Even though only 19 percent of Americans surveyed by the Public Religion Research Institute said they would oppose a lesbian or gay athlete signing onto a professional sports team, there are still many obstacles that exist to LGBTQ players being out in pro sports.

Women have been coming out publicly in professional sports for years, but men in the big leagues have faced a great deal of obstacles keeping their positions on teams.

As more and more professional athletes are coming out, what are the legal rights and difficulties of LGBTQ athletes in professional sports?

Out Athletes in Pro Sports

Not only have queer women been coming out publicly in professional sports for quite some time, several have been actively outspoken against homophobic laws. Speaking out against Minnesota’s 2012 attempt to ban gay marriage in the state, WNBA star and Olympic gold medalist Seimone Augustus told the Associated Press:

I felt like it was the perfect time for me, being on a platform where I can make a change with my voice and my situation… Maybe inspire someone else to come out and be comfortable with themselves. Or maybe someone else’s parents will see my parents saying that it’s OK to be with your child and love your child unconditionally regardless of your sexual preference.

This outspokenness accompanies the activism of fellow out WNBA star Brittney Griner against the constraints placed on her at Baptist school Baylor University.  Griner has commented candidly on the hypocrisy of homophobia in sports:

The more I think about it, the more I feel like the people who run the school want it both ways: they want to keep the policy, so they can keep selling themselves as a Christian university, but they are more than happy to benefit from the success of their gay athletes. That is, as long as those gay athletes don’t talk about being gay.

We’ve got a culture that is OK with casual homophobia and sexist language… What Jason Collins’ presence does–now people have to be held accountable. Because what people said before was, ‘Well, he said that, but he wasn’t talking to anyone, and no one’s gay here, so no one’s offended by it.’ Now that Collins is in existence, people realize there are more Jasons out there, more Michael Sams out there, that when you say something homophobic, you’re actually affecting someone who you truly believe exists now.

Rights and Responsibilities

Advocates of LGBT rights in professional sports have argued that it is the responsibility of professional sports leagues to proactively protect players–and coaches and staff–from discrimination.

In Sam’s case, however, Dr. John Fitzgerald Gates, National Diversity Expert, Principal, and Chief Strategist of Criticality Management Consulting and Former Associate Dean of Harvard College, wrote the following about NFL Commissioner Roger Goodell:

(He) did nothing to assure that Sam would be treated with the respect and fairness accorded other players, or to protect him against being fired because he is gay. According to Goodell, in the NFL: ‘We do things the right way. We will give them that education and training. I hope that will solve the problem.’ But Goodell’s deduction is flawed, for if education and training solved discrimination we surely would have educated and trained our way beyond it by now. As with racial and gender bias, laws must be constructed and enforced to ensure equal protection to LGBT professional athletes. Goodell welcomed Sam onto the field of play without providing him the protection from discrimination that other players have, thereby leaving him uniquely and unfairly vulnerable. Goodell codified the NFL’s right to discriminate when he should have had the courage, like President Obama, to ban it.

It is worth noting that the NFL does, in fact, have provisions in place to protect players from discrimination and harassment based on their sexual orientation. Indeed, when the MLB spoke out against homophobia in the major leagues, it was following the precedent of the NFL, stating that:

Public Religion Research Institute: Ahead of Super Bowl, Nearly Three-in-Ten Americans Support Lifetime Ban for Football Players Who Commit Domestic Violence

OutSports: Trans Athletes

Sports Illustrated: Why NBA Center Jason Collins is Coming Out Now

Huffington Post: The Moment is NOW for Professional Sports to Ban LGBT Discrimination

Huffington Post: Michael Sam: The Practical and Legal Implications of a Gay Professional Athlete

CBS News: NFL Agrees to Do More to Protect Gay Players

Daily Mail: Basketball Star Brittney Griner Opens up About Being a Lesbian at Baylor University and How She was Told to Keep ‘Her Business’ to Herself

Jurist: How Four Major Sports Leagues Influence LGBT Rights

Think Progress: The Benchwarming Journeymen Who Changed American Sports Forever

Think Progress: Dallas Cowboys Cut Michael Sam from Practice Squad

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

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Midway into a new football season, there are certainly plenty of controversies surrounding the National Football League. Between the ongoing debate on concussions and player safety and the number of NFL players who are under public and legal scrutiny for their actions on and off the field, the NFL is no stranger to scandal. But one of the hottest topics for a while now has been the status of the Washington Redskins’ name. Read on to learn about the controversy, and where it now stands.

