, but a case that suggests that at the University of Michigan, that educational institution can consider plus factors, whether that plus factor is race or gender, or being able to play the oboe, or being from Nebraska. The institution can consider those things in admitting a student body.

DURUHere's there's no -- plus factors don't even come into play into the hiring. Nothing about the hiring is relevant to the rule. It's just the interview. Once the interview is done, the team can interview three more people of color, no more people of color, five people who aren't of color. They can make a hire initially right way, they can wait a long time and make a hire later. The rule doesn't bear on anything. All that's required is the interview.

DURUAnd so I think it's unfair to view it as affirmative action. It's certainly unfair to view it as reverse discrimination as some people have characterized it.1

NNAMDIAnd as I say, it's brilliance on its face, but here's the other side of that coin, so to speak, the risk of sham or token interviews. Some have pointed a finger at the owner of the Washington Redskins, Dan Snyder, saying he did not seriously consider the minority candidate that he interviewed before hiring our currently coach, Mike Shanahan. I don't want to put you at risk of being sued by Dan Snyder, but what is your reaction to the notion that it is possible that there's a loophole here in which sham interviews can be conducted?

DURUSham interviews can be conducted. I mean, that's the weakness of the rule. That's what makes it a rule that, you know, it's not a perfect rule. Because it is process oriented, we can't get owner states of mind. And because of that, we can't ensure that they are meaningfully considering the candidates. So in the Redskins case, everybody said -- who was involved with the interview, said that the interview...

NNAMDIWith Jerry Gray.

DURU...with Jerry Gray -- Jerry Gray said that the interview was meaningful. The league, having interviewed Dan Snyder, said that the interview was meaningful. What actually happened in that room we don't know. Jason Reid of the Washington Post made a very interesting point a week ago, and he suggested that these interviews -- a transcript should be created from these interviews, shouldn't be made public, but should be shared with the National Football League.

DURUShould be shared with the Fritz Pollard Alliance, which is an organization named after Fritz Pollard, who you talked about some, Kojo.

NNAMDIYeah.

DURUThat seeks to ensure equal opportunity in the workplace in the NFL. So that the NFL and the Fritz Pollard Alliance can confirm that an interview was meaningful. A very interesting proposal on Jason's part.

NNAMDIBefore we go to the phones, Seattle Seahawks hiring Pete Carroll, reportedly the Seahawks were far down the road with Pete Carroll before they interviewed African-American Leslie Frazier. At the time the Minnesota Vikings defensive coordinator, Carroll was hired shortly after Frazier was interviewed.

DURUYeah. Well, that's an interesting one also. That one I think is a situation where not everybody knew all of the facts. It turns out that the Seattle Seahawks wanted Tony Dungy to be their President of their team, and when they were talking to Tony Dungy about being President of the team, he said that he thought Leslie Frazier would be a fabulous head coach. And so it seems pretty clear that there was a possibility, ultimately Tony Dungy decided against, it, but there was a possibility that we'd have Tony Dungy as president, Leslie Frazier as head coach regime there in Seattle.

DURUAnd Seattle was all for it. Dungy decided he didn't want to go forward into that, and so that idea kind of fell to the back. But the fact of this interest in Dungy as president and Frazier as head coach didn't come out in the press until after Carroll was hired. So initially the Seahawks were lambasted over it. But when you go back and you look at what happened, it seems though they really did have an open mind to having a coach of color there.

NNAMDIDid you say that Coach Dungy was fired? I didn't think you said that.

DURUNo. No.

NNAMDIBecause we had an e-mail from John in D.C., who said, "Your esteemed guest stated in passing that Coach Dungy was fired. It's my understanding that he was not fired, but gracefully retired on his own volition. Did your guest misspeak, or is there a back story we are missing out on?"

DURUWell, no. There's -- there's may have been a -- maybe I misspoke or the guest misheard. I'm not sure. Tony Dungy was fired by the Tampa Bay Buccaneers.

NNAMDIOh, yeah.

DURUHe was fired by the Tampa Bay -- okay. Right. I remember...

NNAMDIYeah.

DURUHe was fired by Tampa Bay Buccaneers in 2002, and that is what drove Cyrus Mehri to start thinking about what we can do to change the NFL. He was then later hired by the Indianapolis Colts. By the way, with the Tampa Bay Buccaneers he was fabulous.

NNAMDIMm-hmm.

DURUAnd it was astounding that he was fired. He was then later hired by the Indianapolis Colts and took the Indianapolis Colts to the Super Bowl. And from the Indianapolis Colts position, he retired gracefully just as the e-mailer suggested.

NNAMDIOn now to Martin in Rockville, Md. Martin, you're on the air. Go ahead, please.

MARTINHi. I've been listening to your caller, and there's a lot of interesting information that I've learned. But what I think is that the key thing is financial empowerment, not just all these various rules. Because when I look at the NBA, the NBA is still way ahead of the NFL in terms of hiring people of color. And what I know about the NBA is that their average salary is the highest of all the leagues, plus the NBA is probably the only league that has owners of color.

MARTINFirst it was Robert….

NNAMDIJohnson.

