Sports and Entertainment Blog
Blog posts are edited by our board member- Taylor Dolan
Despite public influence, athletes contractually limited in capacity to protest By: Marissa Ditkowsky
It is no surprise that with their positions in the public eye and range of diverse backgrounds, athletic figures have been expressing their concerns about our current political climate and participating in greater social and political movements. The concern, however, is retaliation, and what actions the athletes’ employers can take in barring such protest.
Colin Kaepernick, quarterback of the San Francisco 49ers, made headlines in August when he did not stand for the performance of the national anthem to protest systemic racism against black Americans. Despite both public criticism and celebration, the 49ers released a statement: “The national anthem is and always will be a special part of the pre-game ceremony. It is an opportunity to honor our country and reflect on the great liberties we are afforded as its citizens. In respecting such American principles as freedom of religion and freedom of expression, we recognize the right of an individual to choose and participate, or not, in our celebration of the national anthem.”[i]
In the following weeks, many players across the NFL joined Kaepernick in his protest, including teammate Eric Reid, Jeremy Lane of the Seattle Seahawks, Brandon Marshall of the Denver Broncos, and more.[ii] Other NFL athletes protested in various ways as well. Richard Sherman of the Seattle Seahawks held a press conference in September at which he took no questions, but spoke for two minutes about police brutality in relation to the protests of his peers.[iii] Martellus Bennett and Devin McCourty of the New England Patriots, among other players across the NFL, raised their fists during or after the national anthem.[iv] Other teams, such as the Kansas Chiefs, have locked arms and stood in a united front.[v]
However, in other professional sports leagues, athletes that attempt to protest in the same manner as Kaepernick may face harsher consequences. Collective bargaining agreements, league rules, and independent contracts with clubs could serve as barriers for athletes who want to protest. For example, many league CBAs and team contracts include a clause allowing for punishment of any player that damages the integrity of the league or club. Extreme circumstances or forms of protest could be construed as damaging this integrity, given a broad interpretation. Although kneeling for the national anthem would likely not prove so extreme, other league rules specifically prohibit such an act.
The National Basketball Association (NBA) rules, for example, state 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.”[vi] Refusing to stand for the anthem could, therefore, put NBA players in breach of contract. This rule could explain why, up to this point, NBA players have not engaged in such protests, and why the NBA and NBPA sent a joint letter to players promising to take meaningful steps to resolve racial inequality that would not involve athlete protest in violation of league policies.[vii]
However, past NBA protests have, in fact, defied league policies. In December 2014, Cleveland Cavaliers athletes LeBron James and Kyrie Irving, and current and former Brooklyn Nets athletes Jarrett Jack, Alan Anderson, Deron Williams, and Kevin Garnett, wore black T-shirts that said “I Can’t Breathe” during warm-ups.[viii] The phrase was related to the death of Eric Garner, who died while in the chokehold of New York police officers. Although the shirts violated league uniform rules, the players were not fined.[ix]
The Women’s National Basketball Association rules contain similar language regarding the national anthem and uniform rules.[x] WNBA athletes have, however, joined in protest by kneeling for the national anthem. The entire Indiana Fever team kneeled during the national anthem of a first-round play-off game in September.[xi] Two Phoenix Mercury players joined the Fever athletes in kneeling. None of the players have been fined.[xii]
In the past, WNBA teams have also defied league policies. Teams New York Liberty, Phoenix Mercure, and Indiana Fever were initially fined $5,000, plus $500 per player, for wearing plain black warm-up shirts in solidarity with Black Lives Matter in July.[xiii] The fines were eventually rescinded, however.[xiv] Although the fines evidently did not prevent Indiana Fever from kneeling during the national anthem, such fines do carry a chilling effect for free speech of athletes, even when the fines are technically and legally in line with WNBA rules.
An athlete has very few legal options for challenging a fine imposed by a club or league in response to that athlete’s protest. Should an NBA or WNBA athlete, for example, believe he or she has been unfairly sanctioned for violating league rules by protesting during the national anthem at a game and decide to file a lawsuit, such a case would likely be dismissed. While professional athletes’ right to protest during the national anthem might appear to be an issue of free speech, private individuals and organizations, such as leagues and teams, are not bound by the First Amendment. Additionally, contractual obligations bind players to their terms and set out disciplinary possibilities.
Statutory relief is also unlikely. Even the states that are most protective of employees, such as New York, only protect legal off-duty activities that do not compete with the employer’s business-related interests, take place on the employer’s property, or use the employer’s equipment.[xv] If protesting on-the-job and using their influence is important to athletes in all leagues, they should consider renegotiating their contracts to include such a protection. It is possible that the rights of an athlete to protest could be a matter for further negotiation, discussion, and inquiry in deciding future seasons’ rules and contractual agreements.
[i] Steve Wyche, Colin Kaepernick Explains Why He Sat During National Anthem, National Football League, Aug. 27, 2016, http://www.nfl.com/news/story/0ap3000000691077/article/colin-kaepernick-explains-why-he-sat-during-national-anthem.
[ii] Mark Sandritter, A Timeline of Colin Kaepernick’s National Anthem Protest and Athletes Who Joined Him, Nov. 6, 2016, http://www.sbnation.com/2016/9/11/12869726/colin-kaepernick-national-anthem-protest-seahawks-brandon-marshall-nfl.
[iii] Andrew Joseph, Richard Sherman walked out of his press conference after a strong statement against police brutality, Sept. 21, 2016, http://ftw.usatoday.com/2016/09/richard-sherman-press-conference-police-seattle-seahawks-nfl.
[iv] Sandritter, Timeline.
[vi] National Basketball Association, Official Rules of the National Basketball, 2016-17, Accessed Dec. 11, 2016, https://turnernbahangtime.files.wordpress.com/2015/11/official-nba-rule-book-2015-16.pdf.
[vii] Brian Winhorst, NBA, players’ union outline joint ‘meaningful action’ plan in letter, Sept. 22, 2016, http://www.espn.com/nba/story/_/id/17608163/nba-players-union-eye-options-anthem-protests.
[viii] Chris Strauss and Nate Scott, LeBron James, Kyrie Irving and Nets players wear ‘I Can’t Breathe’ shirts before Cavs game, Dec. 8, 2014, http://ftw.usatoday.com/2014/12/kyrie-irving-i-cant-breathe-t-shirt-before-cavaliers-eric-garner-lebron-james.
[ix] Winhorst, NBA, players’ union outline joint ‘meaningful action’ plan.
[x] Women’s National Basketball Association, 2016 Official Rule Book, Accessed Dec. 11, 2016, http://www.wnba.com/wp-content/uploads/sites/27/2016/05/2016-wnba-rule-book.pdf.
[xi] Mechelle Voepel, Entire Fever Team Kneels During National Anthem; 2 Mercury Plyers Join Them, Sept. 22, 2016, http://www.espn.com/wnba/story/_/id/17606361/entire-indiana-fever-team-kneels-national-anthem.
[xii] Winhorst, NBA, players’ union outline joint ‘meaningful action’ plan.
[xiii] Associated Press, WNBA fines Indiana Fever, players for wearing black shirts in wake of recent shootings, July 21, 2016, http://fox59.com/2016/07/21/wnba-fines-indiana-fever-and-two-other-teams-and-players-for-wearing-shirts-in-wake-of-shootings/.
[xiv] Voepel, Entire Fever Team Kneels.
[xv] NY Labor Law § 201-d (McKinney 1993).