The current debate over pro sports athletes’ symbolic protests in public arenas touches on some basic First Amendment constitutional concepts – and unsettled areas of the law.
This weekend, the professional sports world was roiled by a call from President Donald Trump for team owners to fire players who kneeled in protest during the national anthem. In response, some athletes on professional football teams did kneel, while others joined arms with other players, coaches and team owners in a sign of unity. Their actions met with a mixed reception from fans and the press.
The dispute originates in a silent protest made by former San Francisco quarterback Colin Kaepernick last year. Kaepernick sat down during the playing of "The Star-Spangled Banner" during a National Football League preseason game. The NFL, in a brief statement at the time, said that "players are encouraged but not required to stand during the playing of the national anthem.” During the season, some players made gestures sympathetic to Kaepernick, while others criticized his actions. Contributing to the Kaepernick controversy was the inability of the former quarterback to get a new contract with an NFL team this season.
Trump’s call to action, made during a campaign stop in Alabama and then on Twitter, brought the issue to the forefront. One reaction came from Kaepernick’s former coach in San Francisco, Jim Harbaugh. "No, I don't agree with the President," Harbaugh told reporters on Saturday after a college game. "That's ridiculous. Check the Constitution." NFL commissioner Roger Goodell also criticized Trump but didn’t address any legal issues about the controversy.
So what would happen if the ownership of an NFL team decided to agree with President Trump, and attempted to discipline or even terminate the contract of a professional athlete who refused to stand for the national anthem? Most likely, it would not be a strict constitutional issue, as indicated by Harbaugh, but a labor-relations problem.
Almost all NFL franchises are considered private companies and NFL players belong to unions that negotiate contracts on behalf of their members. However, pro football players also perform on game day at sports stadiums that are financed by public, tax-payer money. Would a protesting athlete have First Amendment free speech protections standing (or kneeling) on a field that is a quasi-public forum?
A Marquette Law Review article from 2010 made an argument that a stadium’s field as a public forum for athletes is an unsettled issue. Its author, Marquette Law grad Nick DeSiato, concluded that a determination of a sports stadium as a public space with First Amendment rights is an “imprecise science” subject to different interpretations. While a stadium can be funded by public money, the private sports club using it must be considered a “state actor” for some First Amendment requirements to apply to permitted activities inside the stadium. (In most cases, the First Amendment applies to government actions, not actions taken by private companies.)
As for anthem protests, DeSiato cited one example from 2004, when baseball player Carlos Delgado refused to stand for the singing of “God Bless America” in a political protest against the Iraq War. Delgado’s act didn’t break a league or club policy, but the crowd reacted negatively against Delgado.
Florida International University law professor Howard Wasserman, in a 2003 legal study, said professional athlete silent protesting against anthems is one of several forms of “symbolic counter-speech.” The tradition of singing the national anthem at pro sports events dates back to the 1918 baseball World Series, Wasserman explained, and it has taken its own unique context at public venues.
“By definition, an anthem is a song or hymn of praise or loyalty for or to something else. The anthem comes to mean something more than its words and music, but acts as a musical or lyrical tribute to, or affirmation of, something else—the United States, the flag, and their underlying ideals,” Wasserman explained. “By participating, individuals adhere to and adopt the ideas symbolized in the song itself; by not participating, they send a different, contrary message,” he added.
In the case of Delgado and the current NFL players, there wasn’t a league ruling that punished the participants for their actions, and the First Amendment-public forum argument wasn’t tested. But back in 1996, National Basketball Association star Mahmoud Abdul-Rauf was suspended for one game for refusing to stand for a national anthem as a protest related to his religious beliefs. After his return, Abdul-Rauf stood and prayed during the anthem.
The real test of a sports league policy that punishes anthem protesters is in the labor relations arena. University of New Hampshire law professor Michael McCann, who is a recognized expert in sports law, wrote for Sports Illustrated over the weekend that technically, sports-team owners could fire protesting players, but “though it is by no means a sure thing.”
McCann explained that because the First Amendment only applies to government sanctions, “a player’s rights as an employee are largely determined by contract. There are two relevant contracts here: the player’s employment contract with his team and the collective bargaining agreement that governs the player’s working conditions as an employee of one franchise in a league.”
An NFL team that fired a player for protesting would not only need to deal with the players’ union and the arbitration process, but the terminated player could file a discrimination complaint with the Equal Employment Opportunity Commission or possibly file a defamation lawsuit, McCann said.
The resistance from the NFL players’ union would be significant. Union executive director DeMaurice Smith said on Twitter after President Trump’s statements that “we will never back down it comes to protecting the constitutional rights of our players as citizens as well as their safety.”
Also, NFL commissioner Goodell told Sports Illustrated on Sunday night that he didn’t expect the controversy and criticism to go away in his sport. “We live in an imperfect society. A public discourse makes us strong.”
Scott Bomboy is the editor in chief of the National Constitution Center.