Washington Redskins’ History

Up until the 1970s, high school, collegiate, and professional sports teams across the country used mascots depicting Native American historical figures and culture to evoke values of courage, strength, and tenacity, in order to signify these values in the realm of sports. Fans became emotionally attached to these mascots and these symbols; showing their appreciation by performing rituals such as “tomahawk chops” and dressing up in makeshift Native American regalia to support their team. However, these mascots and rituals received backlash during the late 1960s and 1970s, as Native American advocacy groups brought attention to the stereotypical nature of these mascots and their negative portrayal of American Indian culture.

At the request of local tribes, many of these teams abandoned their mascots for less controversial ones, leaving a relatively small number left carrying names such as “Braves,” “Indians,” and the most controversial “Redskins.” In addition to a handful of high school and collegiate teams, five professional sports teams retain their use of American Indian nomenclature: the Washington Redskins, the Atlanta Braves, the Chicago Blackhawks, the Cleveland Indians, and the Kansas City Chiefs. Debate has raged over the past couple decades as to whether these teams and their mascots represent racial slurs and harmful, derogatory stereotypes; or whether they are merely evoking Native American culture out of respect and honor for their courageous spirit.

A lawsuit, which has bounced back and forth between various overturned decisions, was brought against the Washington Redskins in 1992 arguing that its name used a racial slur and should be changed. More resolute than ever in the face of this opposition, the team’s owner Daniel Snyder went on record in 2013 that the Redskins would “NEVER” change its name. In response, a bill was introduced to the House of Representatives in March 2013 by Representative Eni Faleomawaega of Samoa called the “Non-Disparagement of American Indians Trademark Registrations Act of 2013,” a bill that would essentially cancel all trademarks on the name “Redskins” and prevent future parties from trademarking the name. While the bill does not look likely to be passed, it raises interesting questions on the nature of Native American mascots and the legality of their use.

Cancellation of the Trademark

During summer 2014, the Washington Redskins trademark was cancelled by the US patent office. It was cancelled in response to a ruling by the independent Trademark Trial and Appeal Board (TTAB). As the Patent Office put it in its media fact sheet:

The TTAB — an independent administrative tribunal within the USPTO — has determined, based on the evidence presented by the parties and on applicable law, that the Blackhorse petitioners carried their burden of  proof. By a preponderance of the evidence, the petitioners established that the term “Redskins” was disparaging of Native Americans, when used in relation to professional football services, at the times the various registrations involved in the cancellation proceeding were issued. Thus, in accordance with applicable law, the federal registrations for the “Redskins” trademarks involved in this proceeding must be cancelled.

The lawyers and administration of the Washington Redskins have said that regardless of the Patent Office’s decision, they will continue to use the name, logo, and produce paraphernalia.

Media Response 

Within the last year or so, more and more TV newscasters, journalists, and media outlets have refused to use the word “Redskins.” Instead, they refer to it as the Washington Football team. As of this summer, the Washington Post announced that in its editorials it will not use the name of the team. As the editorial board put it:

While we wait for the National Football League to catch up with thoughtful opinion and common decency, we have decided that, except when it is essential for clarity or effect, we will no longer use the slur ourselves. That’s the standard we apply to all offensive vocabulary, and the team name unquestionably offends not only many Native Americans but many other Americans, too.

Who wants to keep the name as is?

Advocates of Native American mascots argue that they represent a respectful portrayal of the culture that highlights positive attributes and offers opportunities for cultural education and understanding. Throughout the debate, teams have maintained that their use of American Indian imagery is done with the best intentions of portraying values such as strength, courage, and pride. These portrayals, advocates argue, honor Native Americans and their ancestors, and serve as a respectful tribute to these proud nations.

While many Native American groups have been vocal in their opposition, a recent poll suggested that as much as 90 percent of Native Americans do not find these mascots offensive or harmful. If a majority of American Indians themselves do not have a problem with these mascots, advocates argue, then the mascots are not entirely the offensive, stereotypical caricatures that opponents have portrayed them to be. Additionally, many advocates argue that these mascots provide opportunities for cultural education that benefit Native and non-Native Americans alike.

