As to Fearless’ position that its grants were mere charitable contributions outside of Section 1981’s reach, Judge Newsom wrote, “We don’t think so.”
“As already explained, the contest ends in the formation of a contractual relationship between Fearless and the winner. And it’s no answer to say that the contest itself merely facilitates the making of the eventual contract,” he said.
The judge added a swipe at Judge Rosenbaum’s continued invocation of “flopping” in her dissent.
“Let us not forget: We’re talking about real-live, flesh-and-blood individuals who were excluded from the opportunity to compete in Fearless’s contest solely on account of the color of their skin,” Judge Newsom said. “Respectfully, victims of race discrimination — whether white, black, or brown — are not floppers.”
Counsel for the parties didn’t immediately respond to a request for comment Monday.
U.S. Circuit Judges Robin S. Rosenbaum, Kevin C. Newsom and Robert J. Luck sat on the panel for the Eleventh Circuit.
American Alliance is represented by Thomas McCarthy, Cameron Norris, Gilbert Dickey and Gabriel Anderson of Consovoy McCarthy PLLC and William Fawcett of Chambliss & Fawcett LLP.
