Photo credit: https://www.flickr.com/photos/ajguel/

Photo credit: https://www.flickr.com/photos/ajguel/

By Janet Akinola*

Gay athletes have come out previously, but typically after they have retired from their respective sports.[1]

Michael Sam’s Story

On February 9, 2014, Michael Sam created a turning point in sports history when he announced his homosexuality to the world.[2]  Although not his original intention, Sam announced his homosexuality before the NFL draft.[3]  Sam, an openly gay football player, was drafted to the NFL on May 10, 2014.[4]  Michael Sam was ultimately cut from the Dallas Cowboys despite the team’s need for a high caliber defensive end. [5]

According to NFL policy, Sam’s sexual orientation should not be a factor in his consideration for being drafted.[6] The NFL policy caused worry among some state legislatures that lacked anti-discrimination laws. [7]  In response, NFL Commissioner Roger Goddell spoke out by praising Sam’s ability to share his truth, and reminded teams of the nondiscrimination policy.[8]  The NFL made it clear that although the state law may allow teams to exclude Sam based on his sexual orientation the league would not allow such discrimination.[9]  In an effort to protect Sam from extreme scrutiny, Commissioner Goddell stated that “[c]oaches, general managers[,] and others responsible for interviewing and hiring draft-eligible players and free agents must not seek information concerning or make personnel decisions based on a player’s sexual orientation.”[10]

Sam’s story could very easily serve as a warning to future athletes to keep their sexual orientation under wraps, if they want to make it to the major leagues.[11]  The mental stress that Michael Sam experienced due to the negative feedback caused him to step away from the game he loves.[12]

The Failure of a Saving Grace

In 2014 the Senate attempted to find a solution to the ever-growing issue of employment discrimination.  The proposed Employee Nondiscrimination Act “[p]rohibits covered entities (employers, employment agencies, labor organizations, or joint labor-management committees) from engaging in employment discrimination on the basis of an individual’s actual or perceived sexual orientation or gender identity.”[13]  The Equal Employment Opportunity Commission (hereinafter “EEOC”) would have enforced the act, along with Title VII of the Civil Rights Act of 1964 (protecting against discrimination on the basis of race, color, religion, sex, and national origin) and the Americans with Disabilities Act of 1990 (protecting against discrimination against workers with disabilities).[14]  Two earlier versions also failed be passed into law, first in 2009 and then in 2011.[15]

The Current Rulebook

Twenty-one states and the District of Columbia and nearly 200 municipalities have such nondiscrimination laws.[16]  Currently, twenty-seven of the thirty two NFL teams are in jurisdictions that have some sort of state or local law prohibiting discrimination against gay employees.[17]  Similarly, only sixteen of thirty NBA teams are in states that have legislation banning sexual orientation discrimination.[18]

The major sports leagues have antidiscrimination policies.[19]  In 2011, the NFL and NFL Players Association added an anti-discrimination policy to their latest collective bargaining agreement.[20]  In 2013 the NFL also revised its antidiscrimination policy with a focus on sexual orientation.[21]  The NFL has even posted an “Excellence in the Workplace: Sexual Orientation” poster in all of the team locker rooms with the objective of informing players and staff of the need for tolerance.[22]

Although most teams have a policy against sexual orientation discrimination, the Collective Bargaining Agreements may not have as much protection.  The NFL Collective Bargaining Agreement (“CBA”), Article 49, prohibits discrimination of “players” based on sexual orientation, but this does not necessarily cover potential draftees.[23]  Similarly, the MLB’s attempt to protect against sexual orientation discrimination with their new policy may be thwarted by their CBA.[24]

According to the NFL policy, “[a]ny jokes, comments or pranks regarding a co-worker’s sexual orientation, such as giving someone a sexual gag gift or having entertainment of a sexual nature take place to celebrate an employee’s birthday, etc.” are considered forms of harassment.[25]  Any player found to have engaged in harassment could be fined or suspended, “depending on the facts,” said Greg Aiello, NFL senior vice president of communications.[26]

If a player feels that he has been discriminated against, he must file a complaint with the union and the union will then bring a claim against the league.[27]  When the union files a grievance with the league on behalf of the player, the possibility of arbitration arises, which eventually will lead to a penalty for offending player or team involved.[28] The NFL has said it will do its best to maintain confidentiality for those who report sexual discrimination and it prohibits retaliation against any person who, in good faith, makes or assists in making a complaint under the NFL’s policies.[29]

