Where is the Line? Options for Professional Leagues and Teams Facing On-Field Player Social Activism

In July 2016, four players on the Minnesota Lynx WNBA team wore black shirts in support of the Black Lives Matter social justice movement. The WNBA fined the players, but later rescinded the fines. In August 2016, San Francisco 49ers quarterback Colin Kaepernick refused to stand during the national anthem protesting social injustice and police brutality. The NFL responded that “players are encouraged but not required to stand during the playing of the national anthem.” The teams’ and professional leagues’ responses to these acts of social activism reflects a level of uncertainty about the right response.

There are any number of reasons why a team or league may want to respond to an athlete’s social activism, including to maintain image or reputation, enforcing team or league norms, values, and expectations for players; or maintain good relations with other constituents, partners, or sponsors. Professional athletes’ exercise of their rights to speech, expression, and social activism are not new, either on or off the field. But teams and leagues are increasingly facing scrutiny by the media and the public to respond quickly and decisively to such acts.

How a team or league responds is not just a matter of form. Responding to a professional athlete’s social activism on the field carries a number of significant legal implications of which a league or team should be aware before it takes any responsive action, whether through a public statement, disciplinary decision, or termination. Below is an analysis of potential legal issues in responding to player social activism, and a guide for how to address acts of on-field social activism to avoid costly disputes or litigation based on the response.

First Amendment Rights of Players

The U.S. Constitution prohibits “state actors” from abridging freedom of speech. The NBA, NFL, MLB, NHL, NCAA, United States Olympic Committee, and other professional sports leagues and their member teams are private organizations, and therefore are not subject to the First Amendment claims from players generally. In rare circumstances, these entities can be deemed state actors if they are performing quintessentially public, governmental functions, but receipt of services or financial incentives from host cities is generally not enough to change a league or team’s status.

In contrast, public colleges and universities, high schools, stadiums that receive public funding and some high school athletic associations are bound by the Constitution, and must be particularly careful when their conduct may infringe upon a player’s First Amendment rights to freedom of speech and expression.

Limitations on a League or Team’s Response to a Player’s Conduct on the Field

Most professional sports leagues have their own constitutions and collective bargaining agreements (CBAs) that set the parameters for player conduct. Leagues exercise a significant amount of control over athletes’ actions, and can punish both players and, in some instances, teams for players’ conduct. Courts generally will review a league’s determination for abuse of discretion or to determine if the determination was reached without regard to the league’s stated process.

The MLB, NBA, NFL, and NHL all vest their commissioners with broad discretion to discipline professional athletes in the “best interests” of the sport. However, this discretion is guided by more specific policies.

League policies on the national anthem demonstrate different approaches to directing players’ conduct in a scenario that inherently invites expressive activity by players:

• The NFL requires that the national anthem be played prior to every game, and that during the anthem, “players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking.” The policy further provides that non-compliance with the anthem policy may result in discipline.
• The NBA and WNBA anthem policies require that “players, coaches and trainers are to stand and line up in a dignified posture along the sidelines or on the foul line during the playing of the national anthem,” but NBA Commissioner Silver has said that standing is an expectation, not a requirement.
• The NHL requires that the national anthem be played before games, but does not direct players’ conduct during the anthem.
• MLB and NASCAR have no official anthem policy.

These policies guide, and in some cases limit, whether a league or team can discipline a player for particular conduct during the playing of the national anthem at a game

How Should a League or Team Assess Its Response to a Player’s Conduct?

Before a league or team evaluates action relating to an athlete for social activism, it is critical that it take the following steps:

Assess where and when the act occurred. If the act occurred at a public educational institution or publicly funded stadium, there may be First Amendment implications for any disciplinary action. Courts have rarely found private professional sports leagues or teams to be “state actors”, and when they have, it has typically been with respect to policies or practices affecting the general public, not a particular athlete. Nonetheless, leagues and teams should be aware of and prepared for an enterprising argument that their relationship with state and local government is so significant that the First Amendment applies.

Consult the terms of the applicable CBA and any league rules, policies, or procedures incorporated therein, as well as the player contract.

• • The CBA defines the relationship between the league and players, and guides the league commissioner’s power to discipline players. The CBA often incorporates the league’s constitution, by-laws, and any other league rules. These documents along with applicable stipulations in the player contract provide the rules of the road.
• • What conduct is prohibited? Generally, league rules permit the commissioner to discipline players for conduct that is detrimental to the integrity of or harms public confidence in the sport. This provides the commissioner with very broad, discretionary authority. Do any other agreements modify the CBA or applicable league rules? Has laxity in league practices waived the prohibited conduct at issue? Are these other agreements enforceable?
• • What disciplinary process and standards must be followed? Do the league rules set forth a particular process that must be followed before disciplining a player? Who must be involved in this process? Does anything in the CBA modify this process, or impose additional requirements? Leagues and teams must ensure that they follow the applicable procedures carefully to be successful in inevitable and subsequent appeals, arbitration, or lawsuits for breach of contract.

After consulting all applicable agreements, determine the appropriate action and public messaging, if any, taking into account the potential consequences of disciplinary action. The suspension, fine, or termination of a player contract for activism may be permitted, as long as it is done consistently with applicable rules governing player conduct and is not targeted to prohibit certain forms of protected speech. However, teams and leagues should be aware of the ancillary effects of discipline, including termination:

• • Under some player contracts, the player will be owed money if the employment relationship ends before the contract term expires. Examination of financial implications must be part of the prospective thinking.
• • Failure to follow applicable rules and process—including the standards and procedures for imposing discipline—could lead to arbitration or a potential lawsuit, which could be costly and bring negative publicity. Know the rules of the road for disciplining a player.
• • Other players’ voluntary departures, angry fans, and defamation lawsuits are all possible consequences following the discipline of a player. Teams and leagues should anticipate these potential responses, and consult counsel on a comprehensive legal strategy, which should inform the messaging strategy.

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