Many teams, especially at colleges, work closely with local tribes to provide some form of educational tools for fans and visitors to gain an accurate representation of the Native Americans that their mascots portray. Many tribes are opposed to bans on the use of culturally sensitive mascots because these bans would scuttle potential opportunities such as these to create educational bridges to Native American culture and to promote a harmonious inter-cultural working relationship. To this end, some sports teams using American Indian mascots have received the support of local tribes in the interest of maintaining a respectful portrayal of Native American culture. Florida State University receives the support of the Florida Seminole tribe, which has provided input into decisions regarding the University’s mascot and sports ceremonies. In return for their support, the tribe receives numerous scholarships and reduced tuition for its youth seeking higher education. Advocates argue that this relationship is a vision of the positive effects that could result from the continued use of Native American mascots.

Who wants to change the name?

Opponents argue that cultural references such as the term “Redskins” are inherently derogatory and harmful to the way Native and non-Native Americans view American Indian culture. Merriam Webster states the term “Redskin” is “an offensive term and should be avoided;” Native Americans often equate it to racial slurs used against African Americans and Jewish individuals. Additionally, mascots such as the Cleveland Indians’ “Chief Wahoo” are considered racist caricatures that are equally offensive and should be changed in favor of less controversial mascots.

The recent uproar over comments by the NBA’s Donald Sterling has empowered arguments by opponents seeking to root out racial negativity in professional sports. Opponents argue that these mascots promote racial stereotypes that produce harmful psychological and societal effects on Native Americans. The American Psychological Association recently announced its support for the removal of Native American mascots after the publication of numerous reports revealed links between these mascots and a decrease in self-esteem of Native American youth. A 2004 paper published by Dr. Stephanie Fryberg, a cultural and psychological scholar and a registered member of the Tulalip Tribes in Washington State, uses empirical evidence to argue that these Native American mascots have a negative psychological effect on American Indians and a positive psychological effect on European Americans. Dr. Fryberg indicates that these mascots harm the self-confidence and sense of cultural identity of these youth, which could potentially contribute to lower achievement later in life.

Cancelling the trademark on the term “Redskins,” opponents argue, could provide a legal push for the Redskins team to finally change its name and bring professional sports into the standards of equality and anti-discrimination that the federal government expects. Opponents of Native American mascots argue that their concern is not only the way these mascots influence outsiders’ views, but also how Native Americans view themselves.

Conclusion

The Redskins’ battle to keep its name is really starting to look like a losing one. Although the argument has waged on for years, as the the trademark is now null and void, and members of the media rebel against the name, we may be at a turning point. Public pressure is on — it’s up to Dan Snyder to respond.

Resources

Primary

U.S. Congress: HR 1278 Non-Disparagement of Native American Persons or Peoples in Trademark Registration Act of 2013

Additional

CNN: Native American Mascots: Pride or Prejudice?

USA Today: 50 Senators Sign Letter Urging Redskins to Change Team Name

ESPN: Time to Rethink Native American Imagery

University of Colorado Denver: Do American Indian Mascots = American Indian People?

Think Progress: Native American Group: Fight Against ‘Redskins’ About More Than Just the Name

ESPN: Tribe Supports Native American Mascots

The New York Times: Amid Rising Discord Over Indian Images, FSU Has Harmony

CBS DC: How Many Native Americans Think “Redskins” is a Slur?

Oregon Live: Two Tribes Call State’s Native American Mascot Ban Disappointing

Washington Post: Lawmakers Offer Bill to Ban ‘Redskins’ Trademark

USA Today: Bill in Congress Challenges Redskins Trademark

HeraldNet: The Debate: Indian Names, Mascots For Sports Teams

Joseph Palmisano

Joseph Palmisano is a graduate of The College of New Jersey with a degree in History and Education. He has a background in historical preservation, public education, freelance writing, and business. While currently employed as an insurance underwriter, he maintains an interest in environmental and educational reform. Contact Joseph at staff@LawStreetMedia.com.

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Arbitrator Fredric Horowitz and his panel issued an arbitration decision on January 11 resulting in Alex Rodriguez’s suspension for the entire 2014 Major League Baseball season.  A-Rod vowed to appeal the decision in Federal Court, but what some may not know is that the beleaguered slugger already has a pending case against MLB regarding his steroid feud.

