NFL adds ‘sexual orientation’ to anti-discrimination language in new CBA

While the public focused on the major financial issues resolved in the new NFL collective bargaining agreement—revenue sharing, the salary cap, and a rookie wage scale—one change was the most newsworthy in my view: adding “sexual orientation” to the list of classifications protected from discrimination.

The language from the 2006 Collective Bargaining Agreement Article VII, Player Security, reads :

Section 1. 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 or activity or lack of activity on behalf of the NFLPA.

The new language in the 2011 CBA, now moved to Article 49, reads:

Section 1. 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.

(For a little linguistic aside, note the addition of the serial comma prior to “or activity or lack of activity on behalf of the NFLPA.”  While this could just be a stylistic change in drafting to include the comma, which is best, I need to add—I didn’t check any other lists of more than three items anywhere else in the document for consistency—it makes me chuckle a bit thinking that someone may have insisted on adding the comma to clarify that it wasn’t “sexual orientation or activity” that was being protected.)

Anyway, I remember reading the language in the 2006 CBA a few years back and hoping that this change would be made in the new agreement.  In fact, if I may, in my second post on this blog, on November 7, 2009, I asked the question, “What will it take for an athlete to come out?” writing that one of five necessary developments would be increased support from sports organizations.

In that post, I wrote:

I understand that the sports industry is a money-making machine and that each league and team fears supporting gay rights would affect their bottom line.  But what about the player’s associations?  Do they have to wait for a player to come out in order to press for discrimination protections to be incorporated into the collective bargaining agreements? Obviously, they could do it now; there is just no pressure to do so.  They act on what they know their players want, and without a player stepping forward for protection of gay players, they have nothing to act on.  Maybe I’m too much of an idealist, but I’d think an organization with the purpose of protecting the interest of its members may act on the behalf of a silent minority.  Maybe they haven’t thought about it.

Fast-forward to 2011 and it happened.

Honestly, with the focus of the lockout and labor negotiations being on so many financial matters, I did not expect any progress to be made on the issue.  (It’s partially the reason I didn’t compare the language—which has been available for weeks now—until now.)

With that, I obviously was curious how it came to be.

Could it have been New England Patriots Owner Robert Kraft?

After all, Kraft was one of the most integral parties in the CBA negotiations and has a history of supporting the LGBT community.  Yahoo! Sports wrote an incredible piece about Kraft’s involvement in securing the new CBA, passing along this great bit: Indianapolis Colts General Manager Bill Polian wrote a letter to Kraft which read, “This CBA, and the great future it provides to the NFL, would not, could not have been done without you. Everyone in the league owes you a debt of gratitude.”  Kraft’s support of the LGBT community has been documented before by this blog.

Maybe it was Ted Olson and David Boies?

Olson and Boies are the two lead attorneys of the case challenging the anti-gay Proposition 8 in California.  They also were on opposite sides of the NFL negotiations (Boies with the owners and Olson with the players).

Could it have been Scott Fujita?

After all, Fujita is the NFLPA rep for the Cleveland Browns and is one of the most outspoken LGBT allies in the sport.

Thankfully, with Twitter making athletes more accessible these days, I was fortunate to exchange a few messages with Fujita.  Hoping he might know, I asked him if he had any idea who brought it up, if there was any opposition to adding the language, or if there was any substantial discussion on the subject.

Fujita’s response:

Not aware of any discussion on that. Our counsel is pretty progressive & on top of such issues, so I imagine this was worked out during the “lawyer” discussions when players weren’t around. There were multiple layers/rounds of discussions, and once Brady case was settled we entered into CBA related “union” discussions. At this pt players were in training camp, so we couldn’t be as involved, unfortunately.

Well, I guess it wasn’t Fujita.  So maybe it was the lawyers.  Or maybe it was Kraft.  Or maybe someone we’d never expect.

And that being the extent of my investigatory journalism efforts (and connections), I/we may never know.

Regardless of how it came to be, the progress is there.  Having explicit language protecting the class is a big step towards helping a player come out while actively playing.  There may still be fears of abuse from fans or opposing players, but at least a gay player can be protected from being cut from a team, or from any other adverse action, coming from the organizational level.  (I’m assuming there is some strong enforcement/remedy provision in the CBA to give the non-discrimination language some teeth.)

With allies like Kraft and Fujita in the game, we’ll get there.

David Boies, Jim Polian, NFL, NFLPA, Robert Kraft, Scott Fujita, Ted Olson, twitter, Yahoo Sports