Sports Illustrated Column on Legality of Pre Draft Questions in NFL

I have a new SI.com column that looks at whether the legal implications of "offensive" questions asked of players eligible for the NFL draft. Here's an excerpt:

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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.

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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. . . .

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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 . . .

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To read the rest, click here.