Professional athletes traditionally shy away from political and social issues. One reason is the risk of losing lucrative endorsements. “Republicans buy sneakers, too,” Michael Jordan famously said in explaining his reluctance to become politically engaged. (He later claimed that he was joking.)
Another reason is fear of backlash: Rather than support Colin Kaepernick’s plea for social justice, the NFL in 2018 adopted a policy of requiring players to stand for the national anthem. (League commissioner Roger Goodell later conceded that the NFL had mishandled the controversy.)
But to what extent, if any, do professional athletes enjoy a right to free speech when they are on the job? Can teams or leagues discipline athletes for using their celebrity status to express their opinions on controversial issues while they are at the ballpark?
The reluctance of many athletes to protest appears to be diminishing in view of their increasing use of social media and as evidenced by the shutdown of NBA, WNBA, MLS, and MLB games in the summer as protest of the shooting of Jacob Blake.
The protest raised the question of whether professional athletes have a legal right to protest while they are on the job. The answer is unclear.
The First Amendment guarantees one’s right to freedom of speech. The Bill of Rights applies to state or governmental intrusion upon individual freedoms; it does not generally protect persons from private employers who may impose restrictions on individual freedoms at work.
A prime example of the limits of freedom of speech is the recent development at Goodyear. The automotive company prohibited political displays and other types of speech on the job, irking President Trump and some of its employees. But Goodyear is a private business and not a government agency, so it may limit employee speech.
Since professional sports teams are private entities, they too can limit speech by players and other employees while they are on the job. But there are exceptions to the general rule.
If a team’s operations are connected with or entwined with the government/state, the law may consider the team to be a so-called “state actor.” If a team is a state actor, then the employees enjoy First Amendment rights.
One example of a team becoming a state actor is when the team leases a public facility that has been created, improved or leased for the benefit of the team. For example, in Ludtke v. Kuhn, 461 F.Supp. 86 (S.D.N.Y. 1978), the court held that Yankee Stadium was a state actor and a ban on women reporters in the clubhouses of MLB teams constituted a violation of the First Amendment. Ludtke was a reporter for Sports Illustrated who covered the 1978 World Series between the Dodgers and the Yankees. She was barred from entering the team clubhouses after Commissioner Bowie Kuhn communicated MLB’s policy against allowing female reporters to enter the team’s dressing rooms to the Yankees and the City of New York.
Here are three of the key points the court emphasized in determining that the Yankees were a state actor:
- “The City acquired title to Yankee Stadium and the land surrounding it by exercise of its power of eminent domain upon a factual showing, approved by the Supreme Court of the State of New York, Bronx County, that purchase of Yankee Stadium was required for a ‘public use.’”
- The city and the team were interdependent in that “profit from its [New York’s] lease with the Yankees escalates when attendance at Yankee games increases.”
- New York essentially “rationed” out a public resource for the benefit of one user, rather than make it available to anyone on a first-come, first-served basis.
Under this “entwinement” standard, a professional sports team is less likely to be a state actor if it performs in a privately-financed facility such as Dodger Stadium in Los Angeles or Oracle Park in San Francisco. But the New York Mets would likely be a state actor because of the massive public subsidies that have been used to offset the $850 million cost of Citi Field. The Mets, unlike the Dodgers and Giants, are substantially tied to the state.
Thus, if a sports franchise playing at its home venue is a state actor, then the First Amendment rights of athletes to engage in political speech are tempered only by a team’s compelling interest. In other words, an athlete could protest at a game unless the protest interferes with the playing of the game (because the team has a compelling interest in the smooth operation of the game).
In the case of Colin Kaepernick, the San Francisco 49ers quarterback who knelt during the national anthem to protest racial injustice, his home field was Levi’s Stadium in Santa Clara, California. That stadium was created and leased for the benefit of the 49ers to a far greater extent than Yankee Stadium had been built for the Yankees. The 49ers are more than a favored tenant; they manage the venue and profit from booking and hosting unrelated events such as rock concerts and college football bowl games. Santa Clara essentially rationed the public stadium to a single user and thereby transformed the team into a state actor. The public-private entwinement is substantial.
Since Kaepernick’s protest took place prior to the game and did not interfere with its playing, the act of kneeling during the national anthem was protected speech.
In contrast, when MLB, NBA and other athletes boycotted and effectively postponed events as part of the ongoing social protests, they arguably enjoyed no First Amendment protection because they fundamentally interfered with the events. Athletic organizations enjoy a substantial right to stage their competitions as planned and this right would outweigh the participants’ right to free expression. Fortunately, the governing bodies of the events ceded to the players’ wishes and thereby averted a legal and social controversy.
Should owners and organizers be less accommodating to activist athletes in the future, things are sure to get a lot more interesting — both legally and culturally.
This post originally appeared in the Sports Litigation Alert, the leading sports industry publication.