Issues raised about pre-draft questions likely to spur reforms
Questions posed to a pair of rookies before draft have raised questions of legality
Players involved have not threatened to sue teams or NFL, but may have grounds
Controversy over questions likely to spur NFL to institute reforms to process
Can NFL teams legally ask prospective draft picks any question, no matter how offensive, during pre-draft interviews?
The last few weeks have revealed two interviews that strike many as objectionable. Namely, Miami Dolphins general manager Jeff Ireland asking Dez Bryant if his mother is a prostitute and an official from the Cincinnati Bengals reportedly asking Geno Atkins if he was straight or gay.
These and similar types of questions could pose legal consequences and possibly lead to reform of pre-draft interviews.
From the standpoint of federal law, Title VII of the Civil Rights Act of 1964 protects job applicants from answering pre-employment questions that are designed or used to discriminate on the basis of race, national origin and certain other protected categories (sexual orientation is not among them). While Title VI empowers employers to test job applicants in a wide-range of ways, questions posed during job interviews must relate to an applicant's ability to perform a job.
Under Title VII, a player would have 300 days from the date of the question to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC enforces Title VII and other anti-discriminatory laws. If Bryant, for example, filed such a complaint, the EEOC would evaluate his charge, interview the relevant persons (including Bryant, Ireland, and other Dolphins officials), and rule as to whether there is cause for a finding of discrimination. Regardless of the EEOC's decision following it, Bryant would have 90 days to file a discrimination lawsuit, most likely in Florida state court. A favorable ruling from the EEOC would aid Bryant in a lawsuit, but would not guarantee victory.
In a lawsuit, Bryant could argue that Ireland's question violated Title VII and related state laws. From a critical perspective, Ireland's question seemed designed to determine the socioeconomic class/culture of Bryant's family and his upbringing. It was also, arguably, race-motivated or at least based on racial stereotypes. In addition, the question seemed unrelated to the job for which Bryant was applying -- to become a wide receiver for the Dolphins.
The Dolphins would likely raise several defenses. First, a pre-draft interview may be legally distinguishable from a job or "pre-employment" interview. After all, the NFL draft is a procedure whereby teams obtain the exclusive negotiating rights to sign eligible football players; teams that draft players thus do not "hire" them for employment, they only obtain negotiating rights to hire them. While this argument may sound like semantics, it could be used to distance Title VII from questions raised during pre-draft interviews.
Second, a question related to a job applicant's socioeconomic class or family culture may be legally distinguishable from one related to his race or national origin. Unlike race or national origin, "class" or "culture" are not, strictly speaking, protected categories.
Third, Ireland's question, while insensitive and regrettable, was seemingly not discriminatory in a racial sense, since Bryant's race was already known prior to the question.
Fourth, the question should be viewed in the context of extensive pre-draft evaluations and the bevy of tests required of potential draft picks. The Dolphins could claim that the question was designed to offend Bryant -- whose personality and character have drawn critique -- and see how he responds, rather than to gain insight about his mother. From that vantage point, the question may have indeed related to becoming a wide receiver for the Dolphins and the temperament and discipline expected of such a player. Many potential draft picks, in fact, are asked offensive or strange questions during pre-draft interviews with team officials. Those questions are poised as much to gauge players' reaction as to learn any information. Furthermore, the Dolphins likely conducted a background check on Bryant that would have revealed information about his family members; to ask him a question about those family members was probably unnecessary for gathering facts.
Even if Bryant were to prevail on the merits of a lawsuit, his damages would not be clear. Bryant, after all, was selected by the Dallas Cowboys 24th overall, four slots before the Dolphins picked at 28. If Bryant was discriminated in his Dolphins interview, the discrimination did not appear to impact his draft status; in fact, he will sign a more lucrative contract by being drafted 24th rather than 28th. On the other hand, the question could have caused Bryant emotional distress, severe embarrassment and other compensable, though statutorily-capped, harms.
While federal law would not provide recourse to a player who is asked about his sexual orientation during a pre-draft interview, laws in many states might. As of a recent count, 21 states prohibit discrimination on the basis of sexual orientation. Some of these states are home to NFL teams: Colorado, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Washington and Wisconsin all feature such laws (Ohio does not).
A team sued for asking about a player's sexual orientation would likely raise similar arguments to those noted above, including that a pre-draft interview should be considered legally distinguishable from a pre-employment interview. A team may also assert that varying states' laws should not apply to internal NFL matters, since it could lead to confusion and inconsistencies among teams in different states. That argument, however, has not yet succeeded in the StarCaps litigation (Williams v. NFL), which concerns whether the NFL can suspend players for failing steroids tests when those tests violated certain rights under Minnesota state law.
While lawsuits brought by Bryant, Atkins and other similarly situated players seem unlikely to materialize, the National Football League Players' Association, which represents the interests of players not yet in the league, could seek better safeguards for the questioning of potential draft picks. Despite its 300-page length and intricate detail, the current collective bargaining agreement between the NFL and NFLPA contains few provisions related to potential draft picks and the pre-draft treatment to which they are subjected. Perhaps the NFLPA could seek greater regulation of pre-draft activities in the next CBA, though such an objective would seem like a low priority relative to other bargaining goals.
The other actor in the room is the NFL, which could fine or suspend team officials under the league's Personal Conduct Policy. While commonly thought of as regulating only NFL players, the Policy governs all employees of the NFL and its teams. The league could reason that offensive questions embarrass the league and offend some persons. Under the idea that the teams are ultimately responsible for their officials' behavior, the NFL could also fine teams or take away draft picks in the following year's draft.
Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also teaches a sports law reading group at Yale Law School.