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Michael Sam: The Practical and Legal Implications of a Gay Professional Athlete

Protections for individuals against workplace discrimination is an unsettled matter of law. Currently 27 of 32 NFL teams are located in jurisdictions that have laws to protect gays from discrimination.
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Six years ago, I wrote a scholarly article for the University of Pennsylvania Journal of Business and Employment Law. The article, entitled "Not That There Is Anything Wrong With That: The Practical And Legal Implications Of A Homosexual Professional Athlete" explored the primary legal issues that would emerge if a professional sports league ever included an openly gay player.

With last night's news that NFL Draft prospect, Michael Sam, announced to the world that he is gay, it appears that day will soon be upon us.

As I observed at the time, given the large number of individuals who have played professional sports over the years, it was a statistical certainty that those multitudes had included gay men, a fact that was confirmed by several players who came out following their playing careers. The fact that in 2014, a prospective player felt comfortable announcing his sexual orientation to the world is a testament to the progress society as a whole has made on this issue over the last few years, the anti-discrimination policy adopted by the NFL, and most of all, to the courage displayed by Mr. Sam himself.

As I noted previously, protections for gays against workplace discrimination is an unsettled matter of law in many instances. Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of an individual's "race, color, religion, sex, or national origin." While some have tried to argue that the term "sex" should include sexual orientation, such a reading has not been adopted by the courts or the Equal Employment Opportunity Commission, who have interpreted the term narrowly to mean only "gender."

While there have been recent efforts to pass legislation prohibiting discrimination against gays at the federal level, such efforts have stalled and there is currently no protection from employment discrimination nationwide.

Whether or not a gay individual can be subject to bias in hiring, promotion, job assignment, termination and compensation depends largely on the jurisdiction in which he or she works. As of today, 21 states (plus the District of Columbia) have statutes that protect against sexual orientation discrimination in employment in both the public and private sector: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and Wisconsin. Additionally, at least 185 cities and counties prohibit discrimination on the basis of gender identity for both public and private employees.

As a result, 27 of the 32 NFL teams are located in jurisdictions that currently have laws in place that protect gays from workplace discrimination. The five exceptions are the Arizona Cardinals, Carolina Panthers, Houston Texans, Jacksonville Jaguars and Tennessee Titans. (It is worth pointing out that Charlotte, Houston and Arizona have laws on the books that are limited only to public sector employees. Additionally, while the city of Phoenix has a strong anti-discrimination law on the books, the cities of Tempe and Glendale, where the Cardinals are headquartered and play their home games, respectively, do not.)

Thus, if Sam were to find himself employed by one of those five teams, his protection against discrimination would be rooted solely in the anti-discrimination provisions of the NFL's collective bargaining agreement (CBA) with its players. Article 49 of the CBA expressly prohibits discrimination based on sexual orientation, but the prohibition applies only to a "player." The more pressing issue, therefore, is whether the CBA protects undrafted, unsigned players from sexual orientation discrimination. The preamble to the CBA states that the NFL Players Association is recognized as the sole and exclusive bargaining representative of "present and future employee players," which includes: "(3) All rookie players once they are selected in the current year's NFL college draft; and (4) All undrafted rookie players once they commence negotiation with an NFL club concerning employment as a player." The phrase "commencing negotiations" is not defined in the CBA. Thus, it seems that under the terms of the CBA, teams may refrain from selecting Sam solely based on his sexual orientation.

As I concluded in my previous article, while this discussion has centered around the law, practical considerations might be what ultimately dictates how this issue plays out and the result will likely be strongly influenced by the caliber of the player involved. While the reaction in the past 24 hours has been almost unanimously positive (including from current NFL players), it has also been stated that teams will consider the cost/benefit implications of employing the NFL's first openly gay athlete, and that may cause Sam's draft stock to fall. It's probably fair to assume that if Sam was projected as a high first-round pick, most teams wouldn't pass on that kind of talent, whatever perceived side issues it may present. However, given his projection as a mid-round pick, it's not surprising to hear that many teams would select a different player, all else being equal.

February 9, 2014 will be remembered as a momentous day in the history of professional sports and the LGBT movement. While it marks the end of Michael Sam's time in the closet, his story as America's first openly gay football player has much left to be written.

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