Rodriguez vs. MLB, Allan Huber “Bud” Selig was filed on November 26, 2013 in the United States District Court for the Southern District of New York following its removal from State Court by MLB. The Complaint alleges that Commissioner Bud Selig and other MLB officials have engaged in a systematic campaign of tortious interference in A-Rod’s existing business contracts and prospective business relationships. Specifically, A-Rod is alleging that MLB:

• Obtained evidence against A-Rod by filing a sham lawsuit to commandeer subpoena power.
• Leaked false stories to the press concerning A-Rod’s performance-enhancing drug (PED) use.
• Bribed witnesses with more than $200,000 to cooperate with their case.
• Impersonated security officers and threatened former ballplayers to receive testimony.

The case may not be a slam dunk for A-Rod, but it surely has a better chance of succeeding than his appeal of Horowitz’s arbitration decision. After all, A-Rod’s attorneys at Reed Smith LLP haven’t been the only detractors of MLB’s media blitz against A-Rod. But if the evidence against A-Rod was procured illegally and the conduct of MLB was malicious, why did the arbitration panel roundly rule in their favor? It’s possible that the panel was not concerned with the issue. On pages 27 and 28 of the arbitration decision, Horowitz noted that the panel would not rule on the alleged breaches of confidentiality and they did not have any power to enjoin third parties from breaching provisions of MLB’s Joint Drug Agreement (the arbitration decision, along with A-Rod’s appeal, can be found here). Considering Tony Bosch, MLB’s main witness, testified in the arbitration hearings, Horowitz may not have needed to consider the implications concerning other bribed witnesses.

Regardless of the outcome, the pending litigation should be interesting. The arbitration process had its fair share of fireworks, and if it goes to trial, his tortious interference case could be the grand finale.

Click here to read A-Rod’s Complaint.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Keith Allison via Flickr]

Andrew Blancato

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The MLB’s recent 65-game suspension of Ryan Braun has several important legal repercussions for both the league and the players involved in the Biogenesis scandal.  Although Braun will most likely avoid any criminal charges regarding the purchase of performance-enhancing drugs, it is important to note that the distribution, sale and use of illegal performance-enhancing substances is against federal drug trafficking and distribution laws.  In order to prevent such charges Braun will most likely refuse to answer questions about his statement of admission until after the statute of limitations passes.

Braun also faces the possibility of a defamation lawsuit from Dino Laurenzi Jr., the collector of his positive drug test in 2012, whom he publicly attacked after the test.  Braun stated that the testing process “broke down,” and that after the fact he “learned a lot of things” about his collector.  Despite Braun’s claims, evidence suggest that Laurenzi was following proper protocol throughout the test.  While Laurenzi may have some ground for a lawsuit, filing one would likely fail, as Braun never directly mentioned Laurenzi by name nor did he specify the “things” that he claimed to have learned about him.

Another important question concerns the Brewers’ ability to void Braun’s contract in light of his recent suspension and potentially contract-breaching actions.  According to his contract, Braun is entitled to $133 million over the next eight years as dictated by his 2011 extension.  Although he has been one of the best players in the league, the question of how much he benefited from performance-enhancing drugs remains.  The Uniform Player contract permits termination in the event a player “fails, refuses or neglects to conform his personal conduct to the standards of good citizenship and good sportsmanship,” which could easily be proven by his admission.  The primary obstacle that the Brewers face is the historic difficulty that teams have had trying to void contracts, sometimes with even more serious offenses.  As a result, they may decide to simply buy Braun out of his contract to save money rather than to void it altogether.

Lastly, Braun’s actions may have important implications for other players connected with the Biogenesis scandal, notably Alex Rodriguez.  Biogenesis director Tony Bosch has recently started cooperating with the MLB’s attorneys; however, his credibility may be harmed due to the league’s portrayal of him as a drug dealer in their lawsuit against the company.  Additionally, many argue that although Braun accepted his suspension without challenge, doing so does not create a precedent for the other players involved.

Although it has not stopped speculation, much remains to be interpreted by independent arbiters before penalties can be determined for related cases.

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Kevin Rizzo (@kevinrizzo10) is editor of Crime in America. An Ohio Native, the George Washington University senior was a founding member of Law Street. Contact Kevin at krizzo@LawStreetMedia.com.

Featured image courtesy of [Steve Paluch via Wikimedia Commons]

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

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