New York's Legal Efforts to Combat Sexual Orientation Discrimination in Pro Sports

Earlier this year I wrote an article titled Loaded Question: Asking a draft prospect about his sexual orientation could land a team in a legal minefield for Sports Illustrated (page 16, March 25, 2013 issue). The article centered on the legality of NFL teams asking college players about their sexual orientation.

This week I spoke with Reuters Legal as a follow up to the article and specifically about recent efforts by New York Attorney General Eric Schneiderman, who has invoked New York state’s human rights law, which protects employees from discrimination on the basis of sexual orientation, in warning leagues about sexual orientation discrimination. The NFL has responded by clarifying its policies and MLB and MLBPA have agreed to a new code of conduct barring sexual orientation discrimination.

The full interview is available to Westlaw subscribers but here is an excerpt:

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Reuters: Do you think these matters are in Schneiderman’s purview? Why or why not? 

McCann: My impression is that AG Schneiderman is well within his purview. For one, he is the highest ranking legal officer in New York and he’s entrusted with enforcing New York law. New York law clearly prohibits sexual discrimination in hiring. Second, the National Football League, Major League Baseball and Major League Baseball Players’ Association (not to mention several teams) are all headquartered in New York and a large extent of those leagues’ and union business activities run through New York. 

 
Reuters: Do you expect these policy efforts will make a difference in players’ and/or teams’ behavior in terms of the treatment and hiring of gays in sports? 

McCann: The policy efforts have already made an impact. The NFL has investigated teams that may have asked prospective players’ about their sexual orientation and the league has also pledged to aggressively enforce existing anti-discriminatory rules. MLB and Major League Baseball Players Association, for their part, have adopted a new code of conduct to strengthen protections against sexual discrimination. The more changes like these are made, the more I believe behavior will change.

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To read the rest, click here.

More fan speech

Here. A fan attended a Brewers game at Miller Park wearing a shirt of Ryan Braun's uniform, with "Fraud" in place of the name. An usher made her turn the shirt inside-out, which she did. Although when she went to the media, the Brewers immediately apologized, invited her to another game, and threw the usher under the bus. And that was the right move--that shirt was unquestionably protected expression that should be encouraged at a forum such as a ballpark--what better place to speak out about cheating in baseball.  Two other things.

First, Miller Park is 71% owned by the government (the Southeast Wisconsin Professional Baseball Park District), so it is a prime candidate for my arguments that through joint participation, the team becomes, at least for ballpark purposes, a state actor subject to the First Amendment and its limitations.

Second, note the vacuousness of the Brewers' statement, which toes the common line on ballpark speech:

We welcome the opportunity for fans to express their opinions. The only circumstances that would warrant us intervening is if someone were to display a message or item that would be considered offensive to other fans.

But every message potentially could be considered offensive to other fans. A friend of Ryan Braun or a member of his family easily would be offended by that shirt. Of course, that is not what the Brewers mean--that mean what they--as the governing authority--would consider offensive to other fans. But we don't allow the governing authority (when subject to the First Amendment) to decide what speech is OK and what is offensive.

Rage against the Infield Fly Rule

The Infield Fly Rule is back in the news and ticking off baseball fans, but this time because the umpires didn't call it. On Wednesday, the Minnesota Twins had runners on first and second with none out. The batter hit a low looping pop-up to the side of the pitcher's mound; the pitcher let the ball drop to the ground, then threw to first to start a double play on the batter and the runner on first (who had to be tagged out). Video here (H/T: One of my team of RAs looking at baseball games and reports looking for Infield Fly situations).

This certainly looks like a play warranting an infield fly call--it was a fair fly ball that could have been caught with ordinary effort in the appropriate game situation. And it did, in fact, lead to a double play (although not the double play the rule is designed to prevent), providing the defense the overwhelming advantage that the rule is intended to avoid. The crew chief explained the non-call as follows:

"For an infield fly, we look for if the ball has arc and if the fielder can catch it with ordinary effort and if the fielder gets comfortably underneath," said crew chief Ted Barrett, who was working third base. "That one definitely had enough arc, but the fielder has to get comfortably underneath the ball to catch it. That's the criteria that wasn't met."

Ironically, that explanation arguably makes the call worse. It looks as if the pitcher was standing still and waiting for the ball; he wasn't settled directly under it only because he already had decided to let it fall to the ground and wanted to be in good position to surround it and pick it up. The better explanation would have been that the ball did not have enough arc (the rule does not apply to line drives, so the umpires would have to decide whether this was more like a pop-up or line drive). If he truly wasn't settled under the ball, it's only because the ball wasn't hit high enough.

As always, the play tells us some things. First, note the shorthand the umpires have developed for when a ball can be caught with ordinary effort. Neither the rule nor commentary says anything about arc or the fielder being settled under the ball, but the umpires have adopted those visual indicators as indications that a ball is catchable with ordinary effort.

Second, this play is an example of why the IFR is necessary. Without it, double plays on intentionally not caught pop-ups are possible (watch the runner on first and see how hung up he is and how he has to retreat close to the base) and that infielders will intentionally not catch the ball to try for the double play. True, this did not produce the double play the rule is designed to prevent; had the batter been running hard to first, he probably would have beaten the throw (he starts running hard only when he sees the ball drop). But look at the :06 mark of the video--both base runners are about two steps off the base; the pitcher easily could have turned around and start a third-to-second (1-5-4, if you're scoring at home) double play on the base runners. The point is that many double plays would be possible if fielders could seek out multiple outs by intentionally not catching an easily catchable ball.