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Saturday, May 08, 2010
Sports Illustrated Column on Legality of Pre Draft Questions in NFL

I have a new 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. . . .


Excellent take and discussion on things!

Anonymous Anonymous -- 5/08/2010 8:20 AM  

NFL really entertains me.

Anonymous gih -- 5/08/2010 9:59 AM  

In the first instance, I think Bryant would have a very difficult time getting past summary judgment even without the Dolphins articulating any of the defenses you noted. He's required to at the very least allege that he was rejected for the job and the position remained open after his application or went to someone outside of his protected class. We don't know if he would have been rejected because he was selected by the Cowboys before the Dolphins ever got a pick - he was de facto unable to be rejected by the Dolphins. Secondly, the position he was vying for (presumably defined as a first round draft pick and not his playing position) did not remain vacant - and indeed could not remain vacant - the Dolphins had to select someone. All of the above before the Dolphins get to come back with a nondiscriminatory reason for their actions (i.e. he didn't fit team need, etc etc...).

Unless discovery would produce some very telling depositions - like Ireland telling Byrant "we're never going to pick you" or some other very strong evidence - this never gets past summary judgment. It's likely this would never get past a motion to dismiss and preclude discovery altogether.

Anonymous Anonymous -- 5/08/2010 11:14 AM  

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