How Long Can the NFL Get Away with Asking Future Employees if They're Gay?

Now that National Football League executives are asking players about their sexual orientation — not just wondering in the shadows about Manti Te'o but grilling them in job interviews — it may be time for the commissioner to do something. It may even be breaking the law.

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Now that National Football League executives are asking players about their sexual orientation — not just wondering in the shadows about Manti Te'o but grilling them in job interviews — it may be time for the pro sport with the worst reputation about equality in the locker room to finally do something about its big gay problem. It may even be breaking the law.

University of Colorado tight end Nick Kasa, projected to go in the fourth or fifth round of the NFL Draft in April, said in an interview on Tuesday that NFL general managers had been asking more or less outright whether he was gay. "[Teams] ask you like, 'Do you have a girlfriend?' 'Are you married?' 'Do you like girls?'" Kasa told ESPN Radio Denver's CJ & Kreckman. "Those kinds of things, and you know it was just kind of weird. But they would ask you with a straight face, and it’s a pretty weird experience altogether."

This week at the NFL combine, the annual gathering of rookie prospects in advance of the draft in which teams evaluate players' talent, NBC News's Mike Florio reported on "the elephant in the room" for NFL GMs, who "want to know whether Manti Te'o is gay." That ignited a huge firestorm of criticism against the league, which has failed to speak out publicly despite its players making offensive comments about gays in the locker room — even before the fake-girlefriend scandal plagued rookie-to-be Te'o, who has denied that he is gay. But Florio stopped short of saying whether or not teams were explicitly asking Te'o if he's gay or not, and whether it was actually affecting their decisions — "I'm not saying anyone would take Manti Te'o off the board if they suspected he's gay or know he's gay," Florio said, though presumably Te'o might still move up and down the draft position board.

Now that at least one player has confirmed that he's been asked if he likes girls — not exactly "Are you gay?" and not exactly affecting his draft status, but pretty exact and pretty bad — we're one step closer to questions that could force the NFL to budge: Are teams in violation of the league's collective bargaining agreement? Of the law? Or is the willful ignorance enough to step around both? In the last edition of the league's CBA, sexual orientation was added to the no-discrimination section. Under Article 49, Section 1, it reads:

“No Discrimination: There will be no discrimination in any form against any player by the Management Council, any Club or by the NFLPA because of race, religion, national origin, sexual orientation, or activity or lack of activity on behalf of the NFLPA.”

So it's up to the league to decide whether or not it is discriminatory to ask if a would-be employee likes girls, or to snoop around about a former Notre Dame student who had a made-up social-media girlfriend. But the collective-bargaining clause could also be seen as a provision of state law, which the NFL can't govern. The league has no policy on what kind of questions can be asked of players in combine interviews. According to the NFL, teams must adhere to their state's privacy laws. "Teams are expected to comply with the law in terms of any employment interview," NFL spokesman Greg Aiello told Yahoo! Sports yesterday. That sounds like the NFL is passing the buck to state legislation on sexual orientation discrimination, despite their own policy. By that logic, only 13 of 32 NFL teams are barred from asking about a player's sexual orientation, and the rest are free to practice possibly-homophobic hiring practices as the NFL commissioner looks the other way.

According to experts, the confusion over the interviews highlights a larger problem with who or what presides over the NFL combine interviews. "Most likely the company or the team would just have to abide by the laws of the state in which they are based," Western State University sports-law professor Dylan Malagrino told Yahoo! Sports. "Although it highlights the confusion that these gaps in the law can cause – a company from Georgia could ask questions of an interviewee in California that a Californian company could not."

For some, the league is missing a huge opportunity to advance their position on gay rights. They missed the first obvious opportunity, according to Fox Sports' Jason Whitlock, when they didn't suspend San Francisco 49ers cornerback Chris Culliver for his anti-gay comments before the Super Bowl. Two months later, this is NFL commissioner Roger Goodell's big opportunity to "free the gays," as Whitlock puts it. Whitlock played college football himself at Ball State University, and said the football locker room was usually a place where homophobia ran rampant. They "wore our homophobia like a badge of honor," he says. But if there was ever a time to stamp out behavior like the stuff he experienced in the locker room, says an enlightened Whitelock, it's now:

There’s a terrific opportunity here for Goodell. He can make the NFL a zero-tolerance zone for homophobia. He can use the weight of his office and the power he wields because of the player-conduct policy to go after players and organizations that tolerate any form of sexuality discrimination. He could send a clear message the NFL commissioner is a friend to gays and will take every possible action to ensure they’re treated fairly. Goodell can create an environment that entices a closeted gay player to come out and be the hero/role model gay kids, parents of gay children and overgrown idiots need.

You Can Play is an organization whose sole purpose is combatting homophobia in sports. They make videos with outspoken athletes and celebrities advocating for gay acceptance in the locker room. Their motto is "If you can play, you can play." Simple, right? No NFL team or NFL athlete has produced a You Can Play video yet. The group's latest video, released this morning, was from current Billboard Hot 100 chart topper Macklemore:

So for the gay-rights community, there hasn't been much to smile about from a week's worth of the NFL's continuing big gay problem. Unless you count the 13 football teams from states that protect equal-employment rights for sexuality. Or unless you find a funny hypocrisy in the whole thing, as  OutSports' blogger Jim Buzinski did:

It shouldn’t matter one way or the other what sexual orientation Kasa [is], but NFL teams are obsessed with knowing everything about a player. And let’s say it — the Combine is really gay, in a stereotypical sense. You have a bunch of men standing around watching other men being weighed, doing bench presses, running, throwing and jumping, all wearing skimpy, tight-fitting clothing. When Kasa was asked, “Do you like girls,” his response should have been, “Do you? Not that’s there’s anything wrong with that.”

And yet, a player's sexual orientation is still an issue. Whether or not the league will choose to act on their existing policy, or whether they will clarify what if off limits in combine interviews in the future, is probably up to Commissioner Goodell.

Update 6:29 p.m.: The NFL is now investigating which teams asked about Kasa or Te'o's sexuality and promises to punish them accordingly.

This article is from the archive of our partner The Wire.