Your Boss Can’t Ask How Many Testicles You Have. Why Can NFL Coaches?
Amid the 40-yard-dashes and 225-pound bench-presses of last week’s NFL combine, one cornerback hopeful faced a less expected form of screening. A prospective team reportedly wanted to know: Did he have both of his testicles? “I was like yeah, I don’t know why you got to ask,” Kris Boyd, a senior at the University of Texas, told ESPN‘s Jeff Legwold.
The NFL combine—and similar job-interview screening procedures in other professional sports like basketball, soccer, and hockey—are a unique part of the hiring process for pretty unique jobs. But whether that process squares with federally-required employment-law protections isn’t always clear. Professional sports teams screen prospective players though tests, questioning, and scouting in ways that would certainly be unusual for the interview process of a desk job. But is it legal for teams to ask how many testicles a player has? Does the law apply differently to professional sports leagues and their members than it does to, say, a construction company or marketing firm?
“There is no difference,” says Michael Harper, a labor-law expert at Boston University with a specialization in law and sports.
However, relevant legislation, such as the Americans With Disabilities Act (ADA) and antitrust law, sometimes applies very differently to pro sports than it does to other industries, according to Matthew Mitten, director of the National Sports Law Institute at Marquette University. “Because the industry is unique, there’s certain conduct that the clubs can do that would be illegal in other industries,” he says.
The ADA, for example, includes an exemption for inquiries into the ability of an applicant to perform job-related functions. That might provide teams a plausible defense of the line of inquiry into the number of testicles a prospective employee has. “As long as there are legitimate physical qualifications for the job, the league and the clubs can establish them,” says Mitten. “It’s not that the league gets leeway that other employers don’t—if Google or whomever can prove that ‘Hey this is a legitimate qualification; we had analysts dropping dead’—they may well be able to ask about it as well.”
This exception bears a relationship to the way that Hooters and similarly-minded establishments are able to hire almost entirely women, despite the explicit protections against gender discrimination in the Civil Rights Act of 1964. “Typically, gender based hiring is not permitted,” a restaurant spokesperson told Business Insider. “The law allows the discrimination when it is necessary for the purpose of authenticity or genuineness as for an actor or fashion model.”
This loophole defense was first articulated by Hooters during a sex-discrimination lawsuit it faced in Illinois in the late ’90s. The company argued that its “Hooters Girls” were a central part of its appeal, and a court agreed. As a local patron told the Chicago Tribune following the ruling, “People come here for the motif, if you know what I mean.”
Pro sports leagues avoid blanket regulations about preventing people with specific diseases or particular physical abnormalities from the industry. An explicit league rule excluding players missing a testicle or, say, players with heart conditions would likely violate the ADA. As a result, generally, teams defer to the discretion of doctors about the safety of players.
Nonetheless, the testicle question might well be a violation, even for the NFL. “Having one testicle would definitely be considered an impairment under the ADA,” Harper says. “So that’s probably an illegal question of any employees because you can’t ask employees whether they have some kind of impairment. … You can inquire about the ability of an applicant to do the job, but having one testicle? That has nothing to do with football. It’s inquiring about disability.”
Also of dubious legality, according to Harper, is the NFL’s Wonderlic Test, an intelligence test that was historically used by some branches of the military. The test includes questions like “LOST is to WOODS as _______ is to SEA?” and “Counting from 1 to 100, how many 6s will you encounter?” Many NFL greats, such as Hall-of-Famers Brett Favre and Dan Marino, have scored poorly on the test. Multiple studies have found no link between the test’s results and NFL performance. “Whether they can defend the Wonderlic [in court], that would be interesting,” Harper says. “It would depend on whether having a very low IQ would be protected as a disability.”
Although, sports and other industries are covered by the same employment laws, even if applied differently, there are some unusual laws that do apply to athletes and their bosses, and not to many other professionals—all because the players are unionized, unlike at least 89.3 percent of United States workers.
Player unionization has not only resulted in marked salary-increases for players compared to the pre-union days, but also provides leagues with unique antitrust loopholes for their monopolistic and collusive behaviors. While employment law permits NFL teams to ask many weird questions at the combine, player unionization allows the league to determine how players are treated in salary and employment negotiation without antitrust federal oversight.
“The rules of the game, all of the league constitutions, the scope of the commissioner’s authority—it’s all the product of an agreement among league clubs,” Mitten says. “These agreements potentially restrain trade, hurt someone’s economic interest. Each high-level professional sports league is a monopoly.”
However, courts have tended to give leagues the benefit of the doubt, because sports require cooperation between teams—facilitating trades, coordinating the playoffs—unlike most other industries’ business operations.
In the 1920s, the Supreme Court ruled professional baseball exempt from antitrust prosecution, under the questionable logic that it didn’t constitute interstate commerce, despite the fact that games were played across many different states at the time. Since then, the courts have come to their senses for all other professional sports, ruling them interstate commerce. However, baseball retains its historically anomalous antitrust exemption.
All professional team sports leagues, and not just baseball, are exempt from antitrust law with regard their labor market: how the players are treated. Since the players are unionized, they are governed by labor law and the collective bargaining agreement instead. This allows teams to enforce strong restrictions of players, such as salary caps and requirements that players sign with the team that drafts them rather than the highest bidder.
However, the leagues can only restrict the players this way when they are unionized. “If the union decertifies, they’re not bargaining for the players, then they can probably bring an antitrust case,” Harper says. “In fact, the NFL Players Association, and the National Basketball Players Association and the Hockey Union too, considered it in negotiations around 2011 [and 2012]. They tried to disband the union and bring an antitrust case.”
During 2011 contract negotiations, the NFL planned to enforce a lockout of its players, during which the players would not be paid. In an attempt to prevent this action, the NFL players’ union temporarily disbanded, and a cadre of players, including Tom Brady and Drew Brees, sued in protest of the league’s anti-competitive actions under antitrust law.
An eighth circuit court initially issued an injunction in favor of the players, ordering a stop to the lockout. But after the NFL appealed the decision, both sides eventually settled to allow for a 2011 season—and for future seasons in which prospective players might be asked how many testicles they have by a coach.