<
>

Lawyer: Tough for Gay Player to Sue

I talked to a lawyer who knows a lot about the NBA this weekend, and he pointed out something that for some reason had never occured to me: that if the NBA locker room environment really is as anti-gay as we have heard it might be, there could be the potential for some kind of lawsuit. Imagine if lots of people were brazenly anti-gay at your workplace. Legal action would be on everyone's mind, right? Why not in the NBA?

Here's an e-mail exchange I just had with the official lawyer of the sports blogosphere, Michael McCann of the Sports Law Blog. McCann says there would be a lot of obstacles to any such lawsuit.

TrueHoop: Assuming both reports are true--that a handful on NBA players are gay, and that many NBA players are anti-gay--might the NBA, teams, and/or executives be vulnerable to some kind of hostile work environment lawsuit?

McCann: A hostile work environment claim would appear difficult to establish based on the available information. Usually a claim of that nature requires a high evidentiary threshold, and there would need to be specific evidence of an "abusive working environment"--an environment so oppressive that it would impair a player's psychological well-being and materially interfere with his on-court performance. A sufficient hostile work environment claim requires much more than merely offending or upsetting someone; it requires a persistent and typically long-term diminution of a person's well being, so much so that a court can validate that job performance has been materially harmed. I think that such a claim would be particularly difficult to establish in a professional sports setting, since it is hard to measure why a player hasn't performed as well as he could--maybe he's not getting enough playing time, maybe he's distracted by some personal matter, maybe he's not completely healthy, maybe his point guard doesn't like to distribute the ball on the fast break, maybe he's not working hard, maybe he's using drugs . . . there are so many possible causes, it would seem hard to tease out the effect of each one. Also (and obviously), just because many NBA players are anti-gay doesn't mean they are acting out on that prejudice; it is not against any rule to be prejudiced, but it is against many rules and laws to act out on certain prejudices. We would need to see specific instances of how a player has been harmed by those prejudices.