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On gay players, league will have to change without litigation that forces it


This week’s flurry of reports regarding quiet curiosity and not-so-quiet interrogation of incoming NFL players on the issue of sexuality represents an obvious symptom of a deeper problem.

Football teams, which notoriously fear the unknown in any shape or form, at best want to know whether there’s a chance that their locker room will be the first one to host an openly gay player. At worst, one or more football teams possibly don’t want any gay players in the building, openly or closeted.

Although sexual orientation is not yet a protected class under federal law, multiple states shield employees who are gay or suspected to be gay from co-worker hostility or tangible job action (e.g., getting fired, not getting hired, or being passed over for a promotion).

The applicable laws have slightly less meaning in this context, because NFL policy expressly prohibits discrimination on the basis of sexual orientation.

Regardless of the laws or rules that would be broken, for the issue to be teed up in a court of law or in a grievance proceeding under the labor deal or anywhere else, someone has to complain. The pool of potential plaintiffs consists not of people walking off the street and filling out an application but only of a relatively small group of individuals who already have worked their way through the lower levels of a similar locker-room mentality.

By the time the remaining 330 players or so are being questioned at the Scouting Combine, they’re each the product of the football machine. And even if they’re troubled by questions about sexuality, what are they going to do about it?

They just want to play football, and to finally get paid for it. If they’re not among the 256 or so who will get drafted, they’ll want to be among the 2,800 or so who will have a chance to win roster spots or practice-squad assignments after offseason workouts, training camp, and the preseason.

Besides, even if a player believes he has been blackballed based on his actual or perceived sexuality, how will he prove that the decision to cut him was influenced by anything other than his actual or perceived football skills, or lack thereof? Evidence like inappropriate questions will help, but a player who doesn’t get a job ultimately will have to persuade a jury that he was better at football than someone who did.

The various factors add up to the reality that litigation, which has forced positive change over the past five decades in so many other workplaces, will likely never happen in the NFL. (If you don’t think litigation effects change, you haven’t noticed the link between the NFL’s effort to protect current players from concussions and the 4,000 or so former players who claim the NFL didn’t do enough to protect them.)

Thus, for change to occur, it will need to come without the expense, annoyance, and worry caused by lawsuits. And that will require, as Jason Whitlock of argued earlier this week, real leadership from Commissioner Roger Goodell.

When it comes to the mentality and antics of the locker room, not enough credit is given to the ability of players to change on their own and/or the ability of teams to change them. The players should be held to a higher standard of conduct and discourse in the locker room, and the teams should be expected to enforce it.

The fact that no gay player in any of the NFL’s 32 workplaces has felt sufficiently comfortable to declare his sexuality means that change hasn’t happened, yet.

Change has happened in countless other workplaces. Thanks in large part to litigation. Litigation the NFL most likely will never face on this issue.

The NFL also will likely never face a backlash from its customers for not creating an environment in which closeted gays will feel sufficiently comfortable to come out. If anything (and based on plenty of the comments posted and emails and tweets we’ve received this week), a team that welcomes an openly gay player could alienate a significant percentage of its fan base.

Thus, the challenge for the league will be to change without a financial incentive to do so. To change not because it’s the expedient thing to do, but because it’s the right thing to do.

Goodell often explains that his staunch willingness to stand on principle comes from his father’s willingness to sacrifice his position as a U.S. Senator in opposing the Vietnam War.

It’ll be interesting to see whether Goodell, who has been silent to date on the subject, is willing to take a stand on this topic, too.