The NBA policy, while less extensive and certainly less focused on sexual orientation, provides a general umbrella policy against discrimination.[30]  Similarly, MLB Commissioner Bud Selig has said that the organization has a zero-tolerance policy for harassment and discrimination based on sexual orientation, “both on the field and away from it.”[31]

The Ease of Discrimination and The Need for a Helping Hand

Evaluating the draft potential or position of athletes can be difficult to predict. This difficulty can make it hard to figure out whether a player has been discriminated against or simply because they were not a good fit for the team.  A team sport player draft, such as the NFL or NBA draft, is a game of chance for players and is difficult to get down to a science.[32]  Because teams generally choose players based on need, there is some natural predictability for the top athletes, but at the lower rounds, it may be difficult to understand the logic behind selecting certain players compared to others.[33]  For example, the NFL is likely to have upwards of 1,500 potential draftees but only 256 slots available; most hopeful draftees will be sent home empty handed.[34]  With those odds, it would be extremely difficult to prove that a player was shunned, unless he was amongst the few that shined the brightest.[35]

It is important to understand that there is a level of difficulty in determining whether a player has been discriminated against based solely on sexual orientation before they have entered the sport.[36] There are hundreds of talented athletes that do not get the chance that they desire to play pro sports and if teams have so may options, it may be hard to pinpoint why a person was cut. If an athlete announces his/her sexual preference while actively playing sports, signs of discrimination may be more glaring.


 

* Staff Writer, Jeffrey S. Moorad Sports Law Journal; J.D. Candidate, May 2017, Villanova University Charles Widger School of Law.

[1] See Andreas Hale, Homophobia in Sports: The Other Don’t Ask Don’t Tell, Black Enterprise (July 25, 2011), http://www.blackenterprise.com/lifestyle/homophobia-in-sports/ (explaining reasons why athletes come out after retirement).  Jerry Smith (NFL), Roy Simmons (NFL), Billy Bean (MLB), Glenn Burke (MLB), Will Sheridan (NCAA), and John Amaechi (NBA) all announced to the public that they were gay once their athletic careers had ended.

[2]See John Breech, Michael Sam’s Original Plan Was to Come Out as Gay After NFL Draft, CBS Sports (May 15, 2014, 2:50 PM), http://www.cbssports.com/nfl/eye-on-football/24563698/michael-sams-original-plan-was-to-come-out-as-gay-after-nfl-draft (detailing Michael Sam’s coming out experience).

[3] See id.

[4] See Renee Graham, Michael Sam Didn’t Let Down the LGBTQ Community, Boston Globe (Aug. 24, 2015), https://www.bostonglobe.com/opinion/2015/08/23/matters-sexuality-sports-teams-still-lag/sAwlAUdIuzcLer4vShxvEN/story.html (detailing Michael Sam’s NFL draft experience).

[5] See id. (detailing Michael Sam’s experience with Dallas Cowboys).

[6] See Randy Covitz, Missouri May Lack Law, But NFL Says Teams Must Follow Its Non-Discrimination Policy, Kansas City Star (Feb. 14, 2014, 12:52 PM), http://www.kansascity.com/news/local/article339157/Missouri-may-lack-law-but-NFL-says-teams-must-follow-its-non-discrimination-policy.html (discussing NFL’s efforts to protect Michael Sam from discrimination).

[7] See id. (discussing Missouri’s reaction to Sam being drafted to the Rams).  Notably, Missouri U.S. Senator Claire McCaskill expressed that the Chiefs and St. Louis Rams “both could legally say they [did not hire] Michael Sam because he is gay.”  Id. (quoting Sen. McCaskill).

[8] See id. (explaining NFL’s response to discrimination from Missouri). Commissioner Goodell praised Sam’s actions stating, “[h]e’s proud of who he is and had the courage to say it. Now he wants to play football. We have a policy prohibiting discrimination based on sexual orientation. We will have further training and make sure that everyone understands our commitment. We truly believe in diversity and this is an opportunity to demonstrate it.”  Id. (quoting Goodell).

[9] See id. (discussing NFL’s stance on sexual orientation discrimination).

[10] Id. (quoting NFL League Directive on sexual orientation discrimination).

