No One Is Taking a Knee on Sunday

Snoop Dogg, Mary J. Blige, and Dr. Dre
Photo by Jeff Kravitz/Getty Images
Eriq Gardner
February 13, 2022

Super Bowl LVI in Los Angeles will showcase the National Football League as a study in contrasts: a rich and powerful organization that’s flying as high as ever, and yet one that is both beset with culture problems and intensely image-conscious. That tension can lead to some questionable calls that some might deem insulting.

Take the halftime performances by Dr. Dre, Snoop Dogg, Eminem, Mary J. Blige, and Kendrick Lamar. Historically, Super Bowls have offered artists exposure and marketing opportunities that far outweigh the surprisingly modest paycheck. But the NFL didn’t just get these hip-hop stars to perform for free. In fact, this year it’s costing Dre money, even though he’s got no new album or tour to promote. I’m told that the hip-hop legend and Beats Electronics mogul, who is from Los Angeles, has put up most of the $7 million budget himself and bought an extra SoFi Stadium box for friends to watch. He ostensibly recognizes the once-in-a-lifetime opportunity to take the stage before the world’s largest audience.

But it hasn’t exactly been an easy ride. In the weeks leading up to the Super Bowl, Dre has gone back and forth with league officials about the lyrics and content of the songs that he could perform onstage. And it goes beyond curse words. A source close to the artist complained that Dre was being “disgustingly censored.” How? The league apparently didn’t want its premier event to turn into a divisive culture war moment. In particular, I’m told, N.F.L. representatives indicated to Dre during rehearsals that they weren’t comfortable with a lyric from his signature 1999 hit, Still D.R.E., which states that he’s “still not loving police.” 

That line harkens to Dre’s time as leader of N.W.A., when the seminal hip-hop group released the controversial song, Fuck Tha Police. At one point, the NFL told Dre he couldn’t say the line at all, but as of this writing, Dre is optimistic that “police” might make the cut of “accepted” lyrics. Meanwhile, the league nixed a plan by Eminem to kneel, Colin Kaepernick-style. Organizers also flagged something that Snoop Dogg was set to wear as possibly appearing gang-related. (Asked about new limitations placed on halftime performers, a spokesperson for the league did not respond.)

Perhaps brazen, but when you’re running up the score as the NFL has with 75 of the 100 most-watched TV broadcasts this past year, you can get away with a lot, including demanding that music stars known for speaking their minds (including one whose documentary was titled The Defiant Ones) do nothing controversial. Commissioner Roger Goodell guards the league’s reputation zealously and effectively, so if it feels like the league is constantly teetering on the edge of going too far, there’s probably a reason for that. The stakes are very high, and the playbook for preserving mass appeal is always complicated.

While the NFL’s image has been bruised in recent years on topics ranging from concussions to seemingly blacklisting Kaepernick, it has skillfully navigated its troubles. On the scourge of head injuries, which presented a significant threat to the sport, the NFL settled legal claims by retirees and signaled a commitment to player safety with meaningful rules changes and strategic investments in scientific research. Health professionals will assess true progress, but the controversy has faded of late from popular discourse.

And as far as Kaepernick goes, the league walked a tightrope during the Trump years, giving its players some latitude to express themselves while hardly making amends to the quarterback who took a knee. (The league eventually settled with Kaepernick, paying him a sum reportedly under $10 million, a fraction of Super Bowl starting quarterback Matthew Stafford’s $27 million annual salary.) While “stick to sports” conservatives railed for a while, TV ratings rebounded sensationally, showing the league’s mettle. It should also be noted that the NFL partnered with Jay-Z on social justice issues and to help select artists for the Super Bowl.

If the NFL has a weak spot, however, it probably rests with being so image conscious. The league’s billionaire owners are intensely private and will seemingly pay through the nose to avoid being personally embarrassed.

That could be the lesson from a $790 million settlement announced in November. The deal resolved legal claims made by the City of St. Louis over the 2016 departure of the very same Rams franchise that is playing in today’s Super Bowl. The suit tested whether the NFL had violated its own relocation rules and fraudulently induced the city to spend significant sums to keep a team that had played there for two decades. Most legal pundits gave the league an excellent shot at eventually prevailing in the case—if not at trial, then subsequently on appeal—but that was irrelevant. The NFL couldn’t get this dispute into private arbitration (the Rams took an unsuccessful bid to arbitrate all the way to the Supreme Court), and so the league’s dirty laundry—including conversations amongst the owners—was set to be aired in an open Missouri courtroom during this year’s playoffs. That prospect appeared intolerable. And so, on the eve of trial, with expectations running high that the fruits of discovery would be making headlines, the case settled.

The $790 million number was jaw-dropping, and that figure probably doesn’t truly account for the cost of settling, as the resolution spurred yet more litigation. In late January, the NFL was hit with a similar lawsuit over the Chargers franchise’s move from San Diego to Los Angeles.

Have attorneys identified a soft spot in the way the NFL guards the kingdom? Probably. Consider the lawsuit filed against the league on Feb. 1 by Brian Flores. The former Miami Dolphins coach had the sports punditocracy chattering with his claim that NFL hiring practices are racist. Very quickly, the league’s “Rooney Rule”—whereby teams must interview at least one minority head coach or G.M. candidate before making their selection—evolved from serving as a model for others in Corporate America to the object of scorn. Back in 2014, The Hollywood Reporter published a guest column by the director of USC Annenberg’s Media, Diversity & Social Change Initiative, headlined Hey Hollywood, It’s Time to Adopt the ‘Rooney Rule’—for Women. Now, token acts of consideration are no longer seen as sufficient, and in the wake of the Flores suit, many news outlets have published stories noting that minorities haven’t made a lot of progress actually capturing head coach jobs. (The NFL has two Black head coaches among its 32 teams.) Flores, who is Black, alleges that his job interviews were a “sham” held only to comply with league policy.

