- There is a pattern of bigoted questions being asked at the NFL combine so our Michael McCann analyzed the legal options players could use to fight back.
During this week’s NFL combine in Indianapolis, representatives from NFL teams asked LSU running back Derrius Guice bigoted questions that, unfortunately, are hardly unprecedented at the NFL’s annual showcase.
“Do you like men?”
“I heard your mom sells herself—how do you feel about that?”
These queries say more about the foolishness of the questioner than anything about the player. Yet that dynamic hasn’t stopped prejudicial questions from being asked. At the 2016 combine, an Atlanta Falcons assistant coach asked then-Ohio State cornerback Eli Apple, “So do you like men?” Similarly, during the 2013 combine, Colorado tight end Nick Kasa listened to a grown man ask him whether he "likes girls." A few years earlier, Oklahoma State wide receiver Dez Bryant was pressed on whether his mom was a prostitute while an NFL team requested Georgia defensive lineman Geno Atkins reveal whether he was gay or straight.
The unpersuasive rationale for NFL teams to ask bigoted questions
For its part, a team might contend that asking draft-eligible players offensive questions is not intended to bully them. The team might also assert that the players’ responses to those questions are irrelevant. After all, teams invest considerable resources in investigating players and their lives—teams usually don’t need in-person interviews to find out background information.
Instead, so this argument goes, discriminatory questions are designed to gauge how well a player responds to sudden hostility and unexpected uneasiness. In turn, the player’s reaction might lend insight on how a player would handle similar emotions as an NFL player.
Even if this interpretation is correct, its logic ultimately falls flat: there are non-bigoted ways to obtain the same insights (indeed, the NFL administers the Wonderlic Test in part for that purpose). Taken together, the experiences of draft-eligible players at the combine suggest that the culture of the NFL has not caught up to the times.
NFL rules prohibit discrimination at the combine
NFL team employees who ask prospective players discriminatory questions violate an assortment of NFL rules. For starters, Article 49 of the collective bargaining agreement dictates "there will be no discrimination in any form against any player ... because of ... sexual orientation." Although players at the combine are not yet NFL players—in truth, some of them never will be—they are likely protected by the CBA. In most cases, courts find that rules bargained by unions and players’ associations apply to not only current employees (players) but also to prospective ones. A team employee who discriminates against a prospective NFL player on the basis of sexual orientation would thus have run afoul of Article 49. The league could then sanction him or his team.
Other NFL rules could also be used for punishments. Teams’ employees are subject to the NFL’s constitution, which is a legal document governing the relationship between teams and the league. Under Article VIII of the constitution, NFL commissioner Roger Goodell can “adopt appropriate legal action or such other steps or procedures as he deems necessary and proper” when a team employee is “guilty of any conduct detrimental” to the league, its teams or the sport of football. An employee of an NFL team who uses bigotry to harass a 21-year-old would, seemingly, be engaged in conduct detrimental.
In addition, the NFL has adopted an “Excellence in Workplace Conduct” program for the purpose of establishing norms of appropriate conduct in the workplace. The program stresses that “all NFL players and prospective players have the right to work in a positive environment that is free from any and all forms of harassment, intimidation and discrimination.” With that directive in mind, the program more specifically commands that NFL team personnel who interview draft-eligible players “must not seek information concerning or make personnel decisions based on a player’s sexual orientation.” Although the program doesn’t enunciate any additional methods of punishment, it reiterates the importance of Article 49 (discussed above).
Despite numerous rules that prohibit discriminatory questions, the NFL has not yet publicly imposed meaningful punishments for teams and employees who pose such questions. No draft picks have been forfeited. No one has been fired or (apparently) fined. Perhaps that will change in response to yet another instance of bigoted questions. In the meantime, for a league more than willing to issue punishments over air pressure and tampering controversies, the NFL has curiously shied away from holding accountable those who ask discriminatory questions.
Players might turn to still-developing federal law for protection and remedy
Even if an NFL team were punished for prejudicially questioning a player, the punishment wouldn’t remedy any damage endured by the player. State differently, a team losing a draft pick does nothing for a player who was embarrassed, angered or stigmatized by an offensive question. The same would be true if the league punished the offending employee. A sanction might punish the bully, but it doesn’t help the person he bullied.