MARTIN...with the Bobcats, then of course, Michael Jordan who earned, I think, 30 million a year in his last three years. So I think financial empowerment is probably something we need to look into versus, you know, say the Rooney Rule, you know, with the NFL players.

NNAMDIHere's Jeremi Duru.

DURUYeah. That's a great point. That's a really great point. There's also, the -- there's an owner of color with the Angels in Major League Baseball as well, but you're right. There's no majority owner of color in the National Football League. My response to your question, which is a great one, is all oars in the water. I mean, I think we want to think about things like the Rooney Rule, and diverse candidate slates to help perform personnel practices, but we also have to think on the level of ownership.

DURUI completely agree with you, financial empowerment. And I think we're moving in that direction in the NFL. You may know that the Williams sisters are part owners of the Miami Dolphins now. They have a minority stake, but they are part owners. And there are a couple of other teams that have ownership of color, although it's not majority ownership. I believe that within the next five to 10 years, we will have a majority owner of NFL team who is a person of color who has a majority stake.

DURUAnd I think we'll begin to see some of the developments we've seen in the National Basketball Association, and Major League Baseball in that regard. As I indicated earlier with regard to personnel practices, the NFL has always been behind, and it's behind in this regard as well.

NNAMDIThank you very much for your call, Martin. We move on to Roger in Washington D.C. Roger, your turn. Go ahead, please.

ROGERHi. Thank you, Kojo, for the topic, and professor. And I just have a question. When we talk about definition of minority, are you looking regionally or locally, because as we all know (unintelligible) well, Caucasians, people called white, are a minority. And for example, a heterosexual Italian American monogamous Catholic, is that a minority? And so do you break it down regionally, or is this -- do African-Americans have monopoly on the definition of minority?

NNAMDIHere's Jeremi Duru.

DURUAfrican-Americans certainly don't have a monopoly on the -- on definition of minority. Indeed, let me tell what you what the -- the league rule calls for. It defines minority as a person of color. So those terms here would be synonyms, African-American, Latino, Asian-American, or Native American. Indeed, we had our first -- since the rule has been enacted, we had our first Latino coach hired this year, Ron Rivera, by the Carolina Panthers.

DURUSo in the National Football League we're talking about people of color when we use the word minority, and we have to recognize -- we have to contextualize this historically to understand why. I mean, historically, the NFL has been an absolute embarrassment when it comes to diversity. Kojo indicated the first head coach of color was in 1921, the next was in 1989. I mean, generations passed before there was another one.

DURUQuarterbacks of color were rare for the longest time, and still remain statistically rare. Centers of color, middle linebacker of color, the quote unquote "thinking positions" have tended to be relatively homogenous and excluded people of color, and head coaching position as well. And that's why we've got the rule defined as it is with respect to people of color, and the interview being one person of color.

NNAMDIAnd in answer to that caller's question, Cyrus Mehri says that the Rooney Rule helps white candidates as well as others by encouraging team owners to think outside the box and go beyond the more obvious options.

DURUAbsolutely. And I think that's -- and I'm really glad you brought that up, Kojo. I would argue that John Harbaugh in Baltimore, up I-95 here is a beneficiary of the Rooney Rule. He's white. He's a beneficiary of the Rooney Rule, because the Rooney Rule convinced a lot of owners to think outside the box as to who they would hire for their head -- with their head -- for the head coaching openings.

DURUJohn Harbaugh was not a big time offensive or defensive coordinator. He was not a well-known coach. He was a special teams coach for the longest time. He got an opportunity because the Ravens were willing to look outside of the box. The Ravens looked outside of the box because they had seen other teams as a consequence of the Rooney Rule profiting by looking outside of the box.

NNAMDIConsidering the Rooney Rule and how it's operated in professional football, you think that one of the more important aspect of it is how it's operating outside the world of professional sports. What are you seeing that others may not be seeing?

DURUWell, it's interesting. I mean, we've seen diverse candidates slates contemplated and adopted in society completely apart from sports. The Association of Art museum directors approached one of the architects of the Rooney Rule not long after the Rooney Rule came into play, to try to figure out how such a rule might help to diversify the upper echelons in our art museums.

DURUThe National Urban League has offered an opinion paper that says that all of corporate America would benefit from using diverse candidate slates when it comes to hiring executives. And more recently, and I think it's very exciting, Luis Aguilar, one of the five commissioners on the Securities and Exchange Commission has publically stated over the course of the last month and a half that he thinks that corporate board nominations should or would benefit from diversity ruling.

DURUThat we would get more diverse -- or excuse me, from a Rooney Rule like rule or diverse candidate slates. That we would have more diverse corporate boards if we took time to make sure that we considered nominating one person of color...

NNAMDIDon't have to hire, just make sure that they're a part of the interview. I'm afraid that's all the time we have. Jeremi Duru, thank you so much for joining us.

DURUThank you, Kojo, I enjoyed being here.

NNAMDIN. Jeremi Duru is a law professor at Temple University, author of the book, "Advancing the Ball: Race, Reformation and the Quest for Equal Coaching Opportunity in the NFL." Thank you all for listening. I'm Kojo Nnamdi.