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Michael Sam Comes Out—Will the NFL Let Him In?

The list of openly gay athletes is short.   Last year, former NBA player Jason Collins announced he is gay. Conner Mertens recently became the first active college football player to come out as bisexual.  Yet Collins was a serviceable journeyman center at best and Mertens is a kicker for the little-known Willamette University. While both men are more than deserving of praise for their courageous acts, they have gone largely unnoticed as players. But the LGBT movement may have just found an all-star figure to truly rally behind in Michael Sam.

Sam is an All-American defensive lineman for the University of Missouri and won the Associated Press’ SEC defensive player of the year award. According to ESPN, Sam had 11.5 sacks, 19 tackles for a loss, and could be drafted as high as the third round.  Sam will most likely be the first openly gay professional football player.

The reaction has been predominately positive, yet Sam remains in a somewhat vulnerable position due to the timing of his announcement. Media frenzies make NFL teams leery. Minnesota Vikings punter Chris Kluwe knows this firsthand. Kluwe, who is first in Vikings history with a 44.4-yard gross punting average, was released last May for what he believes was his public activism for gay rights. Kluwe accused coaches of bigotry and homophobic slurs in an open letter and is considering a lawsuit.

If Sam experiences similar negative treatment, he must face an unclear legal landscape. Article 49 of the NFL collective bargaining agreement prohibits discrimination against employee players based on sexual orientation. However, such “employee players” include “(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.” Thus, prospective players are not protected and Sam would not be able to invoke Article 49 if a team decides to ignore his accolades and pass on him because of his sexual orientation.

An NFL draftee might consider looking to state law, but according to the Human Rights Campaign, there are only 21 states that prohibit employment discrimination based on sexual orientation. As for federal law, there is currently no explicit protection for such discrimination. Title VII, Section 703, of the Civil Rights Act of 1964 prohibits discrimination on the basis of “race, color, religion, sex, or national origin.” Sexual orientation is conspicuously missing from the list.

However, while Title VII does not prohibit sexual orientation discrimination, it does prohibit sex stereotyping. See Castello v. U.S. Postal Service, EEOC Appeal No. 0120111795 (July 22, 2011). According to the Equal Opportunity Employment Commission, “claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII.”  For example, in Castello v. Donahoe the EEOC held that a plausible sex stereotyping claim existed where a complainant alleged she was subjected to “an offensive and derogatory comment about her having relationships with women.” Agency No. 0520110649 (Dec. 20, 2011).

In all likelihood, Sam is going to be the first openly gay player in the NFL.  We will watch all future developments pertaining to his future employment in the NFL

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