Why Michael Sam Better Be Drafted
As the exciting news broke about college football star Michael Sam coming out in advance of the NFL Draft, a lot of attention turned to how his announcement might affect his draft position. I say “might” somewhat optimistically, because a Sports Illustrated report said that all eight team representatives who spoke with them said that Sam’s bravery would cost him draft position. In another report, one general manager flatly predicted that Sam -- a projected third or fourth round pick before Sunday’s announcement -- would see all seven rounds conclude and not even become “Mr. Irrelevant,” the traditional tag applied to the 224th and final player drafted.
Michael Sam is a highly qualified gay man looking for a job. If the most pessimistic of the predictions comes true, Sam would be the victim of employment discrimination. How different would his position be from other gay or lesbian job seekers in Missouri or his home state of Texas, two of the 29 states without statutes prohibiting sexual orientation employment discrimination?
The biggest difference could be this provision in the NFL Collective Bargaining Agreement (“CBA”): “There will be no discrimination in any form against any player by . . . any Club . . . because of race, religion, national origin, sexual orientation . . .” If the CBA provision is unavailing,  Sam could invoke the state antidiscrimination statute in New York, the site of the draft, to hold all the discriminating teams accountable. If that doesn’t work, 13 of the 32 teams in the NFL are in states with nondiscrimination statutes. To hold the other 19 teams accountable, he could turn to local ordinances and quickly have to wrestle with the absence of ordinances in Charlotte, Nashville, and Jacksonville. Also, while Atlanta and Washington D.C. have nondiscrimination ordinances, they may not help, given that the Washington NFL franchise headquarters is in Virginia, whose legislature makes local governments ask permission to enact nondiscrimination laws and always responds “no.” Atlanta caps the damages available for discrimination at, well, zero – which may not matter since the Falcons headquarters is not in Atlanta but in a town called Flowery Branch.
Michael Sam actually has the decided benefit of any discrimination being played out on a public stage. When most people get passed over for a job, establishing discrimination can be challenging; a newly-minted MBA isn’t on the ESPN analyst Mel Kiper Jr.’s draft board laying out her comparative strengths and weaknesses against the other grads gunning for that sweet job at Accenture. But if Michael Sam’s name isn’t called by NFL Commissioner Roger Goodell and Co. on May 8, 9 or 10, the discrimination will be so obvious that the denialists - these anonymous team officials now denigrating the Southeastern Conference co-defensive player of the year – won’t be able to convince anybody of anything.
Could there be a more teachable moment than this (hint: it’s not about locker rooms or football)? We need a clear federal law that prohibits discrimination on the basis of sexual orientation, gender identity and expression that applies to all employers and job seekers across the country. Congress should pass the Employment Nondiscrimination Act (ENDA) now.
But let’s be clear: even if Michael Sam’s name is called on Day One of the draft, that doesn’t mean that discrimination hasn’t occurred, it just means that one team got several others off the hook. And I’m referring to the ones that are freely, if anonymously, admitting to reporters that they are dropping Sam from their draft boards after the announcement. Perhaps the best illustration of the problem is the assessment from one assistant coach that coming out right now was "not a smart move" because it "legitimately affects [his] potential earnings."
Discrimination often does affect its targets’ earning potential but never does so “legitimately.” And in this sense, everyone can benefit by a discussion of what discrimination is: Discrimination is when an employer passes over a potential employee based solely on one characteristic of a job applicant that has nothing to do with the applicant’s ability to do the job.
If you’re wondering what’s motivating the knee-jerk whispering campaign claiming that Sam’s presence will be distracting and disruptive, let’s put that to rest: his coming out to his Mizzou teammates in August, right before the 2013 season, turned that team upside down. Their SEC record was 2-6 in 2012, and 7-1 in 2013. In 2013, they went 12-2, won the Cotton Bowl and finished ranked fifth in the nation in both major polls. Seems to me there are several NFL teams who might need that kind of distraction and disruption.
 Some have raised questions about whether a draft entrant qualifies as a “player” protected by the CBA nondiscrimination provision. But making that argument could lead to public relations and legal problems for the league, which has beaten back legal challenges to the draft by convincing courts that draft entrants’ interests were protected by the union, and thus the CBA immunized the league from antitrust claims. Clarett v. NFL, 369 F.3d 124 (2d. Cir.2004).
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