This is a ripe subject for a discrimination suit, but it’s also noteworthy how Flores’ attorney Douglas Wigdor is pursuing these claims. For starters, Flores is the lead representative of a putative class action—a strategy that appears expressly designed to counter any attempt by the NFL to move Flores’ grievances to private arbitration. Typically, a judge would look at the coach’s previous deal with the Dolphins and, seeing an arbitration clause, send the dispute on its way. But class actions are trickier.

Focusing on the NFL’s hiring practices at large may be more than the ticket for a public showdown; it also has the added benefit of expanding the zone of relevant discovery. Wigdor is a pro at using mass outrage as his leverage point. His law firm sounds an alarm with the press anytime a case is filed. In past discrimination and harassment lawsuits against the likes of Fox News and Goldman Sachs, he’s wrestled with arbitration clauses, but not before creating a lot of noise on the front end. Most of his cases start off with a bang and then quietly settle.

The NFL may be able to handle Flores’ core allegations so long as it doesn’t create an ongoing spectacle. During Super Bowl week, Goodell deftly fielded questions about the situation. The commissioner acknowledged the NFL “fell short” on the diversity front while stopping short of taking or assigning blame: “Is there another thing that we can do to make sure that we’re attracting the best talent and making our league more inclusive? If I had the answer right now, I would give it to you. I would have implemented it.”

For the most part, the league is quite adept at playing defense by throwing money and P.R. savvy at any problem that threatens to truly tarnish its reputation in a harmful way. Of course, there are a few outstanding situations to monitor:

  • For the past few years, the league has battled harassment claims against Washington Commanders owner Daniel Snyder. Even members of Congress have made inquiries. This week, in the wake of allegations made during a roundtable discussion by the House Committee on Oversight and Reform, the NFL tapped the law firm Gibson Dunn to conduct an “independent investigation”—the second time the team’s alleged toxic culture has triggered a sanctioned probe. This time, it’s promised, the results of the inquiry will be released. Combined with #MeToo claims against various players—perhaps most notably, star QB Deshaun Watson, who is facing 22 accusers with similar stories of sexual asssault—the NFL’s tremendous progress attracting female fans may be vulnerable.

  • Part of the fallout from the first Snyder investigation was the unearthing of racist, misogynistic and anti-gay emails from former NFL coach and ESPN personality Jon Gruden, who was then fired by the Las Vegas Raiders. Gruden is now suing the NFL, alleging a “malicious and orchestrated campaign” to ruin his career. He questions why his emails were the only ones leaked to the press from the 650,000 collected during the investigation. If the NFL can’t compel arbitration or dismiss quickly, it may present another source of embarrassment for the league as Gruden hunts for double standards.

  • The league will have to steer through an antitrust lawsuit set to go to trial in the coming year. The class action comes from bars, restaurants and other retail establishments who say they are paying supracompetitive prices for DirecTV’s “Sunday Ticket.” But for alleged collusion and other restrictions, these plaintiffs believe that the NFL’s 32 teams might compete with each other by streaming their own telecasts of games. On the road to trial, the plaintiffs have fought hard for, and collected, all sorts of secrets about the league’s deals with its broadcasting partners. In fact, just this past week, a judge allowed the plaintiffs to see unredacted copies of the league’s contracts with major networks.

  • Every year, the NFL ties itself closer and closer to the gambling community. For instance, the league has made Caesars Entertainment, DraftKings and FanDuel sports betting partners. So far, there haven’t been major legal repercussions, but there’s certainly a reason why sports leagues were for decades extremely careful on the subject, and it’s certainly a situation that could explode in the future. For example, when Flores alleged that Miami Dolphins owner Stephen Ross offered him $100,000 per loss in 2019 (presumably to position the team for higher draft position), some noted that Ross was an investor in a gambling startup. The NFL won’t want anything, even optics, undercutting the integrity of competition.

Time will tell whether the NFL’s legal challenges do any real damage to its bottom line. History suggests not. The conference championships this year attracted nearly 50 million live viewers, an incredible sum in the cord-cutting era. Football’s importance to broadcasters can’t be overstated as this sport may be the last thing truly keeping many people from canceling cable and satellite subscriptions altogether. This past year, the NFL unveiled massive new TV rights deals worth more than $100 billion over the next decade (with a lucrative new “Sunday Ticket” partner to come), Streaming empires may be crowned by the league. So hopes Amazon, which will soon get a chance to exclusively distribute Thursday Night Football games.

With such unbridled success, it’s little wonder that the NFL can get contumelious when policing halftime at the Super Bowl. That was true a decade ago when the NFL took the singer M.I.A. to arbitration after she stuck up her middle finger during a 2012 halftime performance. (The claim that she tarnished the league’s goodwill and reputation was settled three years later.) It’s still true today, and goes beyond telling hip hop stars what they can and can’t say, do, and wear on stage. The NFL’s leverage is that it knows the power of its own platform, and it’s well-honed ability to protect itself. If anything goes wrong on Sunday night, Dre will be financially responsible. He agreed in his contract to indemnify the league.