[11] See Daniel Geffre, Coming Out Before the Draft Pushed Michael Sam to Early Retirement, The Daily Wildcat (Sept. 11, 2015, updated Sept. 30, 2015, 1:30 PM), http://www.wildcat.arizona.edu/article/2015/09/column-coming-out-before-the-draft-pushed-michael-sam-to-early-retirement (explaining difficulties Michael Sam faced being openly homosexual athlete in NFL draft).

[12] See id. (explaining Michael Sam’s reasoning for take a leave of absence from playing football).

[13] Employment Non-Discrimination Act of 2013, S. 815, 113th Congress (2013), availble at https://www.congress.gov/bill/113th-congress/senate-bill/815 (laying out purpose of ENDA).

[14] See id.

[15] See S. 815 (113th): Employment Non-Discrimination Act of 2013, Govtrack.us, https://www.govtrack.us/congress/bills/113/s815.

[16] See Ian Gordon & Matt Connolly, Can the NFL Discriminate Against a Gay Player, Mother Jones (Feb. 12, 2014, 6:00 AM), http://www.motherjones.com/politics/2014/02/michael-sam-nfl-gay-nondiscrimination-law.

[17] See id.

[18] See David Badash, LGBT Org: ’16 Of 30 NBA Teams Are In States That Allow Anti-Gay Workplace Discrimination’, The New Civil Rights Movement (May 1, 2013), http://www.thenewcivilrightsmovement.com/lgbt-org-16-of-30-nba-teams-are-in-states-that-allow-anti-gay-workplace-discrimination/politics/2013/05/01/66193 (counting number of NBA teams in states with sexual orientation discrimination laws).

[19] See Gordon & Connolly, supra note 16.

[20] See id.

[21] See NFL to Reinforce Policy, ESPN (Apr. 25, 2013), http://espn.go.com/nfl/story/_/id/9210388/nfl-reinforce-anti-discrimination-policy.

[22] See NFL,  The NFL’s Ongoing Commitment to Excellence in Workplace Conduct: Sexual Orientation, available at https://nfllabor.files.wordpress.com/2014/02/nfl-ewc-sexual-orientation.pdf (last visited Feb. 15, 2016) (NFL sexual orientation discrimination post).

[23] Scott James Preston & Michael Gregg, A New Era: Understanding the

Legal Rights of Homosexual Players In Professional Sports, 25 no. 8 Westlaw J. Ent. Indus.. Oct. 2013, available at https://www.littler.com/files/press/pdf/Preston-Gregg-New-Era-Understanding-Legal-Rights-Homosexual-Players-Professional-Sports-October-2013.pdf (quoting NFL CBA).  However, “player” is left undefined by the CBA.  See id.  Therefore it would be difficult to include a potential draftee under the CBA.

[24] See id.

[25] See Covitz, supra note 6.

[26] See id.  For example, in November 2013, Miami offensive lineman Richie Incognito, an instigator in a bullying incident involving a teammate, received the maximum penalty and was suspended without pay for four games (and eventually was deactivated for the remaining four games of the season).

[27] See Gordon & Connolly, supra note 16.

[28] See id.

[29] See id.

[30] See NBA’s Non-Discrimination Policy, available at http://www.nba.com/careers/policy.html (last visited Feb. 15, 2016).

[31] See Molly Duerig, Major League Baseball Includes Sexual Orientation in its Anti-Discrimination Policy, Women;’s Law Project Blog (July 17, 2013), https://womenslawproject.wordpress.com/2013/07/17/major-league-baseball-includes-sexual-orientation-in-its-anti-discrimination-policy/.

[32] See Chris Chase, The NFL Draft is Awful; the NBA Draft is So Much Better, USA Today (June 25, 2015), http://ftw.usatoday.com/2015/06/nba-draft-better-than-the-nfl-draft-what-time-does-it-start (explaining unlikelihood of being selected during team sport draft).

[33] See id.

[34] See The Rules of The Draft, NFL Football Operations, http://operations.nfl.com/the-players/the-nfl-draft/the-rules-of-the-draft/ (last visited Feb. 15, 2015).

[35] See Chase, supra note 32.

[36] See Andrew Smith, Sexual Orientation Discrimination in Sport, Law In Sport (June 11, 2013), available at https://www.matrixlaw.co.uk/uploads/other/03_09_2013_03_18_15_Sexual%20Orientation%20Discrimination%20in%20Sport.pdf (explaining difficulty of perceiving sexual orientation discrimination in sports).

 

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