A question decried as inappropriate to a football prospect during a scouting event for the National Football League about whether he “likes men” is one example of a situation that wouldn't fly in a typical job interview.

But the NFL is not considered a traditional employer, subject to labor laws and workplace rules.

DeMaurice Smith, executive director of the NFL Players Association, says he strives to make sure players are treated like employees—from health and safety and protection from discrimination to free speech. The NFL said it was investigating the prospect's interview at the NFL Scouting Combine.

“There are certain duties and obligations that an employer has to an employee. I take football out of it,” Smith said in an interview with The National Law Journal. “The role of the union is to treat this as a business.” He added, “We call it the myth of the football exception.”

Last year, the NFL also took center stage—and drew the ire of President Donald Trump—as players participated in a silent protest, taking a knee during the National Anthem. The danger of concussions and long-term injuries are primary questions about how best to protect players.

Smith, formerly a partner at Patton Boggs and Latham & Watkins, spoke to the NLJ this week about a range of issues on the union's plate and the association's advocacy for players. The following conversation was edited for length and clarity.

NLJ: What was your take on the interview question allegedly posed during the NFL Scouting Combine?

Smith: While people certainly love our game, we have always stressed that our game takes place in a business framework and there is no reason whatsoever to exempt employers from their obligations to employees or future employees that you would expect at any business.

Questions like that or conduct like that we think is in violation of players' individual rights or those of a potential employee. Those are rights that are not going to just disappear because we are in football paradigm. We have a history of employers asking inappropriate questions at the combine and engaging in unlawful practices and it needs to stop.

It's difficult for us to weigh into those issues legally because we don't have standing. The players who are at the league's exclusive, nearly exclusive, job interview process are not NFL players as of yet. They have also declared for the draft, so they are no longer protected by the NCAA. That doesn't mean we won't speak out when these actions are utterly inappropriate.

Would this behavior be tolerated in a typical employment environment?

The only reason the league has the ability to do this at the combine is because they are the only employer. That's one of the greatest manifestations of their market power. First of all, employers don't want to engage in inappropriate behavior for moral reasons, but the second is that it's against the law. What does still exist in football—and one of the things we fight against the most—is the idea that there is a football exception, whether it's in compliance with the law or compliance with moral norms.

Take another example. Awhile ago the league office had this idea of penalizing players for bad language used on the field. OK, I understand, but if you are unwilling to enforce those rules against coaches who talk to players, then what are we doing? To at least my recollection, I've never heard of the league or team penalizing a coach for inappropriate or offensive language to a player.

The remedy is for the commissioner and chairman of the board to say there isn't an exception for football when it comes to compliance with the law.

Long-term consequences for football players—concussions, for instance—have been in news in recent years. What's the union's response?

It's important to know about long-term consequences. The only way you prevent them from happening is instilling the right process on the front end. It's important for players to have the right information and right data coming to them.

For example, when our neurologist said the best way to decrease concussions is to decrease exposure to the events that cause concussions, we looked at the number of times our players are in contact situations. The idea here is to find best scientific answer and then employ the best procedures and practices.

That's why that falls squarely into the world of labor. If you allow a paradigm to ignore what is in the best health and safety obligations of the employer and the employee—that's where it breaks down. For me, how we make a decision what's at the top of the union's plate is influenced by the same reasons why people were influenced after reading [John Steinbeck's] “In Dubious Battle” on what went on in the slaughterhouses in [19]40s and [19]50s. Those things were impactful because they demonstrated the extent to how much employees were at the mercy of employers.

The entire structure of labor law for the most part has been a history of how to improve the world of the employee and trying to instill laws where they were not simply at the mercy of the employer. Working conditions, wages and hours: All of those things that were created by the law to make sure that the employer didn't use their bargaining leverage to make the employees work in the conditions all of us would consider unsafe or unfair.

What's your take, from a legal perspective, on what happened last year during the players protest and how President Donald Trump waded into the debate?

I don't spend a heck of a lot of time thinking about the views of the president, as much as I think about the rights of our players as citizens of the country. When it comes to that issue, we have been abundantly clear about the rights of our players as citizens. I've never shied away from what I believe are the rights and obligations of our players as citizens. To me, when I see players who are interested in social issues who want to support social issues or protest what they believe are failures in our system and hopes that our system can be better, do I believe that right to free speech should be protected? 100 percent.

The players spoke with one voice in response to people who had negative things to say about them. In many ways, it reflected the best of what our country stands for. Yes, we can live in a world where people have a difference of opinion and I'm positive that not every player on every team felt the same way about the anthem protest but when they were challenged—on that weekend—every team and every owner took a knee.

As far as the labor context, can a boss fire you for speaking up for a social issue?

The question is, “Are there reasonable restraints on what an employer can do?” Sure. There is a tremendous amount of law on what that means. It's not my job to come up with opinions about what the law means—because you have questions and different positions taken by employers over the course of time. At the end of the day, we didn't have the litigate the issue because of the position of the commissioner and the chairman of the board of the NFL. They recognize the rights of the players to protest.

What's next for you and the union?

The work continues. We are a labor union. We don't shy away from those things at all. In the next week or so, I go through mountains of injury data from the last year and we have changed the way in which—the league and union—not only compiles that data but analyzes that data. We have the ability to analyze on a granular level injury statistics. I take the next month or so to work with our team on data analytics and we meet Mackey-White [Health and Safety Committee], which we set up in 2010 that was first step to address the issue of concussions but now we've expanded the charter to look at overall injuries.

We recruit the best physicians and best scientists and the best analytical minds we can find in the country. That's how we came up with changing the off-season schedule when it comes to physical contact. I can tell you we've had a significant increase in shoulder injuries to defensive backs and linebackers. We want to understand why that's happening. There is a statistically significant difference in injuries on grass fields and turf fields. We are starting to look at that issue in a more granular way because we have more years of data. Last thing, we have significant pieces of litigation ongoing and myself and the rest of the staff are involved in those. We don't make apologies for being an aggressive labor union.