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Will the Massachusetts Commission Against Discrimination hear from Michael Sam?

Published:  February 12, 2014

When former Missouri defensive lineman and SEC Defensive Player of the Year, Michael Sam “came out of the closet” recently, the majority of the talk has been about how the NFL is not ready for an openly gay player to enter the league. However, I think the NFL is better prepared than the general public will give them credit for, well at least from an employment law perspective.

The NFL is a business and a large employer; and so too are the 32 teams that make up the league. Accordingly, each is subject to Federal, State, and Local anti-discrimination laws; and in regards to the NFL, there is also a collective bargaining agreement in place that provides anti-discrimination protections to the players as well. Because Mr. Sam would be considered an employee of the league, he is protected by these laws. The NFL teams, as employers should already have anti-discrimination policies in place and have properly implemented them. Accordingly, a team should be prepared to handle possible discriminatory allegations that may occur once Sam is drafted by a team. That is, if he gets drafted or even gets a “look” at the combine at all.

Now that Sam is out of the closet all the NFL teams are privy to personal information that they may not otherwise legally be able to collect during an interview (though rumor is scouts have been asking about sexual orientation during interviews for some time). Of course the main question is why does his sexual orientation even matter during a football interview? Who cares?

It matters because in many states, like Massachusetts, sexual orientation is a protected class. Which means an individual cannot be discriminated against on the basis of his sexual orientation. These protections are also afforded the employee, during the hiring process. The NFL and the teams within the NFL enterprise are all FOR-PROFIT businesses, and each of the teams cares about being sued by a prospective player. Accordingly, Sam could get shut-out at the NFL combine because the teams’ attorneys may be whispering in the ear of the owners “potential lawsuit.” It sounds offensive, but they would be correct. Because Sam went to the media with his declaration; the teams have all been put on notice about his sexual orientation. See Connecting Point interview regarding potential dangers of Social Media in the Workplace. He may not get a look at the combine, because if any of the teams interview Sam and choose not to select him for their team, they could be facing a sexual orientation discrimination lawsuit. Even if the team’s home city or state does not recognize sexual orientation as a protected class, once the team interviews Sam, he is protected by the NFL collective bargaining agreement.

However, the team can protect its interest in not facing a lawsuit and still interview Sam, by having or implementing clear anti-discriminatory hiring policies and by properly evaluating Sam without regard to his sexual orientation, as it does non-gay potential players. Documenting the process along the way is imperative to assure that the team would have the evidentiary means to support its non-discriminatory hiring practices, if necessary.

Ultimately, because of the publicity, for a team thinking about interviewing Sam, it will probably be a cost-benefit analysis. Does the potential value Sam brings to the team outweigh the cost of an impending law suit if the team chooses not to draft him; or if he gets cut shortly thereafter? Is a second-round draft pick worth taking the risk of a lawsuit? Some say no, however, what would Bill Belichick say? Tom Brady was drafted in the sixth round.

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