By Gary J. Chester, Esq.
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 recent shutdown of NBA, WNBA, MLS, and MLB games in protest of the shooting of Jacob Blake.
Given that athletes have historically shied away from expressing potentially polarizing social views (at least before the Twitter Era), the case law in this area is relatively sparse.
Some attorneys and legal scholars assert that the professional athlete’s right to free speech is governed solely by applicable collective bargaining agreements and league rules because the teams are private entities. But those documents tend to offer general standards, so they do little to clearly define the scope of an athlete’s right to expression. An example is the “Misconduct” section of the NBA Constitution and By-Laws, which empowers the Commissioner to fine or suspend any player whose conduct (or statement) is “against the best interests of the Association or the game of basketball…”
It is firmly established that the commissioners in the major professional sports leagues have broad discretion, as the courts have defined “best interests” in their favor. For instance, in Charles O. Finley & Co., Inc. v. Kuhn, 569 F.2d 527 (7th Cir. 1978), cert. denied, 439 U.S. 876 (1978), the court held that MLB Commissioner Bowie Kuhn could void the Oakland Athletics’ sale of star players Joe Rudi and Rollie Fingers to the Red Sox and Vida Blue to the Yankees in exchange for $3.5 million because Kuhn deemed the transactions as “not in the best interests of the game of baseball.”
In Rose v. Giamatti, 721 F.Supp. 906 (S.D. Ohio 1989), former Reds and Phillies star (and Reds manager) Pete Rose sought an injunction against MLB Commissioner Bart Giamatti holding a hearing on allegations that he improperly gambled on MLB games. Rose argued that Giamatti was biased against him and that the hearing would be unfair. In ruling for the commissioner, the court stated that if MLB were a typical business organization, then Rose’s contention might have merit. But the court recognized that MLB had granted the commissioner broad power not unlike that of an independent contractor, thus permitting the commissioner to hold a hearing even if he may have held some bias.
But the inquiry does not end with the CBA or league by-laws. It has been argued that under some circumstances, a team may become a “state actor.” If so, then the professional athlete might enjoy a constitutional right to free speech that must be balanced against the reasonable interests of the state entity. [For a discussion of the legal tests to determine if a team is a state actor that must respect First Amendment rights, see Nick DeSiato, Silencing the Crowd: Regulating Free Speech in Professional Sports Facilities, at 20 Marquette Sports L. Rev. 411 (2010).]
A prime 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 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 holding 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.
The rationale of Ludtke is more persuasive than the reasoning used in subsequent decisions holding that state actor status depends on the statutory language that created the stadium or whether the facility has traditionally permitted political or similar events. For instance, the Third Circuit held that the New Jersey Meadowlands Sports Complex (currently including MetLife Stadium, home to the New York Giants) is not a public forum because it has functioned as a commercial venture of the State of New Jersey. Krishna Consciousness, Inc. v. N.J. Sports and Exposition Authority, 691 F.2d 155 (3rd Cr. 1982). The court did note, however, that: “Even in a public forum, an important factor in determining the reasonableness of a restriction on First Amendment rights is whether the proposed activity is basically incompatible with the normal character and function of the place.”
Under this “commercial nature” standard, a sports league, with the assistance of the state, could conceivably ban all expression that is unrelated to sports by proclaiming any sports venue to be a commercial venture. It ignores the public nature of a sports franchise that has accepted state funds in one form or another to be able to play in a facility that was essentially built for the franchise and is open to the public on game days. The line between public and state conduct is so blurred in some cases that it is barely discernible.
Following Krishna Consciousness and other “commercial nature” cases, the Supreme Court decided Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288 (2001), where it found an athletic association with public and private school members to be a state actor. The key concept in the Court’s analysis was the “pervasive entwinement” between the state and the private entity. That was essentially the standard that the court used in Ludtke.
If the “entwinement” standard were broadly applied, a court would be less likely to find that a team is a state actor in privately-financed facilities such as Dodger Stadium in Los Angeles and Oracle Park in San Francisco, but more likely to find state action in New York, where $615 million in public subsidies helped to offset the $850 million price tag of Citi Field, home of the Mets. Payments that the Mets make on bonds that were issued as a subsidy offset property taxes for the life of the stadium; that is a lot of entwinement.
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 Kaepernick’s case, the home facility where the quarterback protested was Levi’s Stadium in Santa Clara, California, which was created and leased for the benefit of the San Francisco 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 pervasive, if not complete.
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.
