A quirk in the American legal system means that NFL teams are governed by differing laws on the level of intrusive questioning they can impose on potential draft picks such as Manti Te'o.
Te'o's sexuality has been the subject of much debate following the fallout of the Notre Dame defensive star's hoax girlfriend saga that thrust him into a storm of media attention and, unfortunately, public ridicule.
One NFL insider, NBC Sports' Mike Florio, said Monday that several NFL organizations would like to know whether the powerful Hawaiian linebacker is gay, describing the matter as the "elephant in the room."
However, a number of NFL executives told Yahoo! Sports' Michael Silver that in interviews with Te'o they did not ask him about his sexuality.
Which NFL franchises can and can't ask a player if he is gay?
Green Bay Packers
New England Patriots
New York Giants
New York Jets
Kansas City Chiefs
San Diego Chargers
San Francisco 49ers
New Orleans Saints
St. Louis Rams
Tampa Bay Buccaneers
Yet as much as teams may or may not want to know the details of Te'o's private life, sexual orientation rights vary from state to state and are not governed by United States federal legislation. As such,13 of 32 NFL franchises are prohibited by law from discrimination based on sexual orientation. In other words, they can't ask Te'o if he's gay.
"No, we stayed away," one NFL executive told Silver at the NFL Combine in Indianapolis. "We didn't care, really. We just wanted to get the story straight."
However, that executive was left with little choice if he wished to remain within the confines of employment and privacy law, as the team he works for is one of the 14 franchises from a state that protects sexuality rights under state regulations.
The NFL confirmed on Tuesday that it has no direct policy on the line of questioning teams and their officials can undertake, stipulating only that they adhere to relevant employment laws. That has led to a series of probing questions ranging from the offensive – when Dez Bryant was asked if his mother was a prostitute by Miami Dolphins GM Jeff Ireland – to the bizarre, when Tampa Bay Buccaneers Gerald McCoy was quizzed by a potential employer over his choice of underwear.
"Teams are expected to comply with the law in terms of any employment interview," NFL spokesman Greg Aiello told Yahoo! Sports in an email on Tuesday.
This, however, creates an imbalance. While federal law protects certain characteristics from discrimination, such as race, gender, religion or belief and disability, it "has been slow to catch up on aspects like sexuality," according to Professor Dylan Malagrino, a sports law expert from Western State University College of Law, in Fullerton, Calif.
"There is no federal protection and it has become a state law matter," added Malagrino. "Some states, like California and Minnesota, have been very proactive. But some states there is no protection at all, and teams in theory could ask inquisitive questions into someone's private life and sexuality."
Most nations have codified national laws that govern such protections and restrictions. Europe, for example, has a broad range of human rights legislation that would make it virtually impossible for an employer within a European Union country to pose such a question without risking sanction.
"American law on this matter is like a crazy quilt," said Matthew Finkin, professor of law at the University of Illinois and author of Privacy in Employment Law, which tackles equality in American employment on a state-by-state basis. "The southern states are generally seen as being very employer friendly, whereas the west coast is seen as being more favorable to the employee, partly due to strong unions and such."
Other legal vagaries affect other matters; certain states permit clauses whereby an employer can ask for access to a potential employee's social media accounts, whereas others do not.
However, both professors agreed that if the NFL implemented a certain policy, it would be binding on all teams and end the split-treatment.
But what about when the interview is taking place outside the state in which the team is situated?
"Most likely the company or the team would just have to abide by the laws of the state in which they are based," Malagrino said. "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."
"There has been almost no litigation on situations crossing state borders in that way," added Finkin. "Although, for example, if an Illinois company is speaking to a candidate for a position that will be based in Illinois, then Illinois law should be binding, wherever the interview takes place."
Incidentally, the state of Indiana where the combine took place, only prohibits discrimination based on sexual orientation in public employment; private sector companies such as the NFL are unrestricted.
Prospect Nick Kasa, a tight end from Colorado, told ESPN Radio Denver that teams asked him about his sexual orientation, though in a veiled way.
"[Teams] ask you like, ‘Do you have a girlfriend?’ Are you married?’ Do you like girls?’ " Kasa revealed. "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."
Homophobia in the NFL has increasingly become a hot talking point, never more so than when San Francisco 49ers cornerback Chris Culliver told a radio show during Super Bowl week that gay players would not be welcome in his team's locker room.
That viewpoint was subsequently retracted, albeit rather unconvincingly, and denounced – with several players around the league adamant that an openly gay player would not only be tolerated but fully accepted.
Arian Foster, DeMarco Murray and Dwayne Bowe all told Yahoo! Sports that gay players would find acceptance and respect for their bravery in coming out publicly.
Te'o performed poorly at the scouting combine, and expectations are that the former top-10 projected pick will have slid down the draft boards of several teams.
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