Legal Look: Where Michael Sam and the NFL go from here

Eric Macramalla
2/12/2014 4:30:23 PM
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On February 9, 2014, Michael Sam publicly declared he was a homosexual.

The Missouri Tigers Defensive End and SEC Defensive player of the year is eligible for the upcoming NFL draft in May.

The watershed announcement gives rise to a bit of a legal minefield and the league and teams will look to ensure that no lines are crossed.

Let's break it down.

Does the NFL have any rules any place protecting homosexuals from discrimination?

They do have protection for homosexual players, although it won't apply unless Sam gets drafted.

Article 49 of the NFL Collective Bargaining Agreement provides that you can't discriminate against a player on the basis of "race, religion, national origin" or "sexual orientation". The reference to "sexual orientation" is brand new in the CBA, and the other 3 major sports also have a similar provision.

Here's the catch: the CBA won't apply to Sam if he's not drafted. While the CBA provides that it covers all "present and future" players, it still restricts that player pool to drafted rookies or undrafted players who are negotiating with a team. If undrafted, Sam wouldn't qualify as either type of player.

So that means if Sam goes undrafted, the NFL CBA won't apply to him.

Is that it? Is there nothing else protecting a player like Sam?

There is, but it's not perfect. There's no federal law prohibiting discrimination based upon sexual orientation. The existence of such a law would be ideal for Sam since it wouldn't matter where he would end playing since a federal law covers the entire country.

There are laws at the state level, although not every state has them. In all, 21 states have laws on the books that prohibit discrimination based on sexual orientation in the context of private employers. So that shakes out to 27 of the 32 NFL teams being the subject of gay employment protection laws.

So which teams are in states where there aren't state or other local laws protecting gay people?

The five teams are as follows: Carolina Panthers, Jacksonville Jaguars, Houston Texans, Arizona Cardinals and Tennessee Titans.

Here's the big question: if Michael Sam is not drafted, can he sue and win?

Indeed, that is the big question. Sam is projected to be a mid to late round pick.

In order to be successful in a lawsuit against the league he will need to show that he was not drafted because he is a homosexual. That can be tough in the context of a draft – even if it is true. We have seen the draft stock of players inexplicably drop in all the sports. We routinely see players drafted a lot later (or earlier) than projected. Apart from the top prospects, drafts can be highly unpredictable. Indeed, drafts are complicated beasts and it can be hard to show that a player wasn't drafted simply because he is gay.

To have a shot at winning a lawsuit, Sam would need strong evidence supporting his case. He would be looking for things like incriminating statements or emails that provide that a team conspired not to draft Sam because of his sexuality. That may not be easy to find. Teams may pass on Sam because he is gay, but just never say it.

Ultimately, Sam would need a smoking gun, and absent that he would have a tough time winning a lawsuit.

Do you think teams will take a pass on Sam because he's gay?

Reason would suggest that some teams may shy away from Sam because he is gay. From a philosophical standpoint, some executives may not be comfortable with the idea of a gay player. Other teams may not have an issue with his sexuality, but may still take a pass because they fear he will become a distraction. Indeed, we have already heard anonymous executives express this sentiment.

While some may believe he could become a distraction, and by extension adversely affect his team, it seems unlikely to be the case. The NFL is filled with real and legitimate distractions: DUIs, domestic violence, vehicular manslaughter, murder and whatever Dez Bryant did last Sunday. None of these events have led to the downfall of a team or the demise of the league.

And most certainly something as innocuous and irrelevant as a player's sexuality won't become a problem.

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