The tension between gay rights and religious freedom has spilled over into the world of sports broadcasting thanks to a lawsuit filed by former SMU and NFL running back Craig James.  James, who along with Eric Dickerson formed the “Pony Express” at SMU, lost his job with Fox Sports allegedly based on comments James made condemning gay marriage.  For James, the issue is one of religious discrimination.   The ultimate decision in the case may provide some insight into how courts will resolve this tension going forward.   

James had a 14 year career as a college football analyst with ESPN. But he left the network in 2012 to run in a primary for the Republican nomination for the U.S. Senate.  James lost the election to Ted Cruz.  In August, 2013 Fox Sports Southwest announced it had hired James as a college football studio analyst.  And that gig lasted until September 1, 2013 when Fox terminated James.   

According to James, Fox fired him due to statements James made during the Senate campaign.  Apparently, Tom Leppert, a candidate for the nomination participated in a gay pride parade.  In a debate, Ted Cruz criticized Leppert’s decision and an audience member then asked James about his views on gay marriage.  James responded: “I’m a guy that believes in a man and a woman . . . Adam and Eve—and what the Bible says.”  He concluded by emphasizing, that “as Christians we’ve got to stand up” regarding marriage.   

Shortly after the firing, a Fox VP for communications told the Dallas Morning News,  “We just asked ourselves how Craig’s statements would play in our human resources department. He couldn’t say those things here.”   

In his lawsuit, James claims a breach of contract, but in addition, he contends Fox discriminated against him based on his Christianity.  The complaint characterizes the damages as “irreparable” in that he has been unable to find work in the industry and endorsement deals have evaporated.    And so here we are.  On the one hand, an employer would prefer not to offend a sizable segment of the population and on the other hand, a television personality thinks he should be able to exercise his religion.  And his ability to exercise that right presumably includes the right to proclaim his beliefs.  I asked some colleagues who practice employment law for their thoughts.   

They noted that Fox will argue that it had a legitimate, non-discriminatory reason for terminating Craig’s employment. But they also pointed out that Fox may have a tough set of facts.  Here’s the problem.  It’s pretty clear that firing an employee based on his religious beliefs constitutes discrimination. Firing an employee for acting on those beliefs, though, may be lawful.  For example, if an employee insists on aggressively proselytizing in the workplace, the employer can order it to stop and fire the employee if it doesn’t.    

What does that mean for Craig James and Fox Sports?  From the complaint, it appears Fox decided to fire James for comments he made before he was hired, far away from the Fox studio.  So does that mean Fox terminated James because he disclosed his religious beliefs? And if so, that kind of sounds like they fired him not for any particular conduct, but rather for his beliefs. That may sound like a fine distinction, but it could be critical.   

At this point, we are at the kickoff stage.  The lawyers will engage in discovery, file motions and advance their legal arguments.  It’s way too soon to predict an outcome.  But it seems clear that courts will deal with this type of conundrum for years to come.