To seek a remedy, the player could turn to the courts. “Could” would be a key word. In reality, players eager to join the NFL are unlikely candidates to sue the NFL or any of its teams.
Still, if a player were to consider a lawsuit, he would likely become familiar with Title VII of the Civil Rights Act of 1964. Among other purposes, Title VII commands that job interview questions must relate to an applicant's ability to perform a job. Likewise, these questions cannot discriminate on the basis of protected demographic categories. Those categories include race, national origin, religion and sex.
Sexual orientation is not listed among Title VII’s protected categories. However, some of the 13 federal circuit courts interpreting Title VII have reasoned that discrimination on the basis of “sex” ought to include “sexual orientation discrimination.” In the U.S. Court of Appeals for the Second Circuit, which governs federal courts in the NFL’s headquartered state of New York, sex discrimination is considered unlawful under Title VII. The U.S. Court of Appeals for the Seventh Circuit, which governs Indiana, has ruled similarly. For its part, the U.S. Equal Employment Opportunity Commission (EEOC)—a federal agency that administers and enforces civil rights laws—endorses this more expansive interpretation of “sex discrimination.” Legal experts anticipate that the U.S. Supreme Court could soon review this issue since federal law is now being interpreted differently in different federal circuits.
Separately, a minority player who is asked if his mother is a prostitute might argue that such a question constitutes racial discrimination. Obviously, the question does not relate to the player’s ability to perform as an NFL player. And, arguably, it draws on prejudicial stereotypes.
A player who sought to use Title VII would first file a complaint with the EEOC. After a review by the EEOC, the player could then file a discrimination lawsuit against the coach, team and/or league.
Alternatively, players could turn to more certain state, county and city laws
In addition to federal circuits’ varying interpretations of Title VII, numerous states, counties and cities offer relevant legal protections. The Human Rights Campaign reports that 22 states and the District of Columbia—where the National Football League Players’ Association is headquartered—outlaw sexual orientation discrimination in private sector hiring. While the NFL combine’s host state of Indiana is not one of those states, most NFL teams are located, or at least play, in many of those states: California, Colorado, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Washington and Wisconsin.
The list of counties and cities that have made it illegal for employers to partake in sexual orientation discrimination is even longer. According to the Human Rights Campaign, it includes Indianapolis, as well as Atlanta, New Orleans and Detroit.
A skilled attorney for a player interested in bringing a lawsuit over discrimination would likely identify a sufficient nexus to one or more of these jurisdictions.
Practical difficulties in a player lawsuit
A player suing over his combine experience and winning the lawsuit are two separate issues.
As discussed earlier, a team would insist that any apparent discrimination was staged and “fake”. The team would maintain that bigoted questions were designed not for their answers but rather to make a player feel uncomfortable and see how he reacts. This explanation isn’t terribly persuasive but it would be argued.
In addition, the team would stress that discussions that take place during the combine are not “job interviews.” A team would liken conversations between teams and players at the combine to conversations that occur between companies and candidates at a job fair. To that end, the team would remind a judge that the team must first draft a player before they can hire him. Any player a team speaks with during the combine may or may not be available for selection when the team picks.
A player would also need to establish that he was harmed by the discrimination. To be sure, hearing prospective employers suddenly pose bigoted questions might cause someone anguish and emotional distress. Those types of consequences can be recoverable in a lawsuit. However, a player suffering ordinary embarrassment or awkwardness would not be enough. The player would need to be willing to testify as to the questions’ impact on his psyche or wellbeing, and offer medical evidence too.
It might also be difficult for a player to prove that bigoted questions harmed his NFL career or endorsement opportunities. Where a player is selected in the draft is based on numerous factors that are difficult, if not impossible, to disaggregate. The player might note that defensive end Michael Sam, the first openly gay player to be drafted by an NFL team, was unable to secure a spot on any NFL team’s 53-man roster. However, unless that point of fact could be linked to evidence of discrimination, it wouldn’t carry much weight in court. The inability of the player to prove professional harm would diminish his potential damages.
In reality, a lawsuit along these lines would probably be brought more for public policy goals than for any personal enrichment. For some, that would definitely be worth it.
Michael McCann, is SI's legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O'Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.