Loaded Question

Asking a draft prospect about his sexual orientation could land a team in a legal minefield
March 25, 2013

In a March 14 letter to NFL commissioner Roger Goodell, New York attorney general Eric Schneiderman inquired why, during last month's scouting combine, several college players were allegedly asked about their sexual orientation. Notre Dame linebacker Manti Te'o denied reports that he had faced such queries, but Colorado tight end Nick Kasa said a team wanted to know if he "likes girls." Kasa's isn't the first case of offensive predraft questioning. In 2010, Dolphins G.M. Jeff Ireland asked Dez Bryant if his mother was a prostitute. (Ireland later apologized.)

The NFL asserts that such questions violate existing league policies and are subject to discipline. A league spokesperson also says that the questioning of prospects was to be discussed at this week's owners meeting.

Are the NFL and the players association doing enough to protect prospects from biased questions? Article 49 of the current CBA declares, "There will be no discrimination in any form against any player ... because of ... sexual orientation." But is a draft prospect who is not yet a member of the NFLPA or of an NFL team—and may never become one—fully protected by Article 49?

Collectively bargained rules generally apply to both current and prospective players, provided those rules primarily affect wages, hours and other working conditions. This is why prospective players are subject to eligibility restrictions and, upon entering the league, a rookie wage scale. But a predraft question about sexual orientation might be viewed legally as happening too early in time to trigger the CBA or as too ambiguously related to working conditions to trigger CBA safeguards.

Prospects can turn to the government or courts if they feel they are being subjected to prejudice, though federal law does not protect private-sector job applicants from sexual-orientation discrimination. According to the Human Rights Campaign, a civil-rights organization working to achieve equality for lesbian, gay, bisexual and transgender Americans, the same is true in 29 states, including Indiana, where the combine is held.

But in Washington, D.C., where the NFLPA is based, and in 21 states, including those that are home to 13 NFL teams, it is unlawful for private employers to discriminate on the basis of sexual orientation. When local laws are taken into account, as many as 25 teams could be barred from asking prospective employees about sexual orientation.

The state with one of the toughest laws against such bias is New York, where the NFL is headquartered. The CBA, which amends the standard NFL player contract, stipulates that New York state law applies when federal law does not. In other words, a prospect who sued the league for discrimination could make a reasonable case.

It's a complex legal landscape to be sure. But one thing is certain: NFL teams would be wise to drop bigoted questions.

PHOTO ILLUSTRATIONPHOTO ILLUSTRATION BY SI IMAGING: CHAD MATTHEW CARLSON (HELMET), AMATHIEU/FOTOLIA.COM (RAINBOW)

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